Boag v. Simerall

6 Rec. Co. Ch. (S.C.) 247

• Court: Court of Chancery of South Carolina
• Decided: February 12, 1718
• Status: Published

Opinion

The Answer and Demurrer of John Simerall and Mary his Wife who was the Widdow and Relict of Richard Peterson Sen. deceased Defendants to the Bill of Complaint of Peter Boag and Rachell his Wife Daughter of the said Richard Peterson Sen. deceased Complainants.

The said Defendants Saving and reserving to themselves now and at all times hereafter all and all manner of advantages and benefitts of Exception to the many untruths Incertainties Insufficiencyes and Imperfections in the Complainants Bill of Complaint Contained for a full and perfect Answer thereunto or to Such part thereof or so farr as it materially concerns these defendants either of them to make Answer unto They Severally Answer and Say, And first the said Defendant Mary doth Admitt it to be true that the said Richard Peterson in the said Bill of Complaint named was in his Life time and at the time of his Death possessed of Some personall Estate (but not Seized of any real Estate to this Defendants knowledge as in the said Bill of Complaint is untruly Suggested) And that the said Richard Peterson did on or about Such time as is mentioned in the said Bill of Complaint duly make and Execute his Last Will and Testament in writing And therein did make Such Bequests to Such persons and in Such manner as in the said Complainants Bill of Complaint is mentioned and more at large Sett forth And to which for more Certainty and the better Information of this Honourable Court this Defendant doth refferr And did there appoint this Defendant Mary and his Son Richard (Since deceased) Executors and Soon after Vizt Some time in or about the Month of October Anno Domini 1710 departed this Life And As to the Residue of the said Bill of Complaint the said Defendants by protestation not Confessing or acknowledging the Same or any part thereof to be true in Such Sort maner and form as the Same are therein and thereby Sett forth and Al-ledged the said Bill being Exhibited against these Defendants to have an account of the Estate of the said Richard Peterson the father (pretended to be due to the said Complainants by the intermarriage of these Defendants) and that the Same may be paid or delivered to the said Complainants in Specie or the Value thereof the said Defendants do demurr thereunto for that the said Complainants Bill Contains not any manner of Equity to ground any Decree or give the Complainants any Assistance as these Defendants are advised and for further Cause of Demurrer Say that the Bequest of the whole personall Estate of the said Richard Peterson the father, bequeathed by the said Will to the said Defendant Mary during her life, and in Case of her death or Marriage to Edward Peterson (One of the said Testators Son) and the Complainant Rachell, is an Absolute Devise in the Law of the Same to her the said Mary for Ever, for the Remainder is void, as these Defendants are advised, It being a per[s]onalty as in the Nature of a perpuity and so is a void Devise for the same being Once vested in the said Defendant Mary, can never be divested again, Wherefore and for many other apparent defects in the said Bill contained these Defendants do deny to Answer to all the Matters in the said Bill not herein before Answered unto and also to the Reliefe prayed thereby, And do humbly Crave the Judgment of this Honourable Court, Whether they or either of them shall be Compelled to make any other or farther Answer thereunto, Without that that any other Matter or thing in the said Complainants said Bill of Complaint contained material or Effectuall in the Law for these Defendants to make Answer and Demurr unto and not herein or hereby well and Sufficiently Answered and demurred unto confessed or avoided traversed or denyed is true to the knowledge of these Defendants All which matters and things these Defendants are ready to aver maintain and prove as this Honourable Court shall Award, And most humbly pray to be hence dismissed with their reasonable Costs and Charges in this behalfe most wrongfully and unjustly Sustained.

Hepworth