Duncan research files of
Harrison Co. KY Circuit (Chancery) Court Judgments (index on FHL film 234,324; other suits not copied)
Bundle 144; Folio 4150; Collier and wife Duncan; March 1, 1826. (FHL film 234,368, and from Dorothy Kincaid 11/1987)
To the Judge of Harrison Circuit Court in Chancery; complainant Claiborne Collier and wife Matilda late Matilda Duncan; that about the year (blank) Joseph Duncan the father of Matilda having made his will and departed this life leaving the following persons his legatees ... reference to said last will, a copy of which attached hereto, considered part of this bill, viz, Nancy, Wilfred, Catherine, William and Lydia Duncan infant heirs of James Duncan decd, Washington Duncan, Lydia Mizner, Samuel Harris and wife Nancy late Duncan, John Parker and wife Charlotty late Duncan, Danl. Whitley and wife Susana late Duncan, and Archibald Duncan. That said testator after making several specific devises ..., the residue of his estate should be equally divided among all of his children then living, and your orator alleges that such of his children as were then living were Washington Duncan, Lydia Miznor, Nancy Harris, Charlotty Parker, Susana Whitley, Archd. Duncan and your oratrix Matilda Collier, seven in number. That said Archd. Duncan, Washington Duncan and orator Claiborne Collier were appointed executors; that Washington Duncan and your orator have neither of them acted as such and that the whole of the duties of exec. have been done and performed by Archibald Duncan. ... the debts were very inconsiderable, amounting to a very few dollars; that the amount of personal property sold by exor. as per inventory and sale bill amounted to (blank) ... That the executor has refused to make distribution ... Orator has tendered him bond and sufficient security to refund in case more debts; Orator asks that the heirs of James Duncan decd, Washington Duncan, Lydia Miznor, Saml. Harris and wife Nancy, John Parker and wife Charlotty and Danl. Whitley and wife Susanna, heirs of Joseph Duncan, be made parties to this suit and their answers be filed in the form of interrogatories; and that Deft. Archibald Duncan the exor. be made to answer upon oath and set forth what the amount of money which has been disbursed legally in payment of debts and what amounts remain in his hands to be distributed under the will.
Bill filed March 1 1826, returnable March term 1826, March 11, continued to ... (by year) March 1838.
Summons, 19 April 1826, sheriff of Harrison Co. to summon Archibald Duncan, Washington Duncan, Samuel Harris and wife Nancy late Duncan, and Nancy Duncan, Wilfred Duncan, Catharine Duncan, William Duncan, and Lydia Duncan, infant heirs of James Duncan, decd, to appear in Harrison Co. court.
Return, June term 1826: Executed on Archibald Duncan, Catharine Duncan, William Duncan and Lydia Duncan. Washington Duncan, Samuel Harris and wife Nancy, and Wilford Duncan not inhabitants of my bailiwick.
Summons, 22 Feb. 1833, sheriff of Harrison Co. to summon Daniel Whitley and wife Susanna. Return dated 27 Feb. 1833.
Bond (no day or month) 1825, of Claiborne Collier and W. Duncan, to Archibald Duncan, acting executor, for $250; that Claiborne Collier claims an interest in the personal estate of Jos. Duncan decd. in right of his wife Matilda who is one of the children and legatees of Joseph Duncan, and Archibald Duncan being the acting exec., ... that if any debts come against the estate, Collier will repay his proportion thereof. ... /s/ Claiborne Collier, Washington Duncan.
Answer of Archibald Duncan; that he is the executor; he has been very reluctant to secure (dispose?) of land; that the will said: "I have heretofore made a deed of gift of the girl Sally to my son-in-law Claiborne Collier which is recorded in the Nicholas Co. Court which donation I hereby confirm ... as his interest and full portion of my estate" although in the last devise of said will the testator directs a distribution of the remainder among his living children, this respondent has been advised that it must be understood with the exception of the express provision of said will in relation to said Collier ... is not entitled to any portion of remainder ... Respondent denies that any offer of a bond was ever made ... Answer filed March 1827.
Settlement of Archibald Duncan of estate of Joseph Duncan decd, Feb. 1827. Amounts paid out $284.65-1/2.
Summons, 1 March 1826, sheriff of Harrison Co. to summon Archibald Duncan, Washington Duncan, Samuel Harris and wife Nancy Harris late Duncan, and Nancy, Wilfred, Catharine, William and Lydia Duncan infant heirs of James Duncan.
Summons, 1 March 1826, sheriff of Bracken Co. to summon Daniel Whitley and wife Susanna late Susanna Duncan.
Summons, 1 March 1826, sheriff of Franklin Co., to summon John Parker and wife Charlotte late Charlotte Duncan and Lydia Misener late Lydia Duncan.
Summons, 22 Feb. 1833, sheriff of Harrison Co. to summon Wilfred Duncan.
Copy of will 30 March 1818, Joseph Duncan, now seventy six years of age but of sound mine, slaves be set free (now consist of Nancy and her children Sally Lewis & George Preston Lavina and her children Rachael and Charles Boneen and my faithful and trusty man Garrard); heretofore made a deed of gift of the girl Sally to my son in law Claiboure Collier now recorded in Nicholas County Court which is confirmed; (more on slave Garrard being freed); the sum of $1200 be divided into six portions, one portion to children and heirs of my son James Duncan decd., one portion to my son Washington Duncan, one portion to my daughter Lydia Mozner, one portion to my daughter Nancy Harriss, one portion to my daughter Charlotte Parker, and one portion to my daughter Susanna Whitely; in 1810 had inconsiderately and without being in a proper state of mind had executed to son James Duncan a title bond for land whereon I now reside of 162 acres, for a consideration of 50 pounds when in fact I received no consideration whatever and have ever thought myself imposed upon by it; my will is that my son Archibald Duncan shall inherit said land; bequeath to granddaughter Lydia Duncan a feather bed, .... Son Archibald Duncan and Washington Duncan and my son in law Claibourne Collier executors ... to make an equal distribution among my living children after all debts .... Wit. Taylor King, James Wilson, William Watson. Recorded Oct. 1822 on oath of Joseph Taylor and William Watson, two of witnesses.
Harrison Co. KY Circuit (Chancery) Court Judgments (index on FHL film 234,324; other suits not copied)
Bundle 234; Folio 6470; Duncan heirs vs. Duncan; filed July 10, 1832. (FHL film 234,396)
Complaint; orators and oratrixes William Duncan, Wilfred Duncan, Shelton Watts and wife Nancy late Duncan, Blair Ritzell and wife Catherine late Duncan, and Lydia Duncan, heirs and legal representatives of James Duncan decd; that on 25 April 1818 their ancestor Jas. Duncan purchased of his father Joseph Duncan 162a of land which sd. Joseph at that time vested title to be conveyed to said James Duncan at the decease of said Joseph Duncan his father, for 50 lbs then paid by said James Duncan to Joseph Duncan and acknowledged by said Joseph to have been received by him, ref. to title bond of sd. Jos. Duncan to James Duncan attached; that about the year (blank) Joseph Duncan departed this life, with a will which among other things he devised to his son Archibald Duncan the afsd. tract of land which he had previously sold to James Duncan, and his will made no provision for indemnifying sd. James Duncan for the money paid him which his will deprived him. After the death of Joseph, Archibald Duncan entered upon and took possession of the land and has ever since held and claimed as his own under the will even though he knew of the previous purchase and equitable title of James Duncan, said Archibald being a subscribing witness to the bond. Some time after (sic) the death of Jos. Duncan, their ancestor James Duncan who departed this life intestate leaving the orators all infants and his only heirs, and that Archd. Duncan took admin. of the estate, but since orators have arrived at age, Archd. has failed either to convey them the land according to the bond or to refund them the purchase money with interest which their ancestor paid, out of the estate of Joseph Duncan, which was ample for that purpose.
William Asbery, taken at house of Jaret Duncan, a free man of color in Kenton town on 31 Aug. 1835. Questions by complainant: did James Duncan own the farm that Archible Duncan now lives on? He settled that farm and lived on it and erected a tanyard on said farm. Did Washington Duncan ever own the farm? I heard Joseph Duncan decd. say he intended the farm that Archible Duncan now lives on for James Duncan after the farm that ??? (dark streak) now lives on for Washington Duncan. Did you not ever hear Grandfather Joseph Duncan say anything concerning the will? I did not as I recollect. Questions by Deft: Who occupied the farm where Archd. Duncan now lives at the death of Joseph Duncan decd? A part of the farm was rented for the benefit of James Duncans heirs and a part was occupied by Joseph Duncan himself. How much was rented for the benefit of James Duncan's heirs? The tanyard was, and I understand the field but as to the field, I no?id?.
Levi Walton: questions by complainant: Did you not see in Eagle paper an advertisement by Archable Duncan to rent the farm that Joseph Duncan dyed on? I did see an advertisement in the Eagle paper to rent a tanyard on the farm with Archable Duncan's name signt, that at the time I saw the advertisement, Joseph Duncan was yet aliving.
Daniel (X) Whitley: questions by complainant: Did not James Duncan decd have possession of the farm that Joseph Duncan decd died on or a part of it and did he not gift and hold possession proceebly?? He did of the field called the Livingston field and the tanyard. Did not you hold a lease from James Duncan on a part of sd farm? There was no writen lease between us, only a visble? contract for silver? and he James Duncan said I might live on it my lifetime. Did you not pay Archable Duncan rent for the Livingston field as the administrator of James Duncan decd? I paid him one third of the wheat but paid him none of the oats. Old Joseph Duncan would not sufer me to do so and told me I was a dsed? foll (MAD: fool) for paying what I did pay. Did Archable Duncan offer you a horse for the emprovement you had made or to leave the premises? There was a horse offered to me by Archable Duncan to leave the place but I did not receive it. Where did you live when grandfather Joseph Duncan died? I lived on Barett's place on west creek. Who moved you from the farm you rented or leased from James Duncan to the Barett farm, or who caused you to leave said farm? I was advised by Joseph Duncan to leave the place, stating that his life was uncertain and that he thought I would be put to trouble upon his death. That he never heard Joseph Duncan Senr. say anything about his will.
John L. Dailey: Somewhen about 1802 James Duncan decd. settled on the place where Archd. Duncan now resides & continued to occupy for some years, during which time the place was known by the name of James Duncan's place, after Archd. Duncan came to this neighborhood and some arrangement was made, Archd. Duncan took possession of the place settled by James Duncan & James removed to the tanyard place now occupied by young Washington Duncan but what the arrangement was I do not know. James made the first settlement at the tanyard place and made improvements there.
David Clark: Question by complt.: Did you ever hear Joseph Duncan say anything respecting the contract between him James and Washington Duncan concerning the swap of lands? I heard the old gentleman say the boys had swaped places and that it made no diferance to him that he would as soon James would have the home place as for Washing (sic) to have it. Did you ever hear Joseph Duncan say that was for the accomodation of Archable and Washington Duncan that the swap was made? I did. Did you or not hear Joseph Duncan in his lifetime say that the (will) that was said to be his was not his will but that it was Archable Duncan's will? I did at sundry times hear Joseph Duncan say that it was not his will but that it was Archable Duncan's will and that he the sd. Archable sat by Joseph Taylor when he was a..try the will and instructed him how to wright it (two lines written above, cannot read). Did you hear Joseph Duncan say he intended to alter that will? I did. Did you ever hear the old man Joseph Duncan say how James Duncan came in possession of the place at the tan yard & whether it did not belong to James Duncan at Joseph Duncan's death? I heard the old man say James and Washington had swapped places, that James had a part in possession? and was to have the balance at his death. Question by deft: Where did you hear the old man speak of the will? Some time after it was wrote but can't say how long. Did you ever see the will? No except when it was brought in court. How do you know the will you saw in court was the one the old man said was not his will? I do not know except I understood that it was the same will written by Joseph Taylor. Who kept possession of the will after it was written? I do not know but it is he? stated and admitted that it was kept in the possession of Joseph Duncan Senr.
Mason Duncan: Question by complt.: Did ever Archable Duncan offer you and William E?. Harany? guardians of the infant heirs of James Duncan decd. an emplamise? for the land that is now in dispute? He did offer us $400 and that we went into arrangements and after recanted. Did you hear Joseph Duncan say anything about said land belonging to James Duncans heirs and at what time did you hear the conversation? The Monday evening? before he died he obsid? that he would not have no more post and railing put up for he would not live to enjoy it, and he did not think it was necessary in reply to which I observed that I supposed his children would enjoy it as I had understood he had made his will and left the place to Archd. Duncan, he observed then that Archd. was his children (two words) was sizing it that he had given his bond for the land to James Duncan and his children would enjoy it. I then stated I had understood he had willed the land to Archd. and he appeared surprized & stated that he had not! no never! and I myself felt surprized and asked no more about it. Did you then believe him to be of sound mind. Yes, he was in good health clensp..? & of sound mind. Quest. by Deft: what did James Duncan give for the land. I do not know.
Saturday, 5 Sept. 1835, met pursuant to adjournment.
Wiseman Hatch: Question by complt: Do you know how Archable Duncan took possession of the house when his father lay a corpse in the house? I could? ahed? there and found said Archable Duncan there. Quest. by Deft: To whom did the land of which you have been speaking belong? I do not know but I took the bed? out of Archd. Duncan's home.
Cowouthey (X) McGraw ... did you hear Joseph say how James Duncan came in possession of said land? I did, twenty four years ago, in conversation with Joseph Duncan at a meeting he invited me home with him and in passing the house that Washington Duncan now lives in, I was agoing to stop but said corner on I do not live here and we went further on unto the old man's house. After we entered I asked him how much land he owned then; he said none, that he had give all his land unto his two sons Washington and James and said this not the place I gave my son James, yonder is the place I gave him, seting across the orchard? and said that Washington and James had swapped living. Did Archible Duncan show you the line between him and James Duncan? He did. I went to make rails for him and he showed me the line and told me not to cross it for it would make repress? but did not know what line it was, wheather it was James or the old man's line. Did you understand it to be the line between Archable Duncan and the place that James Duncan lived on? I did. Who told you that the line of which you have been speaking was the line between the place where James Duncan lived and Archibald Duncan? I have been shown the line by different people lived that time & at that time a sign? came to make enquiry about the line. I know however that the line thru James? is a worked? line and now? between he place then occupied by James Duncan and Archd. Duncan.
Lydia Clark: Did you know that Archable Duncan took possession of the house with a bead? and other property before his father was carried out when a corpse? He did with a bead and beading and a couple of chears. Did you hear Archable Duncan say what was his intention in so doing? I heard him say Joseph Taylor told him to move such things in the house to hold possession. Did you hear any conversation between Archable Duncan & Joseph Duncan when Joseph Duncan will was a making and where was you when you heard the conversation? I heard Joseph Taylor say what men?? and Archible Duncan said there was Lydia said mare & ? colt and saddle a cow and calf and wheat and loom and utensils. I was astanding outside the house aparett Grandfather Bead? when this conversation took place. Did you hear Joseph Duncan say anything pertaining? his will and what was it? I heard him say on Saturday night after he took sick that it was not his will but that Archable had made it and that he would send for William P. ??? and ... one mare that he ... (bottom lines too dark) .. also $200 that Jarrard has to pay which had no right to will for he was a free man, also the farm he had no right will for he had given a land to James Duncan for so long and that James was now decd and it would fall to his heirs and that no law would cut them out. Did you hear any conversation Joseph Duncan and Clabourn Colier? I did hear conversation between them. I heard grandfather tell him that he never made the will, that Archable had made it, he allways intended sal? for him and that he would given him $400 and take him back for he intended him to be free. How often did you see Archable Duncan go in and out of the house when the will was awriting? I do not recollect the precise number of times but I recollect of twice or three times in particklar. What the conversation between grandfather and William Henary? when he made application to rent the tanyard? Old Grandfather sent he could not rent it for it belonged to James Duncans heirs and that he would have to go to Archable Duncan and at time Archable Duncan was in Bourboun and told him to come back when Archable came home and he came back and rented the tanyard.
Archd. Duncan admitted that his father and when he was drinking stated that the will he had made was not his will but Archd. Duncan's will and that he answered his father and asked him why he did not burn it; the foregoing is admitted by Archd. Duncan to have been stated by him.
John Reitzel: Was you in the Eagle office at the time Archd. Duncan advertised that property for rent ... & in what way was it done? I have a distinct recollection that he advertised the property, namely the tanyard, and think he advertised it either as executor or administrator but don't know which. I then had charge of the bank and the advertising was charged to Archd. Duncan. Objected to by Deft.
Richard T. James, of lawful age: Where were you when the father of the deft. Archd. Duncan made his will, who wrote the will, and what hand had the deft. Archd. Duncan in making the will; tell all you know about it. I went with Joseph Taylor when he was sent for to write the will, and staid at old Wm. (Mr.?) Duncan's until it was nearly done and did not get home until morning?. Archd. Duncan was never in the house during the time I staid, but remained with and in the yard, nor did any other person go in the house to my knowledge after the door was shut except Lydia Clark then Whitley who went in two or three times during the time I said? when they wanted a paper as I understood that old William Duncan had and lent land for it and William Duncan came and brought the paper. Taylor maintained? and tentaned?. I think we got thru about twelve or one oclock. Taylor came from town & Archd. Duncan met Taylor at Claysville & made? went together & got there before dining & was to have returned with him Taylor but got tired of writing and left them a little before seven? down. Did you see Wm. Taylor write the will? No. Did you ever hear Joseph Duncan say it was his will? No. I think sd. Taylor lay ... (dark line) the will but I was not in the house. Taylor told me it was his business & how land was fixed and that there were? to a purpose? ... the way? ... Were you present at a settlement between Sutton Math? & Archd. Duncan & what was your motive for reading (nading?) over the receipt so often? I was present it was a final settlement, Archd. Duncan was admr. for Jas. & Jos. Duncan both & I had the Ru?. over several times that he might understand the note & that it was a note? against his will? & both estates. Were you induced to read the receipt over in consequence of conversation you had previously had with Archd. Duncan as regards the place on which James Duncan lived? No, I had had no particular conversation with Archd. Duncan that I remember, but knowing what? set up a claim against Archd. Duncan, I read the recd. that he might understand what was its contents. Did Archd. Duncan ever borrow your gun to keep watts? out of possession? No, he never borrowed my gun for any purpose.
Mason Duncan, of lawful age: Did not Archable Duncan as admst. of James Duncan decd. pay you rent as the guardian of the infant heirs of sd. James Duncan? He did, he paid me wheat rent for the field call the Livingston field that James Duncan rented to Daniel Whitley the fall before he died to sew in wheat. At what time did he pay you that rent? I do not recollect the precise time, but I think it was about the year of 1813 of 14, as well as I recollect.
Will of Joseph Duncan (not copied here; same wording as earlier)
Bond, Joseph Duncan to James Duncan (mostly too faint to read) Joseph Duncan his father 50 pounds for the above ... they receipt whereof is hereby acknowledged ... 23 April 18.. Wit. Archibald Duncan, Gabriel Miss?
Manumission of Jarret Duncan, not copied.
Answer of Archibald Duncan 25 Dec. 1833; that in his original answer he by mistake stated that the bond executed by Joseph Duncan to James Duncan was executed on 23 April 1818 when in fact it was executed on the 23rd of April 1810 as the date of the bond will show. He refers to a copy of the manumission by which Joseph Duncan set the negro man Gerrard at liberty. He says he has paid over to Wilford Duncan the full amount of his legacy under the will of Joseph Duncan decd but he refused to give the deft. a receipt; that he paid to Shelton Watts the full amount of the legacy to Nancy Watts and took Shelton's receipt dated 17 March 1828; that he paid to William Duncan the full amount of the legacy and took receipt 5 March 1832; that he paid to Mason Duncan guardian of Lydia Duncan the full amount of her legacy and took his receipt 5 March 1832, Lydia being an infant under age 21; that Lydia afterwards married James Wilson and departed this life without issue, and that Lydia was still an infant under 21 when she died, whereby her brothers and sister became her heirs. That Mason Duncan paid legacy to James Wilson ... (2 lines too dark) ... as well as the receipt given by Mason Duncan for Catherine Reitzell's portion of the estate.
Cross bill of Archibald Duncan not copied
Answer of Archibald Duncan August 1832; that James Duncan did in his lifetime purchase from Joseph Duncan decd. the land mentioned in the bill; that on 23 April 1818 Joseph Duncan executed a bond in the penalty of $400 to convey the land to James Duncan, the deed to be a deed of relinquishment at the decease of Joseph Duncan; he most positively denies that James Duncan ever paid to Joseph the sum of 50 pounds or any other sums; that after the execution of the bond on the 28th of March 1818, Joseph Duncan duly made his will by which he devised the land to this defendant, and that afterwards Joseph died. That James Duncan died before the making of the will of Joseph Duncan, and not afterwards as the Complts. have alleged. That by his will Joseph Duncan directed that his exor. should manumit his negro man Garrard upon his paying $200 ... That he paid to Wilford Duncan his share but he refused to give him a receipt; that he paid Wm. Duncan his portion and took a receipt 5 March 1832; that he paid Shelton Watts the husband of Nancy Watts his portion and took receipt dated 17 March 1828; that he paid Mason Duncan the guardian of Lydia Duncan her portion and took receipt 5 March 1832, Lydia being an infant under 21; that the bond for conveyance of the land was obtained by James Duncan from Joseph Duncan by hand? and without consideration and for that reason Joseph Duncan by his will left the land to this deft. as he had a right to do. That James Duncan for the purpose of carrying his fraudulent design into execution caused the bond to be written a long time before it was signed & presented it to Joseph Duncan when he was very much intoxicated and when he was not in a situation to do business. That James Duncan for the purpose of taking advantage of Joseph Duncan procured ardent spirits for him to drink and induced him to drink it until he became so much intoxicated that he was ("unfit to" crossed out) incapacitated to transact ordinary business and while he was in this situation James Duncan presented the bond to Joseph & prevailed upon him to execute it; therefore the bond is void. That he paid to Mason Duncan for Blair Reitzel his proportion of money and took Mason Duncan's receipt dated 5 March 1832, and he believes Mason Duncan paid the money to John Reitzel at the request of Blair Reitzel and John sent the money to Blair who resides in the State of IN. He does not believe that Blair Reitzel ever authorized his name or the name of his wife to be used as complainants in this suit, and their names have been used without their knowledge or consent. This answer is a cross-bill.
"Reports of cases at common law and in chancery decided by the Court of Appeals of the Commonwealth of Kentucky" Vol. 3-4; J.J. Marshall, 1851. October, 1830, pgs.443-448 (from Jim Dempsey 10/2003)
ARCHIBALD DUNCAN v. L. MIZNER, etc. - Chancery, unnumbered, KY Court of Appeals; 27 Ky. 443; 4 J.J. Marsh. 443; October 8, 1830, Decided
Error to the Franklin Circuit
Opinion of the Court, by Judge Buckner
JOSEPH DUNCAN died in 1822, in the county of Harrison, having first made his last will and testament, which was admitted to record in that county. Archibald Duncan, Washington Duncan and Claibourn Collier, were named as executors thereof, the first of whom alone, took upon himself the executorship.
He directs by his said will, that after his death, his slaves consisting of a man named Garrard, and two families with their children, should be manumitted; but his executors were first to receive the sum of $1200 from their services or hire, in the following proportions: From the hire or services of Garrard $200, from those of Nancy and her children $400, and from those of Lavina and her children $600; which sum of $1200, was to be divided into six equal parts, between his son, Washington Duncan, his daughters, Lydia Mizner, Nancy Harris, Charlotte Parker and Susannah Whitley, and the children of his son James Duncan, deceased.
Toward the close of the will, is the following clause: "As to the residue of my estate, not herein enumerated or devised, I give my executors full power over, to sell or distribute specifically, taking care to make an equal distribution among my living children, after all debts and demands against me are satisfied."
In January, 1826, Lydia Mizner, Washington Duncan, Samuel Harris, and Ann his wife, instituted their bill in chancery, against Archibald Duncan, the executor, John Parker, and Charlotte his wife, Daniel Whitley, and Susannah his wife, and the heirs of James Duncan, deceased.
They charge the executor with a want of fidelity in the management of the estate; and particularly, as it relates to the slaves; that he had paid the devisees no part of the money due to them, and was endeavoring to defraud them of both that and the slaves, from whose services or hire he had received nothing, and was so managing them, that they were rather a charge upon, than an advantage to the estate.
They pray for a decree against him, compelling him to pay to them and others entitled thereto, under the will, the specific legacies named therein, if the court should be of opinion, that under the will, the slaves were entitled to their freedom; if not, to decree a distribution of them or of such of them, as were in this state among those entitled to them, and that the executor should be answerable for some others which they allege he had permitted to go to the state of Ohio. They also pray, that if they were considered as entitled to the $1200, only charged on said slaves, the court would appoint a commissioner, to take possession of them, who should hire them out, according to the provisions of the will, until the sum charged on each should be raised; and that the executor be compelled also, to distribute the amount of the residuary fund, left after the payment of debts among them and the other devisees entitled thereto.
The persons named as defendants answered, and all except the executor, consented to the relief sought, and pray that they may have a decree for their portions.
He denied the charge of infidelity, insists that he had managed the estate of his testator vigilantly and with a desire to promote its interests. He says, that Garrard had been manumitted by his testator, by an instrument of writing, properly admitted to record, long before his death, which instrument is mentioned in his will, but is there declared to be defective; that for the $600 to be raised from Lavina and her children, he had taken the bond of one Spencer, with good sureties which he exhibited, and which was not then due, that Nancy and her children had been regularly hired in Harrison county, by persons of ability, to pay the amounts engaged to be paid, all of which had not been received.
Commissioners were appointed by the circuit court to make a settlement with said Archibald, who returned their report, by which it appears that each share of what was termed the residuary fund, amounted after the payment of debts, and making an allowance to the executor for his services, to the sum of $100.71 cents. They, therefore, allowed one share to Washington Duncan, one to Lydia Mizner, one to Nancy Harris and her husband, one to Charlotte Parker and her husband, one to Susannah Whitley and her husband, and one to the executor Archibald, subject to deductions or credits for money received by some of them from said executor on that account.
The $1,200 directed to be raised from the hire of the slaves they allowed in equal portions to the persons named in the will as entitled thereto.
Upon a final hearing, the circuit court confirmed the report and decreed, that the executor should pay to Lydia Mizner $300.71 cents, to Parker and wife the same; to Washington Duncan the sum of $235.12-1/2 cents; to Harris and wife $300.71 cents; and that executions issue therefor, to be levied on the assets in his hands as executor, and that the complainants recover against him their costs; that he should pay out of said estate to the children and heirs of James Duncan, deceased, the sum of $200, and to Whitley and wife $217.04 cents, upon their giving bond to refund their proportions of any debts that might come against the estate of said Joseph Duncan deceased, and that no execution should issue for said sums decreed to Whitley and wife and the heirs of James Duncan, deceased, until the bonds required be given, and approved by the court.
To reverse this decree, Archibald Duncan prosecutes this writ of error with supersedeas; assigning such errors as present the points necessary to be considered. We shall notice such only as are deemed necessary to the decision of the case.
It was evidently erroneous to permit an execution to issue in favor of any of the parties named in the record, until they should execute bonds with surety to refund their rateable proportions, of any debts or demands which might afterwards appear against the estate of the testator, and the costs attending the recovery of such debts. See the case of Prewitt's executor v. Prewitt's heirs, 4 Bibb, 266, and of Middleton v. Carrol, decided during the last term.
A bond of that description is copied into the record, which was prepared for L. Mizner, Harris and Washington Duncan, and for Lewis Saunders and Thomas Triplett, as their sureties; but it has the signature of Triplett only.
Whether it was marked as filed, does not appear from the record; nor is there any evidence that it properly constitutes a part of it. Such a bond ought to be filed by leave of, and approved by the court, previous to the issuing of executions; otherwise a party might slip into the record a spurious bond, or paper purporting to be a bond; or get some person to join him as surety, who was entirely insufficient; and thereby defeat the purposes of justice.
The decree requires Whitley and wife, and the heirs of James Duncan, to enter into bond, with surety, &c. but contains no such requisition, as to Parker and wife.
The allegations of the bill, with the proof in the cause, were obviously insufficient to authorize a decree as to the $1,200, for the hire of the slaves. It is expressly alleged in the bill, that neither the sum aforesaid, nor any part of it, had been received.
But had it been otherwise, the decree should have been entered against him in his individual capacity. The property of his testator ought not to be sold in satisfaction of a decree for money, for which, if received by him, he was individually responsible. Yet, as executor, it is his duty to complain of the injustice of the decree, and to procure it to be rectified.
We will not say, that the proper parties were not before the court; but the bill was too indefinite and unsatisfactory, and leaves it at least doubtful, whether they were.
That part of the testator's estate, which was not specially devised, was by the directions of the will to be equally divided among his living children. It does not appear from the bill, or any part of the record, how many living children the testator had, either at the date of the will, or at any subsequent period.
If he had any other, except those named in the bill, who had not been excluded by the will from a participation in the division under this residuary clause, he ought certainly to have been made a party; for all persons whose interests are to be affected by a decree, should be brought before the court pronouncing it, that they may have an opportunity of being heard.
In the will, Collier, who was named as executor, is styled by the testator, "his son-in-law," but whether his wife was living is not shown. Besides, he devises to said Collier a female slave, which he observes he had previously given to him, and which gift he then confirmed, as his entire and full portion of his estate.
But whether the residuary clause, which succeeds this, is at war with it, so that they cannot stand together, and that, therefore, the latter must prevail, according to the rule on that subject, it is unnecessary here to determine, as the question is not properly presented.
It is true the bill alleges that the complainants and Archibald Duncan, John Parker and Sally his wife, with Whitley and wife, are lawfully entitled to a particular sum, as residuary legatees. But whether they be so or not, is a matter of law, depending upon facts which are not stated. When they are stated, the legal conclusion drawn may prove to be entirely erroneous.
The names of all the children of the testator who were living at his death should have been stated, thereby to enable the court to determine who were properly embraced as legatees, by the residuary clause.
The decree, entered as it was, at the instance of the devisees, should have been so ordered as to guard against a frustration of the testator's kind and benevolent provisions in favor of his slaves.
The defendants in error, or such of them as were complainants in the circuit court, insist in their bill, (in violation of the well established doctrine that a person shall not be permitted to claim under a will, whilst he at the same time resists its full effect), that notwithstanding those provisions, the slaves should not be manumitted. Now, from the decree as it stands, they would be the subjects of levy under executions issued on it, and might be continued slaves for life, if sold. Such was not the intention of the testator; and the court ought not to enter a decree which might and probably would lead to such unjust and iniquitous consequences. The appraisement and list of sales of the property of the testator's estate show that not one half of the amount of the decree can be raised from the proceeds of it, in any other way, than by a sale of them. They were not devised to any one, and as such were assets in the hands of the executor, for the payment of debts, if necessary.
The decree must be reversed and the cause remanded for further proceedings to be had, not inconsistent with this opinion.
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