Wythe Co. VA Superior Court of Chancery
Beaty et al vs Clark et al
File # 1821-04-SC
copied Jul 04 from the original documents
transcribed Aug. 04 by D. Powell [paragraphs added for ease of reading]
[outside cover]
James Beatie & others)
Answers
Clark & others )
John Clark & wife and David Beatie
Filed 27 Jany. 1821
To the Honorable John Brown Judge of the Superior Court of Chancery holden at Wythe Court House
The joint answer of DAVID BEATY and JOHN CLARK and Mary his wife and the said John as administrator with the Will annexed of David Beaty dec’d to a Bill exhibited in this Court by James Beaty & others against these defendants.
These defendants saving all exceptions say that they admit that David Beaty the elder on the 30th day of July 1805 duly made and published his last will and Testament, as set forth in complts Bill and that the said David Beaty the elder departed this life on or about the 25th day of April 1814 without revoking or altering said will. They also admit that letters of administration with the will annexed was granted by the County court of Washington at the May term 1814 upon said David, the elders, estate to the defendant John, who in the year 1812 intermarried with Polly the daughter of the said David the elder.
They also admit that between the time of making said will and the death of said David dec’d there were Born of the female slaves of the said David 9 children as stated in complts bill and that one of them died. That during the life of the “testator” he gave the respondent Polly a negro boy James aged about four or five years, and worth about $150 – in addition to the slave Fanny mentioned in the will – and that he gave to the respondent David the slave Eliza about 15 months old in addition to the slave mentioned in the will.
The Respondent John states, that in a short time after his qualification as administrator as aforesaid, he had all the personal estate of his testator appraised, amounting in the whole to $3,230.50; $2,370.50 part thereof being devised by the will, and being the whole of his estate except the six slaves herein after mentioned, was given up immediately to those entitled where possession had not been before obtained, this respondent, having taken no farther control over it, after the appraisement. There were six slaves which it was supposed, had not been disposed of by the Will. To wit Bob about 9 years old appraised to $330, Nancy about 5 years old appraised at $150, Charles about 5 years old appraised at $150, Delilah between 3 & 4 years old appraised at $120, Anthony about one year old appraised at $40 and Anna, a child about the same age appraised to $50.
These respondents would also state that on the 26th day of August 1814, these respondents together with James Beaty, John Beaty, William Beaty & Armstrong Beaty, all being of full age met at the house of Mary Beatie, the widow of said David dec’d for the purpose of making an amicable and a friendly disposition of said slaves, and it was then and there agreed by the whole of the representatives of said David deceased, including his widow (to prevent law suits & controversies) that the appraisement of the appraisers of said slaves, amounting in all to $860 should be taken as the value of them and each of them, and that that sum should be divided equally between the six children and the widow, she agreeing to take and they all agreeing to give her a child's part, making seven shares, there being but six slaves it was agreed that one of the shares, should be money, upon dividing by 7 it was found that one of the shares would be $122 and the balance $123 each, they then agreed to cast lots, who should take the $122 share, which chance threw upon this respondent David – It was then agreed by all parties that they should cast lots for the 1.2.3.4.5.6.7 choice and it was agreed that those who took slaves, appraised to more than their equal share, should pay so much in money as would make each share equal, and that the purchaser should have a credit for 12 months for the excess, paying interest thereon from that day – any one that had a choice might take the money share or a slave – while a person present was preparing the lots, it was suggested, that it was probable the parties could agree themselves without putting it to chance, the attempt being made, it proved successful.
The complt James took Nancy, this respondent John took Bob, the defendant David, [took] Charles, Mary Beaty the widow took Delilah, Armstrong Beaty [took] Anthony and William Beaty [took] Anna. Complt James thereupon executed his note to this respondent John for $27 to bear interest from the date payable in 12 months and the defendant David gave his note for $28 – payable as aforesaid. John Beaty of course took the money share. Upon his being asked by the respondent David, if they were proceeding legally, the complt James observed that the consent of parties took away error; each took the slave that was selected immediately into possession and retained him or her. The complt James in 1817 paid this Respondent John the money due on his said note.
These respondents also admit that Mary Beatie the widow of said David Decd departed this life on or about the 8th day of January 1820 having first duly made and published her last will and testament which among other bequests, she gave her slave Milly (who died in March 1820) to the female defendant and set free her two slaves Joe and Rachel and also gave a negro girl Jinny (being the child of Milly born after the death of her deceased husband) to Polly Beaty the daughter of complt James. She also made the complt James her sole executor, who proved the said will in the county court of Washington and took upon himself the bur__en of the execution thereof – They also admit that complt James having obtained the approbation of these respondents did afterwards as executor of said Mary dec’d advertise and sell the said slave Delilah at public auction, and that the defendant David became the purchaser at the price of $340 for which he executed his note to complt James as executor aforesaid payable 12 months thereafter, the sale having taken place in February 1820.
The respondent David states that complt James told him a few days before the said sale that he intended to remove to Missouri, and would not be in the county of Washington when the purchase money of said slave became due, and of course, could not attend to the collection of it and that the purchaser would have to execute a note to each of the legatees or distributees of said Mary deceased, for their proportionable part. These respondents will procure and file a copy of the will of said Mary dec’d. They are under the impression that there is a residuary clause in said will to James Beatie the complt, William Beaty and these respondents, that will include said slave.
These respondents have been informed by Thomas Edmiston (the agent of complt James) who drew the will for said Mary, that she wished specifically to bequeath the said slave claiming her as her own property, to dispose of as she pleased, but the said Edmiston told her she had only a life estate in said slave and could not dispose of her by Will; he it is supposed by these respondents considered the said Mary as holding the said slave under the general law of Dower, without attending to the sale and agreement aforesaid and that the said Mary having a provision made for her by her husband’s will, was not entitled to Dower. In a previous will which she had made, she devised the slave Delilah expressly. These respondents always considered and do now contend that the slave Delilah was the property of the said Mary, dec’d and that such was the opinion of complt James seems most evident from his whole conduct, with the exception of the single act of his having instituted this suit.
The respondent John would state, that there was no money owing to his testator at the time of his death that has come to his knowledge, due by Bond, note, Book account or in any other way. The debts due from the estate which have been presented and paid by this respondent amounts to about $93.34 – Armstrong Beaty (who under an agreement between himself and the respondent, David made upon dividing the property given them by the will of said David, dec’d, was to pay his own & said David’s proportion of the debts) paid this respondent John $20 towards paying the debts, and the complt James as executor of his mother, paid this respondent $13.25 being intended as one seventh of the amount paid for debts by this respt but refused to pay anything himself – The respondent John has paid William Beaty $66.20 he also paid John Beaty including the expences of his burial $107.10 he also paid Armstrong Beaty $63 – which together with the price of the slave Anthony made $123 his share of the undevised slaves, a receipt for which is herewith exhibited. The respondent John also paid the said Mary dec’d $3 – making up her equal proportion, which payments together with the sum paid for debts and his share of the slaves amounts to the sum of $455.64. This respondent is willing to consider the defendant David’s note for $28 as paid which with the sums received from James & Armstrong Beaty and the price of the slave Bob amounts to $415.25 leaving a balance due this respondent after deducting his one seventh of the debts, of more than $23 which will at least settle the balance due William Beaty and the heirs of John.
These respondents John & Mary state that they received nothing worth naming from the said David Beaty, more than is given them in his will except the boy James, which was intended as they understood to make up for the deficiency of other personal property, given to the rest of the children, and they are convinced that complt James received by way of advancement more personal property from his father than the value of the slave James – The said David the elder in addition to the personal property gave each of his sons with the exception of John, a good plantation, and these respondents cannot but think it ungenerous in their brothers, even if they had it in their power, to make more unequal the portions of the son and daughter, than even their father had deemed proper. The respondent David does not think the child Eliza worth more than a mere trifle when she was given to him, she being a weak delicate infant, the rearing of whom seemed doubtful and the trouble equal to her value. He thinks that the property which he received by way of advancement not given by the will, was not of as much value as that received in the same way by complt James – These respondents do not believe they would loose much if anything by bringing their property into Hotch pot; but they are advised that a court of equity cannot compel these respondents to adopt that course and justice as they conceive having been done by the agreement and division aforesaid, and the complts long acquisence under it, having concluded them from now setting up any claims in opposition thereto, they insist upon a strict observance thereof and that the money due by the deft David may be divided according to the will of the said Mary, or as the law shall direct.
Deft David says he has paid the said complt James $99.87 on account of said $340 note – About the first of October 1820 complt James removed with his family to the state of Missouri, a short time previous to which this respondent and complt James had a settlement, in which he understood every thing relative to the estate of the said David Dec’d was settled, except the proportion claimed by this respt of him, for the debts which he had paid. They also settled all their affairs, with regard to the estate of the said Mary dec’d except as it respected the slave Delilah – and they mutually agreed to claim nothing for their trouble in settling their respective estates. The said James had left the county before these respondents knew of the institution of this suit – and the complt Elizabeth who is made to sue for her infant son says she knew nothing of the bringing of the suit, so that these respondents are at some loss to conjecture what secret hand propels the ball of litigation which it seemed to be the anxious wish of all parties to avoid. These respondents except to the ______ of this court, the remedy of complt James upon the note of the deft David, was complete at Law, if he could have had patience enough to have waited until the same was due. These respondents pray to be hence dismissed with their reasonable costs so unjustly expended.
Washington County to wit,
This day John Clark, Mary Clark and David Beaty, personally appeared before me
Lewis Smith a justice of the Peace for the County aforesaid and respectively made oath, that the statements made in the foregoing answer as of their own knowledge are true and those made upon the information of others, they believe to be true; Given under my hand this 25th day of January 1821
Lewis Smith J.P.