Alford v. Endicott

2 Rec. Co. Ct. 726

• Court: New York County Court, Suffolk County
• Decided: October 31, 1676
• Status: Published

Opinion

Benjamin Alford Attourny to John Sweeting Junior plt agt John Endicott & John Scotto Execrs in trust to the Estate of Andrew Sheppard decd Defts in an action of the case for that the sd Execrs have refused or neglegted to give unto the sd Alford a true & just acc° of all the produce profits Earnings or Effects of one quarter part [ 401 ] of the Barque Thomas and Mary whereof the sd Shepard was sometime mr from the time the sd Alford last made up an accoumpt with the sd Sheppard in behalfe of the sd Sweeting to this day, and also for not surrendring the quartr part of sd Barque & all other Estate or Effects that was in the hands of the sa Sheppard belonging to the said Sweeting; whereby the Estate of the sd Sweeting is damnified about One hundred pounds mony unto him the sd Alford & all other due damages according to attachmt datd October. 26. 1676. . . . The Jury . . . found for the plaintife that the sd Execrs shall give a true accot of the one quarter part of the vessell Sued for called the Thomas & Mary with all the profits & loss made with sd Vessell since the accos last made up, to bee done within twenty dayes next following under the penalty of One hundred pounds mony & costs of Court. The Defendts appealed from this judgemt unto the next Court of Assistants & themselves principall in one hundred pounds & Robert Sanford & John Morse Sureties in Fifty pounds apeice acknowledged themselves respectiuely bound ... on condition the sd John Endicott & John Scotto should prosecute theire appeale . . .

[ This case arose over the estate of Andrew Shepard of Boston, who died in Boston after a voyage to dispose of logwood, some particulars of which are in the following documents:

S. F. 1718.12

Mr Sweeting Boston in New England June 9° day 1675

Sr These are to lett you understand, our Safe arrivall in Boston, the Sixth of this Jnstant, but with great danger,: for J mett with a great Spaniard, one that J Judge Some Thirty Six Guns at least, whom fired Some Sixteene or Eighteene gunns at vs, and at last forced us to Strike where we lay for the Space of two glasses, alongst his Side within pistoll Shott, but through gods mercy made our Escape, the Spaniard being fearfull to Send his boate on board, J Suppose for feare wee had bene a man of warr, for we did not Strike till night So that he Could not discerne what we were J intend if please God to goe to the windward Jslands and if J Can put of the Vessels effects to touch at Corre Soe, and See what may be done there, J haue Spoke with mr Alford, and by the next oppertunity you Shall heare of the affaires, and what will be done, the Negro and the Cloathes my wife Receiued, with the money, mr Hawford is left in the bay, and would desire you to Send him downe Some powder and Shott, to the vallue of three pounds and provisions, if that you not Sent any of that J writt for, So no more at present J Rest Your friend and Servant to Command

Andrew Sheppard

Vera Copia attestr Jsa Addington Cler

S. F. 1718.15

Port Royall ye 11th of June 1675

Mr Benja Alford

Sr Yors 23th March lyes before mee, & the fish of my fathr all Sould, which is well, though by the porke was Losse, being the worst J Ever Saw, marked by the packer in my life, but Conclude was noe fault of yors, The account of our Jrish Cargo Should haue bene glad to haue Seene, but at present am just bound for London, & no new England vessell in port, which makes me leaue these letters behinde mee, to be Sent you by the first, Therefore if Said accounts are not Sent before receipt hereof, desire the Same to London, but the produce hether in provisions, Consigned for my account, or father, to Capt Sam11 Bache, which pray let be in good porke, Cod fish, bread, pease flower, butter and traine Oile, which for present Sell well Jn my last J advised you of a bill of Exchange, on mr Pincheon for £5: but then forgott to incloase it you, at present you haue it which request you to gett accepted & paid, & in default protested which keepe by you, till the arrivall of mr Paine or Tucker, when Shall Send you their bond for a greater vallue, besides what will accrue on the bill of Exchange, by non payment. J have wrote mr Pincheon about it, & assure you had J not Stoode Sd Paines friend, must here haue Sold his Vessell, & Consequently ruined his voyage, J hope long before this is arrived the barque Tho: & Mary, ma' Andrew Sheppard wth Logwood, wherein am Concerned a Quarter part of Vessel and victuals, for which you’l receiue about three, or three tuns. ½ for my Share, & £8:15 my ¼ of 351 Said Sheppard receiued of David Edwards, for Loading his vessell in the Bay for all which please to give my accot Currant & also if the vessell be Sold, for my ¼. part of her produce, and if fitted out againe disburse for me, what my part Comes to, but if they Sell and you finde them desirous to buy another, Concerne mee not therein, which J would not haue you let them know, till you haue all my part of money & wood in, nor then neither if you Can avoid it, you may tell them, that J am gone for London and haue left it to you, and that you beleiue it will not bee for my Jntrest, at So remote a distance which J leaue to you to mannage, better knowing how to putt them offe then my Selfe, but however it fall out will not be Concerned, because Cannot be here to mannage it, Else would, knowing it proffitable The accots of all desire may be Sent me for London directed to me as junior, The nett proceeds of what my accots amounts to, Send as before, and with what Speede you Cann from London, where God Sending mee in Safety shall be againe God willing, troubling you with my lines and other matters, Jntrim haue only to adde my due respects Committing you to divine providence J Remaine

Yor assured friend & Servant at Command

John Sweeting

Sr

When next you See Madam Tailer, please to know of her whether or no Shes disirous, J should buy for her those things She desired of me, at parting, and if Shes of the Same minde Let me know it, by the first to London, & her Commands shall be Carefully observed.

Jdem J S

Vera Copia attestr, Jsa Addington Cler.

S. F. 1718.13

March 10th At Tre[i]ce in the Bay of Campeachy 1674 The barque Thomas and Mary Dr in money to disburstmts as followeth li s d

To Nailes and boards in the bay..........0:15:00

To Tallow....................1:10:00

To the Carpenter.................0:10:00

To Boate hire to Loade the vessell wth wood her third part 2:06:08

Boston this To Custom of Eight Tuns of Logwood .......0:10:00

June 14th To Drinek to the Carpenters............0:01:00

25 To Nailes and Spikes ...............4:02:00

July. 12° To Drinek to the Carpenters............0:02:00

To Sheet Lead..................0:00:06

15 To Nailes and Spikes..............2: — :—

16 To Nailes ....................0:02:00

To mr Greenough for Sheathing & other necessarys . . . 28:17:06

To One barrel of Tarr ...............0:09:00

To Drinek at Seuerall times ............0:05:00

22. ToNayles....................0:05:00

24. To Cordage & Cappell...............17:05:00

To Jsaac Sheffell Carpenter ............0:14:00

To the Smith ..................0:13:10

To mr More Carpenter ..............1:09:00

To mr Fisher Carpenter..............1:11:06

To mr Thornton for nailes timber and planck .... 0:17:06

To Ballast: 9s. To Twine 2. 10d 0:11:10

To 2 Oares and Setting poles of mr Scarlett .....0:08:09

30. Tothemasonforworke,time&bricksabouttheCookroome 0:11:00

To Wages for my Selfe& boy :& the boyes dyet .... 6:03:04

To Pump nailes and Candles ............0:02:00

To mr Thornton for one board...........0:01:06

To Saile needles 2s To the Sawyer 23: To Blocks 12s . . . 0:16:00

To mr Scarlett for a Stick to make a mast and making . 1:08:00

To the Smith for hinges for the Cabbin doore, and plates for the pumpe and b[o]lts ............0:04:06

To Three barrels of Tarr .............1:14:00

October 20th To mr Hallaway for gra[v]ing the vessell.......1:05:00

75 To Scupper nailes & other nailes. 6. To Ballast 5s . . . 0:11:00

To Three halfe houre glasses............0:03:00

To Beefe and Salt to Salt it ............6:02:06

To the fitting 2. Compasses ............0:04:00

To One hand Saw and three brooms.........0:02:09

To Bunting for vaines & Crosse for the antient .... 0:06:08

Toa Joynor for worke done aboard & for a [b]iddi[ce]ll . 0:07:06

To firewood 8 6d To Candles 20[1]10s ........ 0:18:06

To one paire of maine Sheets & maller ....... 0:16:00

To Porke pease and bread.............8:10:06

To Two tun & halfe of water Caske & halfe a tun of beare 3:12:00

To Two boles & Two dishes & halfe a dozn of Spoones 0:03:06

99:10:04

99:10:04 Mr John Sweeting Dr Since March the

49:15:02 10th 74 To Andrew Sheppard as

24:17:07 followeth li s d

To my Care as master Six Weeks a loading mr David Edwards .....................1:05:00

To Disburstments Since the 10th of march 74. To 5 hundred of Logwood Reeeiued more then your propper part 3:00:00

For. ¼ part of fitting to Sea .............24:17:07

after accot made up for ¼ part of a Cann bought for the vessels use................... : — 05

29:03:—

per Contra Cr.

By the Quarter part of provisions laid in Jamaica, with the advance of 2 barrels Sold...........12:18:06

By your Quarter part of money earned in the Bay of mr Dauid Edwards ................8:15:00

By Two Tuns of Logwood deliuered according to yor order, to mr Benjamen Alford .............

By Three fraights two from Piscattaque and one from Capeann ...................1:00:05

By a Punn Sold..................0:17:06

23:11:05

For: Ballance due to Andrew Sheppard .......5:11:07

29:03:00

Vera Copia attestr Jsa Addington Cler

A copy of Andrew Shepard’s will is in S. F. 1718.9; it is sufficiently explained in this letter of his executors relating the circumstances of his death (S. F. 1657.4):

Boston in New England June 26° 1676

,Mr John Sheppard

Sr These Serue to informe you, that Soone after your brother Andrews arrivall, here he fell Sick and Lived not Longe, but in the time of his Sicknesse his wife also fell Sick, and before mr Sheppard dyed he did apprehend, little hopes of his wifes Life, whereupon he made his will, and Left us Joint Executors & gaue his Estate after Charges and debts were paid (in Case his wife did dye within one yeare & a day) to your Selfe, reserving only Two or three small Legacies Now his wife dyed within Two or three dayes after mr Sheppard, and we tooke Care for their honnorable interment, and yet endeauored to be as good husbands as we Could, we having Secured the barques Loading of wood, togeather with the Cloaths & houshold goods, wee haue also by the Desire of mr Sheppard & advice of merchants here Sould Three Quarter part[s] of the Barque, which part we understood by mr Sheppard that he did owne, we also understood that mr Hawford, owned one Quarter of her, So in faithfullnesse to him, (ther being no person here to assert his Jntrest) we haue Taken Caution from the parties that haue bought the ¾ to be accountable to mr Hawford or order, for that part of the Vessell and her proceeds. Now Sr we desire you with what Convenient Speede you may to Come to Boston and receiue the Estate left into your hands, in the meane time assure your Selfe, that we Shall use our vttmost Endeauors to Secure & promote your intrest and Serue you to the vttmost of our abillity, thus with our kinde Love & respect to your Selfe we Remaine

Your assured friends & Servants

John Endecott

John Scottow

Ownd in Court pr° August 1677 by the parties Subscribing

as attests Jsa Addington Cler

Copia vera attestr Jsa Addington Cler

Letters of administration from the Prerogative Court of Canterbury for Shepard’s English property are in S. F. 1718.7. An account of his funeral expenses and the inventory of his estate follow:

S. F. 1718.8

An Inventory of the goods & Estate of Andrew Sheppard of Boston decd prized by Nathanel Greenwood & William Greenough of sd Boston Shipwrights as followeth taken the. 1st day of June. 1676. @

li s d

Imprs his wearing apparrell...................16:15:—

his wives wearing apparrell...................5:01:00

two Bookes..........................:08:—

one remnant of Quinting ....................:04:—

one pair of andirons ......................:08:—

one pair bellows. 18d one ehafin dish. 12d one Spit 20d .......:04:02

one trammel ,18d one Jron pot and hookes 6a............:07:06

one Frying pan. 18d one brass Kettle. 35s.............1:16:06

six pewter platters small. 15s old pewter. 2s............:17:—

lattin ware. 4s. Earthen Juggs. 2s.................:06:—

woodden dishes and trenchers..................:02:—

one looking glass. 6s a glass case and glasses. 6s ..........:12:—

one grater. 3d one table and. 5. chaires. 15a............:15:03

4. Silver Spoones. 40s — 3. gold buckles. 25s — 1 silver thimble. 2s— 1. set of Silver buttons — -3a— 2. pair of buckles. 6s- — one gold ring with a Stone — 10s—■ ........................4:06:—

Child bed Linnen .......................1:00:00

5. Napkins .1. table cloth & 2 pillowbeers.............00:10:06

3. cotten and linnen Sheets — 1. fine holland Sheete one towel . . . . 2:10:—

one brush .12d one Cane. 5s................... 00:06:—

Sea Instruments........................ :15:—

2. fowling guns — 1 caduse box — 2 pair bullet moulds........3:00:—

1. looking glass ,18d 00:01:06

1. pallet bedsteed — 1. green Rugg & 2. blankets..........2:03:—

1. large bedsteed curtains vallents Featherbed and boulster and one green Rugg.........................6:00

3. Chests and one deske.....................1:15

2. matt chaires. 3s — 1. wicker basket. 3s..............0:06

1. bed pan. 9s — 1. fire Shovel and tongs. 3s ............ :12

li s d

1. halfe head bedsteed. 6s — caske & some meale. 8s......... :14:—

2. bush113 Corn......................... :06:—

2. old bb3 — 2. earthen pots & some soft Sope ........... :08:—

a. box and heaters 33 — Firewood. 3s ............... :06:—

a. Negro girle.........................15:00:—

¾. of the Barque Thomas and Mary with her tackle & appurtenances . 63:15:—

23tun 19° 2qr 271! of Logwood at. 7h per ton qt 668 sticks supposed all to bee sd Sheppards .....................167:18:06

A debt due to the Estate from mr Eliakim Hutchinson....... 50:00:00

Summa £349:08:11

Nathaniel Greenwood

William Greenough.

John Scottow and John Endicot Executers of the last will of Andrew Sheppard personally appeared before John Leverett Esqr Govr and Edward Tyng Esqr Assist. June. 14° 1676. and made Oath that this paper containes a just and true Jnventory of the Estate of the said Andrew Sheppard to the best of their knowledge and that when they know more they will discover it.

as attests Jsa Addington Cler.

. . . true Coppie . . . Jsa Addington Cler

S. F. 1718.10

The Estate of Andrew Sheppard is Dr to Iohn Scottow & John Endicot for Sundry Disburstmts viz li s d

To money pd John Endicot for so much Lent Andrew Sheppard before he dyed ...........................5: — :—

To money pd Ditto for Soe much Lent mrs Sheppard before she dyed . . 1:10:—

To Brandy Bread & wine &Beare for mrs Sheppard & her watchers . . —:06:—

To mony pd for a Pallat Beadstead................1:01:—

To mony pd for two Coffins posts & Rayles............2: — ■:—

To ringing the Bell and digging the graves ............ — :08:—

To mony for mr Tailer for wine................. — :15:—

To the washer woman .....................• — :01:—

To Sunday Disburstmts on relations & watchers and at apprizeing the goods ........................... — :06:04

To the Nurse.........................— :05:—

To Portorage & Expences at unloadeing the Barq[ue] ....... — :08:—

To mony pd mrs Sheppard’s Negro by her Ordrs.......... — -:06:—

To mony pd the Carter for removeing the goods.......... — :02:09

To a Porter................'.......... — :02:—

To Aireing the goods & other Charges ..............■ — :03:06

To mr Sheppards nurse..................... — :10:—

To Ieremiah Fitch for Gloves for the Funerall...........5: — :—

To Thomas Heath for Murning .................9:12: — •

To Thomas Bingly for Murning.................7:11:—

To Expences About Sale of the Yessell.............. — :08:07

To Weighing and Houseing the Loggwood.............2: — ■:—

To Expences at Sundry Times ..... .......... — :17:04

li s d

To ringing the Bell and Black Cloth............... — :03:—

To mr John Hayward for drawing the will Jnventory accots Examining ■ writeings &c ........................2: — :—

To mr Elisha Cooke for medicines as per Receipt .........2:16.:—

To mr Dudly for Custome of Loggwood........... . . . — :15:—

To mr Addington for writeing ................. —:05:06

To mony pd willm James for mony [L]ent mr Sheppard in ye bay . . . . 1:05:—

To Richd Smith for Severalls dd to mr Sheppard . . . ’...... — :15:10

To Jn° Cragg Phisitian for medicines &c .............4: — :11

To Wm Snelling Phisitian................... . 1:10:—

To Edward Budd for house rent.................2:18:—

To Expences at Receipt of mony for the Barq[ue] ......... — :[7]:—

To mr John Davenport for his Servants keepeing the barq[ue] . . . 1:10: — 1

To doctor Chiehery ...................... — :04:—

To Necessaryes for the Negro................'. . — :02: — ■

To mr Tailer for wine at the funerall............... — :15:—

To Belnap for Gloves .....................1: — :—

To Robt Carver for a Debt...................8:03:—

To Edwd Budd for mony Lent mr Sheppard ........... — :17:06

To Clothing for the negro ................... — :10:—

To a Legacy given to John Endicot...............5: — :■—■

To a Legacy given to John Scottow ...............5: — :—

To Goodwife George for a paire of fine Sheets...........1: — :•—■

To Ditto for Butter dd to mrs Sheppard .............2: — :—

To mr Anthony Chiehery for a debt due per bill by mr Sheppard .... 5: — :—

To six months warehouse roome & Charges for about ye weighing of the Loggwood..........................7: — :—

To mony to Wm Aglin for a debt ................— :02:06

To mony for a pillow beare borrowed per Mrs Shepperd & Lost . . . —:03:06

To Disburstmts at Two Courts wthmr Alford in defending the Estate . 2:01:08

To Disburstmts in defending the estate at a Court agst Hawford Higgs & Middlecot .........................2:10:09

To Disburstmts in defending the Estate at a Court of assists against middlecot ...........................2:07:—

To Seventeene weekes Dyet for the negro at 4s per weeke......3:08:—

To Rent for a Chamber to lay up the goods............2:10:—

To Mrs Emory per Execution.................. 53:05:—

159:19:10

To John Scottow for his trouble & time in attendance upon Courts &c . 10:— :00

To John Endicott for his trouble & time in attendance upon Courts &c . 10:00:00

179:19:10

Signed by [ ] 8: 77 John Scottow

John Jndecott

Per Contra Cr

li s d

By weareing apparrell household goods loggwood & mony Reed as per Jnvent.......................... 349:08:11

John Shepard, Andrew’s brother, died at Wicomico, Maryland, according to the following deposition (S. F. 1718.27):

S. F. 1718.27

Abraham Blagg of Plymouth in Old England Marriner, aged Twenty foure yeares or thereabouts, deposeth and Saith, that Sometime in December last past, being in Wicacomaco, in the province of Mary land, aboard the good Ship Thomas & Mary of London, Capt William Adams Commandt and intmatly acquainted with him, mett on board said ship with one John Sheppard Brother to Andrew Sheppard of Boston Deceased, as he said, where in discour[se] heard him relate of his intention for old England and Holland, with the Said William Addams, and there buy a Shipp and So intended for Boston in New England, to Settle all his accounts there and to receiue what his Said brother Deceased had left him, by will, but it so pleased god that about the 13th day of December last past to visitt him with a fitt of Sicknesse and J being desired by Capt Wm Addams abouementioned to accompany him on Shoare, to the house where he Lay, did visitt him in his Said Sicknesse, and perceiving little hopes of his Life, he was there in this Deponents hearing, desired to Settle all his Concernes, by making his will, Saying that by that his dayes would neither bee Lengthened nor Shortned, whereunto he readily Consented, and this Deponent was then desired (for want of another Scribe there being no man Capacitated that way present) to draw his will, which he accepted, and drew it, as it may more evidently appeare, by a Probate under the hand and Seale of the honnorable Phillip Calvert Esqr Secretary of state in the province of Mary Land, which will, this Deponent Saw Signed Sealed and deliuered, by the Said John Sheppard to the Seuerall vses therein Specified and that then (as it is in the Said will Exprest,) to the best of this Deponents Judgment he was of a Sound minde & memory though weake in body, and this deponent further Saith that he Saw the Said John Sheppard Deceased to take boate to goe on Shoare, when he was first of all visited with Sicknesse to Seeke meanes for his recouery — and that he was then to the best of this Deponents Judgment, noe way overtaken in drincke and this Deponent further Saith he was Severall times in the Company of the Said John Sheppard, Deceased, before he was taken Sick and never Saw him to the best of his Judgment in Drincke, though plentifully enough to be had, and further this Deponent Saith not.

Taken vpon Oath this 25th day of may 1677

Before me Thomas Brattle Commissr

Copia Vera attestr Jsa Addington Cler

On appeal to the Court of Assistants (Records, i. 79), the judgment was reversed. After that Mrs. Martha Emery of Nevis, W. I., who, as Ann Bromehall deposed (S. F. 1718.30), was the only surviving legitimate child of Andrew Shepard’s parents, petitioned the Court as follows (S. F. 1718.5):

To the Honrd Governor Deputy Governor & the Rest of ye Worsppll Magistrates Now Assembled in the Court of Assistants in Boston this 4 of Sept 1677

The Petition of Martha Emery the wife of and attorney unto her husband Thomas Emery of the Island of Nevis

Humbly Sheweth

That whereas my brother Andrew Sheppard deceased died here in Boston made his will wherein he made Iohn Scottaway and Iohn Endicott Executors and gave most of his Estate to his & my own brother Iohn Sheppard who died unpossessed thereof both dying with out issue I being thier own sister & the only child liveing of our parents; & Mr Richard Middlecott by vertue of a letter of Attorney from one in Virginia is now in prosecution by law in ordr to the obtayning the Estate for a person no way Related My humble Petition to this Honrd Court therefore is that Yor Honrs would be pleased to accept these few lines by way of Caution to prevent the said Estate from being delivered to those that have no right to it but to Consider how nearly I am concerned in reference thereunto

1 In being thier own sister as will appear by Evidence here in town & therefore the proper heiress to it

2 Because my husband as is well known to severall in this town have formerly been at great Charges in bringing up my two brothers now deceased when they were young in the West Indyes

3 Because my husband when my brother Andrew was grown up sent him out a tradeing betrusting him with a considrable Estate & have ever since had little or no returnes the sum of which is Expressed in the Account I have brought with mee & finding the Estate so intangled as it is I have arrested In0 Scottaway & Iohn Endicott Executors to my Brother andrew shepards Estate to Answer my Complaint for what is due on account to my husband at the next County Court to be held at Cambridge Wherefore I humbly request this Honrd Court if it may be with Iustice granted that the property of the Estate may not be altered untill my Condition is Considered and my Case tryed that so I may not be prevented of obtaining what is due to my husband upon account nor of my birthright & Yor humble Petitioner shall be ever obliged to Pray &c

Martha X Emery

her Mark

The petición was presented & Read Jn Court 4. Septemb1 1677. in Court as martha Emerys Caueat agt proceeding &c.

as Attests Edwd Rawson Secret

Several other cases were started against the Shepard estate (see below, pp. 822,953); but these records do not extend far enough for us to reach the final disposition of them.]