Bower v. Burt

6 Rec. Co. Ch. (S.C.) 98

• Court: Court of Chancery of South Carolina
• Decided: November 17, 1714
• Status: Published

Opinion

To the Right Honourable Charles Craven Esq. Governour etca and to the rest of the true and absolute Lords and Proprietors Deputies Sitting in Chancery.

Humbly Complaining sheweth unto your Honours your Orator Henry Bower of Edistoe Island in Colleton County in the Province of South Carolina planter administrator of all and Singular the Estate Goods and Chattells Rights and Creditts of William Wells late of Boheckett in the County of Colleton in the province of South Carolina aforesaid planter deceased as also the Surviving Trustee or overseer of the last Will and'Testament of the said William Wells deceased That the said William Wells was in his life time and at the time of his death seized in fee Simple of and in Two Hundred and Twenty acres of Land scituate in Colleton County aforesaid and lyeing and being on the Northwest side of a large Creek out of North Edistoe River comonly called Bo:hi:cutt. Creek butting and bounding to the south Eastward on the said Creek to the South Westward part on a Branch of the said Creek and part on the Lands then or late of Mr. Edward Jervis to the Northwestward on Lands of the said Jervis and to the North Eastward on the Laxids then or then late of Roger Newington by virtue of a Grant to him thereof made by the right Hon-ourable Joseph Blake Esq. [blank] principall Trustee and the rest of the Lords proprietors Deputies appointed for selling of Lands in this province [blank] bearing date the two and twentyeth Day of Aprill Anno Dm one thousand six Hundred and Ninety Eight and also of and in Seven Hundred Acres of Land butting to the Eastward on the Lands then or then late of Samuel Shad-dock to the North on Liddenways Creek to the west on Land then or then late of William Addams and to the south on Bo: hi: cutt Creek by virtue of one other Grant to him thereof likewise made by the right Honourable James Moore Esq. and the rest of the Lords proprietors Deputies [blank] bearing date the seaventeenth Day of February Anno Dm one thousand Seven Hundred and one as in and by the said two Severall Grants duely Recorded in the Secretarys Office of the province of South Carolina aforesaid relation being thereunto had doth and may more fully and at large appear And being so seized he the said William Wells by his last will and Testament in writing duely published under his Hand and Seal bearing date the Eighteenth day of February in the year of our Lord one thousand seven Hundred and Eight after severall Legacies therein bequeathed did give devise and bequeath as follow-eth in hoc Verba Item All my Land that is or may be called mine with all the Improvement on the same after the Death of My beloved Wife I give and be-' queath unto my beloved Sister Grace Sackwell now liveing at Manington in Lower Goosedge parish in the County of Dorsett in Old England if she comes here in Seven Years after my Decease or if any of her Children will come hither to possess it my will is that they Shall Equally divide the said Land between them provided that they come within the time before mentioned and if none of her Children will come hither in the time before Specified I do give and bequeath the said Land unto any that is nearest of kin unto my beloved Wife there in England if they shall come here in Seven Years after my decease But if none of these do come here within the aforesaid time Then my will is that the aforesaid Land be appropriated to the repairing of the Meeting House that is on Edistoe Island and for the support a cow of any Minister that shall be called to Excercise in it provided they are of the presbyterian or Independent Judgment. And your Orator further sheweth unto your Honours that the said William Wells deceased did in and by his last will constitute and appoint Your Orator and one William Fry late of Edistoe Island planter deceased Trustees or Overseers of his said last Will in order to see the same justly performed and fullfilled in these Words following— Item further it is my will that my beloved friends Mr. Henry Bower and William Fry both of Edistoe Island be assisting to my Executrix herein after named in whatsoever she may stand in need of their Help in order to her fullfilling of this my last will and Testament or in any thing Else that She may stand in need of their Assistance and did likewise Constitute and Appoint Frances Wells his wife Executrix and residuary Legatee of his said Last Will in these words following Lastly I doe ordain Constitute and appoint my well beloved wife Frances Wells to be the Sole Executrix of this my last Will and Testament and unto her my beloved Wife I do give and bequeath all the rest of my Estate not yet given and bequeathed whether Goods or Chattells or whatsoever is mine or may be called mine as in and by the said Will duely proved and now likewise remaining on record in the Secretarys Office of this province may more fully appear And your Orator further Sheweth unto your Honours that the said William Wells soon after making his said last Will (vizt) in or about the month of February One thousand seven hundred and [blank] departed this Life leaving the said Frances Wells his Widow who dyed likewise about the Month of April last past that since the decease of the said William Wells which is now almost Six years Notwithstanding all proper Methods made use of to notifye the contents of the aforesaid Will to them neither the said Grace Sackwell Sister of the said Frances Wells in the testators Will named or any of her Children or of Nearest of kin to the said Frances Wells in England are or have come over from England to this province To lay any claim to the Estate of the said William Wells deceased And your Orator as the only surviveing trustee or Overseer of the last Will and Testament of the said William Wells ought imediately on the death of the said Frances Wells to have entred into and taken possession of all and singular the Estate of the said William Wells to and for such Uses Intents and purposes as by the said last Will and Testament of the said William Wells are limitted and appointed concerning the same, But now so it is may it please your Hon-ours that the said Frances Wells in and by her last will and Testament after some Legacyes therein bequeathed did give devise and bequeath all her reall and personall Estate to one James Burt, by virtue and colour of which Will of the said Francis he the said James Burt hath entred into and taken possession of all and Singular the Estate of the said William Wells deceased and receives the rents Issues and profitts thereof and converts the same to his own proper Use and gives out in Speeches that your Orator by the last Will and Testament of the said William Wells is not appointed a Trustee or Overseer of the same and that your Orator hath no pretence or [illegible] to Intermeddle therewith and Notwithstanding that Administration of all and singular the Estate Goods and Chattells Rights and Creditts of the said William Wells unadmin-istred to by the said Frances Wells has been granted to your Orator he the said James Burt doth still hold and detain the possession of the said Estate of the said William Wells deceased from your Orator and receives the Rents Issues and profitts thereof and converts the same to his own Use in manner as aforesaid and refuses to give any account thereof to your Orator tho your Orator is advised and humbly hopes that in as much as neither the said Grace Sackwell or any of her Children or any of nearest of kin to the said Frances Wells deceased in England are as yett come over from England to this province The Rents Issues and Profitts of the said Estate are appendant and ought to go to be applyed to and for the same Uses Intents and purposes as are limitted and appointed of and concerning the Estate of the said William Wells deceased in and by his said last Will And the said James Burt does likewise give out in Speeches that there is a considerable Overplus Number of Acres more than is mentioned in the said plotts and Grants of the said Estate made to the said William Wells in his life time and that he will procure to himselfe a plott and Grant of Such overplus acres and as your Orator has been Informed has paid to the Lords proprietors Receiver of this province some Sume or Sumes of Mony for the said pretended Overplus acres and has Gotten a purchase receipt for the same tho your Orator doth not know that there is any greater Number of Acres than what were granted to the said William Wells in his life time in and by the said two severall Grants herein mentioned and beleives likewise that the said William Wells deceased did not know the same did contain any Greater Number of acres than what are mentioned in the said Grants when he purchased the same Wherefore your Orator humbly hopes That if it shall Appear upon a due and legall Survey to be made of the premisses that the same do contain a Greater Number of acres than are expressed in the said Grants he shall be first admitted to make a purchase thereof In trust only and that such Overplus number of Acres if any such there be may goe to and be applyed to such Uses Intents and purposes as the said Nine Hundred and twenty Acres were intended to be in and by the said Testators said last Will And your Orator further Shews unto your Honours that the said James Burt has likewise gott into his Custody possession or power all and every the plotts Grants Deeds Minuments Evidences and Writings relating to the said Testators Estate and refuses to deliver the same unto your Orator All which actings and doeings of the said James Burt are contrary to Equity and Good Conscience and renders Your Orator incapable to discharge the trust and confidence reposed in him by the said Testators said Will and for as much as your Orators Witnesses who could prove the truth of all and Singular the premisses are either dead or dispersed into places remote and beyond the Seas so that your Orator cannot have the benefitt of their Testimony at any Tryall to be had at Common law and for that matters of this nature are properly releivable in a Court of Equity before Your Honours To the End therefore that the said James Burt may on Corporall Oath Sett forth and discover the truth of all and singular the premisses as if the same were here again particularly repeated and interrogated and more particularly whether the said Testator William Wells deceased was not in his life time and at the time of his Death Seized in fee Simple or of some other Good Estate of Inheritance of and in the said Nine Hundred and twenty Acres of land herein before mentioned and whether he the said William Wells did not make such last Will and Testament and thereby give and devise the said Nine Hundred and Twenty acres of Land to and for Such uses intents and purposes as therein and herein before is Sett forth and whether he the said James Burt did not imediately or how sone after the Death of the said francis Wells enter into and take possession of all and Singular the said Nine Hundred and twenty Acres of Land and receive the Rents Issues and profitts thereof and convert the same to his own Use and that the said James Burt may Sett forth and discover by what Title or Colour of Title he holds the said Nine Hundred and twenty Acres of Land or any part of them and why he refuses to give your Orator possession of the same and whether he hath not frequently declared that your Orator by the last will and Testament of the said William Wells deceased is not appointed a Trustee or Overseer thereof or words to that Effect and whether he hath not got into his Hands Custody or power all the Grants Deeds Evidences and Writings relating to the said Nine Hundred and twenty Acres of Land or what is become of the same and whether he the said James Burt has not given out that the said two Grants of the premisses mentioned to contain Nine Hundred and twenty Acres Doe contain a much greater Number of Acres and whether he hath not endeav-oured to get a grant of Such overplus Acres and got a purchase Receipt from the Lords Receiver for the said Surplus Acres and whether he hath not been told by your Orator that if any Such Surplus Number of acres there were your orator would purchase the same In trust and for Such Uses Intents and purposes as the said Nine hundred and twenty Acres were limitted and appointed in and by the said Testators said Will Wherefore that the said James Burt may be compelled to deliver unto your Orator the possession of all and Singular the Lands Tenements and Hereditaments whereof the said William Wells dyed seized of together with all such Deeds Grants Evidences and writings which any ways touch or concerne the same and that your Orator may have the first refusal of the purchase of such Overplus Number of acres if any there be In Trust only and that the same may go to and be applyed to Such Uses Intents and purposes as are limitted and appointed of and concerning the said Nine Hundred and twenty Acres in and by the said Testators said Will and that Your Orator may be quieted in the possession of all and Singular the premisses In Trust as aforesaid May it please your Honours to Grant unto your Orator one writt of Subpena to be directed to the said James Burt thereby requiring and Commanding him at a certain Day and under a Certain pain therein to be limitted personally to be and Appear before your Honours in this Honourable Court then and there true plain perfect and distinct answer to make to all and Singular the premisses and also a writt of Duces tecum requiring the said James Burt to bring into this Honourable Court all Deeds Evidences and writings touching and concerning the premisses or any part thereof and further to stand to and abide such order and Decree as to your Honours shall seem meet. And your Orator shall ever pray etca.

Rich: Allein ³³

33 Richard Allein, attorney-general in 1718, was chief justice 1727-1731, during President Arthur Middleton’s anarchic administration. See McCrady, S. C. under the Royal Government, passim.