RECORD BOOK "F"
1849 - 1852
page 4

Abstracted Jan 2007
by Milly Wright
Submitted for use on these
pages Aug 2007.

(Note: The book has not been transcribed in its entirety, although each
case is included. Spelling follows the original as closely as possible.
In some cases testimonies and proceedings have been summarized.) msw

Page 269

This defendant states expressly that the complainant well knew, in the
lifetime of her said husband that the suit of Samuel Taylor and others
against the said George M Savage, executor of the will of Samuel Savage
decd had been instituted in the said District Court at Huntsville, and
that the amount claimed by the Complainant in that suit was very large,
greatly exceeding the value of the said Samuel Savages Estate, and this
defendant believes that the complainant knows well that said suit is
still pending, and undetermined in the Supreme Court of the United States.

This defendant denies that there is to her knowledge or belief any
combination between her husband, the said Hervey Dillahunty and Vincent
M Benham to cheat and defraud the Complainant or that her husband is the
real manager in the administration of her said father’s estate. And from
information which she believes to be true, this defendant denies that
there was, or is any combination, or confederation between her said
husband and the said George M Savage to cheat and defraud the said
complainant and the other legatees of the said Samuel Savage or any of
them, out of their residuary interest in said estate, or that it was
with any such view that the said George did not carry into effect the
5th item of the will of his testator, on the contrary thereof no
division of the proceeds of the crops raised on said plantation were
ever made by the said George (as this defendant verily believes) because
said estate was involved in heavy and doubtful litigation as herein
before stated.

And this defendant further says that said Complainant has told her (this
defendant) since the death of her intestate and since the removal of the
said George M Savage from his office of executor of the will of Samuel
Savage that she had always understood and believes from her own
observation while residing with her husband (the said Samuel G Savage)
on the plantation of the said Samuel Savage and from information derived
from her said husband, and the said George, that he the said George had
not and would not divide the net proceeds arising from the crops raised
on said plantation until the said suit of Samuel Taylor and others
against him as the Executor of his father’s will was finally determined.

All of which matters this defendant doth aver and plead in bar of the
Complainant’s Bill, and of the Complainants demands, without this, that
any other matter or thing in the said Complainant’s said Bill of
Complaint contained material, or necessary for this defendant to make
answer unto, and not herein or hereby sufficiently answered unto,
confessed and avoided, traversed or denied is true. And this Defendant
having fully answered said bill, humbly prays to be hence dismissed with
her reasonable costs and charges in this behalf most wrongfully sustained.
Hervey Dillahunty, solicitor for defendant

15 April 1846 Behethaland M Dillahunty

Page 270
Exhibits A and B

“That whereas a matter of controversy has arisen between the parties of
the first part and second part hereto in reference to the interest which
the said party of the first part (Ann R Savage), as the widow of the
late Samuel Savage claims in the Estate of said Samuel Savage deceased,
and the parties of the first and second part being desirous to settle
and adjust the matter of difference between them in an amicable and
friendly manner do mutually agree to submit the matters in dispute
between them to the arbitrament and decree of disinterested and discreet
persons - Benjamin Reynolds, John Lorance, James W Stewart and John Key.

Page 271
Property given to Ann R Savage.

Page 271
Answer of Samuel J Rucker

... This Respondent knows nothing of the proceeds of said estate or the
management thereof, except that he Benham has been involved (and still
is so involved) in much litigation with complainant and others about the
business of said Estate. Respondent further says in answering that he
believes it to be true that the family of the said Hervey Dillahunty
have resided upon the plantation of the said Samuel Savage since the
latter part of August 1842, but Respondent does not believe that
complainant or the distributees of said estate have any just cause of
complaint therefor, inasmuch as much of the time and attention of the
wife of the said Hervey since he resided there has been bestowed in and
about the business and care of said estate and this respondent having
read the answer of the said Behethaland to this charge of complainant,
believes that her said answer to said charge is true, and that neither
complainant nor himself have been injured by the residence of the said
family as aforesaid.

And in addition to the above, respondent says that he is informed and
believes that the said Hervey by his unremitting personal attention to
the litigation in which said estate has been involved has rendered very
essential and important aid in the management of its affairs.

Respondent admits that William F T Savage was dead when the said Will
was made, but he does not admit that the bequest therein to the said
Samuel G was a vested legacy at the time he died. Respondent admits that
the said Ann R Savage is dead but does not know when she died.
Respondent insists that the estate of the said Samuel Savage has not
been in a condition since the institution of the suit of the said Taylor
and others to be distributed. - That it would be iniquitous to make a
partial division of said estate before the said litigation shall have
been closed, of the pendency of which respondent says complainant has
long known.

Respondent believes that the said Benham has done and is doing all he
can to bring said suit to a close, and that it is not the fault of said
Benham or any agent of his that said suit is undetermined.

This Respondent is at the time of filing this answer of full age (ie of
the age of twenty one years, and assents to the condition expressed in
the Will of the said Samuel Savage upon which Respondent and his said
Sisters are to take the bequest and devises in said Will made to them.
And this Respondent having fully answered prays that he be hence
dismissed with his reasonable costs.
S C Posey, Solicitor
Samuel J Rucker, 1 May 1846

Page 274
Answer of Samuel T Johnson

... He admits it to be true that Samuel Savage the elder died several
years ago, that he left a last will and testament devising and
bequeathing his property as therein set forth, a copy of which last will
and testament he believes is truly set forth in the answer of his mother
Behethaland Dillahunty. Respondent being till November 1844 a minor took
but little interest in ascertaining the facts in regard to the
management of said Estate either by said George M Savage or by said
Benham and has no knowledge thererof which is in its nature certain and
can neither admit nor deny them and requires proof so far as he may be
affected by the statement and charges in said bill.

He did see George M give Samuel G about $700 out of the proceeds of the
crop of 1838 in order to pay his debts - Samuel G gave him a small sum
out of it which he owed him. ... knowing the litigation therein
mentioned exists, a considerable portion of which litigation is owing to
the complainant herself and her father her agent or assuming to be so.

“If complainant is considered entitled the other legatees will be
equally so, and no funds or property will be left to pay any demand
against the Estate whether debts or expences, and the admr being
personally responsible for fees to lawyers and on other contracts made
by him for the benefit of the estate will be placed in a bad position if
distribution generally be ordered.” ...

James Irvine, Solicitor for Samuel T Johnson
4 May 1846

Page 275
Answer of Frances Matilda Rucker
20 September 1848

... “This defendant states that before her removal to the State of
Tennessee, a suit had been instituted against George M Savage as
executor of the will of Samuel Savage, in a court at Huntsville by the
legatees of William T Taylor, which suit she was then informed and
believes involved a very large amount, and she this defendant has read
the answer of Vincent M Benham and the other defendants in this cause
all of which she believes give a true statement of the facts in relation
to the condition and management of said estate at the time said answers
were filed.

Since that time the suit brought by the legatees of William F Taylor has
been finally decided and the decree in their favor has been paid by
Vincent M Benham as this defendant has been informed and believes, so
that there is nothing now to prevent a division of the estate of the
said Samuel Savage but the litigation brought on by the complainant and
her father and brother. Further answering this defendant says that she
is now of the age of twenty one years, and that she assents to the
condition stated in the will of her grandfather, the said Samuel Savage
upon which herself, her brother, and sister are to take the legacies
given them.
Frances M Rucker
Hervey Dillahunty, Solicitor for Defendant

Page 278
Answer of Ann Eliza Rucker, an infant over the age of fourteen years and
a legatee under the Will of Samuel Savage deceased by her guardian ad
litem William B Wood to a bill of complaint exhibited against Vincent M
Benham ... No personal knowledge
Ann Eliza Rucker
Hervey Dillahunty, her Solicitor

Page 279
Answer of Charles S Dillahunty, Samuel Savage Dillahunty, Hervey
Dillahunty Junior and Milly S Dillahunty filed by their guardian ad
litem Hervey Dillahunty Sr..
Charles and Samuel were infants over the age of 14 years, and Hervey
Junior and Milly were infants under the age of 14. ... No personal knowledge
22 September 1848

Page 279

The answer of Gideon J Johnson (who is called in complainant’s bill by
the name of John A Johnson) to a bill of complaint exhibited against
Vincent M Benham administrator de bonis non, ...

He is the son of Behethaland M Dillahunty. ... at the time of filing
said bill, he was as is alledged, an infant under the age of twenty one
years, but has since that time attained said age, and prays leave of the
court to answer and defend for himself. ... believes his mother’s
statements. Suit with Taylor has been settled.

Page 281
Questions for James W Stewart

... Declare if you know about what time George M Savage left this county
and where he resided at the time he left and how long he had resided at
that place before his departure, and whether his family resided with him
the whole of the time, and whether he and family derived their living
from the estate of Samuel Savage, and whether they resided in the
mansion formerly occupied by the said Samuel Savage in his lifetime, and
declare if you know whether the said George had any visible means of his
own from which he could have supported himself and family, and declare
what his living and the rent of the houses he occupied was reasonably
worth pr annum from the time he moved on said plantation untill he left it.
I
Interrogatories prepared for Martha E Savage by her Solicitors Cooper,
Walker and Baker

Cross interrogatories prepared by James Irvine, S C Posey and Hervey
Dillahunty

Page 285
Jas Irvine, S C Posey, H Dillahunty, Solicitors for Defendants

Sterling A M Wood Esqr commissioned to call and cause to come before you
.. James W Stewart, William R Garner, and Daniel Thompson, witnesses in
behalf of the complainant in the suit pending in our said Chancery Court
wherein Martha E Savage administratrix of Samuel G Savage is complainant
and Vincent M Benham and others are defendants.

Page 286
April 22, 1846

William R Garner deposition

“I went to the plantation in the latter part of 1842 and resided there
during the years 1843 and 1844 in the capacity of overseer, was employed
by Mr. Benham and left there in the latter part of December 1844.

I had about twenty nine heads when I first went on the plantation, that
worked on the plantation making about twenty hands. About the first of
March, 18 or 20 of the negroes were taken away by the Marshall, and kept
about one month; they were the choice negroes except the Blacksmith and
one or two others. They returned about the 1st of April 1843, and
remained all the time I was on the plantation. Nine more hands came on
the plantation some time in December 1843, and remained on the
plantation untill I left in 1844. I cultivated corn, cotton, wheat and
oats. I raised in 1843 eighty odd bales of cotton, and in 1844 I raised
about 135 bales - witness says he cannot state precisely. There was
sufficiency of every thing except meat, raised on the plantation for its
support. Meat was bought the last year, but the plantation supplied
about three fourths of the meat the second year viz 1844.

Mr. Benham sold Mr. Saub sheep and beef cattle to about the amount of
seventy or seventy five dollars in 1843. Witness knows of nothing else
that he sold.

Mr. Dillahunty and his family were living on the plantation when I went
there, and resided there untill I left, in the mansion house formerly
occupied by Mr. Samuel Savage decd. They lived so far as I know off of
the means of Savage’s estate, Mrs. Dillahunty cultivated about one acre
of corn and four or five acres of cotton the last year and her garden
which was cultivated by her both years. I think Mr. Dillahunty purchased
somewhere about five hundred weight of bacon the second year, but am not
positive to either the amount or the year in which it was bought.

Mr. Dillahunty had no servants of his own the first year, but had a
small boy the second year in the latter part of the year that did not
belong to Savage’s estate. Flour of the servants belonging to the estate
of Samuel Savage stays about the house each year waiting on Mrs.
Dillahunty’s family, cultivating the garden etc, viz one old negro man
the cook (Morris) (Called Moses by Mrs. Dillahunty), one old woman very
old unable to do much about the plantation named Aggy - One negro woman
named Clarissa afflicted with the scrofula, able to work unless that
disease injured her, but I am unable to say whether it would or not. One
girl ten or twelve years old, who waited in the house named Diana never
had worked out, but was larger than some I had out. Morris would have
been worth $2 5.00 or $30.00 a year, Aggy would have (been) worth about
$20.00 a year, Clarissa would have been worth from $40 to $50 (if not
injured by the scrofulous disease) a year. Diana would have been worth
from $20 to $25 a year. None of these Negroes were at all under my
control. I gave out meat to them the two negro women were employed in
spinning whether for Mrs. Dillahunty (who had control of the spinning)
or for the plantation I do not know. The house was worth something, I do
(not) know how much, but probably $25. or $30. a year. There were seven
in Mrs. Dillahunty’s family. Mrs. Dillahunty had a horse the last year
time enough to use him in cultivating a crop. Samuel Johnson (one of the
family) usually kept a riding horse. The family including the four
negroes annually consumed food and provender to the amount of about $70.
or $80.

Mr. Benham was on the plantation a few times not often, he knew that Mr.
Dillahunty and family lived there, he knew the manner in which they
lived in part. I told Mr. Benham that there was four negroes about the
house, and that they were old and not able to do much. Mr. Benham said
if they were not able to do much good to allow them to remain. I was not
directed in any respect by Mr. Dillahunty, we advised together he
appearing to take a good deal of interest about the plantation.

Cross Interrogatories
William R Garner

I know nothing of the amount of means he carried or whether he carried
any.. He had corn, plenty of wheat, a very fine crop, one hundred and
fifty or two hundred bushels, and had some bacon together with a fine
stock of hogs, about the time he moved to the plantation of Samuel
Savage decd. I know that some hogs were killed at Savage’s plantation
but do not know to whom they belonged.

Mrs. Dillahunty did send the old man Morris out in the field but I do
not recollect the reason he was sent back. I think that Mrs. Dillahunty
proposed taking Hannah and allowing Morris to go out in the field. I do
not know whether Morris cooked for all the negro children or not; it is
probably he could for some, and may be all.

There were near twenty negroe children. Old Amy cooked for some three or
four of the negroe children. Mrs. Dillahunty attended to the spinning
and weaving for clothing the negroes. I do not think the negroes had
sufficient winter clothes, but had plenty of summer clothes. She cut out
the clothes herself or had it done by one of the negroes and attended to
the sick and negro children. I attended to the sick and negro children
as much as an overseer usually does on plantations.

William R Garner

Page 288
Interrogatory - James W Stewart (a physician)

I am acquainted with the parties and have known them a good many years.
I know that Burroughs was indebted to Savage about the year 1837 the
debt existed before the death of Savage. I think it was by note and
$150. was collected by George M Savage in 1840 leaving a balance due.

I am well acquainted with said plantation. I have lived from one to five
miles not farther than that, and in the last six or seven years about
three miles. I have frequently been upon said plantation, and my
opportunity of knowing the extent has been good and since 1837 there has
been about 35 hands regularly on said plantation.

I am a planter, the annual expences of such a plantation as Samuel
Savage would be $1500.00 a year on an average.

I do not know what was raised each year having no distinct recollection
about it. I think that four bales to the hand would be a fair average,
does not know what each crop was respectively worth. I have been
acquainted with the cotton market but cannot state the price of each
year. Cotton has sold since the year 1837, sometimes as low as four
cents and at others as high as 10 cents. I bought part of the crop of
1842 about 23 bales of V M Benham and paid 5 cents for it. I received it
as cash for a medical account.

Witness states that he has before answered as to what he bought himself
and does not know of the selling of any other part of the crop by Benham
although it may have been sold by him. I was told by Savage and by S K
Oates that Samuel K Oates had purchased a hundred bales at 5 cents pr pound.

He (George Savage?) left about the close of the year 1842. He resided
upon the plantation of Samuel Savage decd. He was there about three and
a half years. His family resided with him. They lived in the house of
Samuel Savage decd. I presume he lived upon the estate as G M Savage had
no visible means of his own. I think that $75 a year was as much as they
would consume of things belonging to the estate, as to the house I think
the estate was not injured, but its interest promoted by his living
there, his wife being a careful tenant.

Mr. Dillahunty removed to the plantation of Samuel Savage decd in 1842
about the 1st of September and continued to reside there. He has six in
family, besides two step sons. One has been there steadily, the other
more than half the time, and perhaps not so much. Mr. Dillahunty one of
the six has been there but little, very seldom. They occupy the Mansion
house of Samuel Savage decd. I do not know of any means he has save his
time and talents, and cannot tell what he makes. I think they would
consume in living not more than $150. worth of things off of the estate.
I have been there frequently. I have seen no one about the house save
the old man the cook, and a little girl. The old man Morris would not be
worth more than $25 or $30 a year. The little girl when I saw her would
not have been worth more than her victuals and clothes.

I do not recollect the names of the Negroes taken away by George M
Savage, and cannot tell their seperate or collective value. I know
nothing of the horses and mules.

I paid $130. of the Burroughs debt to George M Savage in the settlement
of a medical and lumber account, and I think twenty dollars more in that
or some other way.

There are many causes which may increase the expences and I was paid
$100. in 1839 by George M Savage for the purposes connected with a suit
against the estate of Samuel Savage deceased.

The said George M Savage at the time he resided on said estate was the
acting executor of Samuel Savage decd and was managing said estate.

I know that Mr. Dillahunty had family supplies, and know that he moved
them to the plantation of Samuel Savage. He had meat and corn and wheat
that were moved from his place with him to the plantation of Samuel
Savage. I know that he had a crop of corn and cotton, and a good stock
of hogs, and I know that some of the hogs were killed in 1842 for the
use of Mr. Dillahunty the next year, and that some live hogs were hauled
there. I know that corn was hauled there, but do not know the precise
amount of either.
I have seen her attending to the cutting out and preparing the negro
clothes. I frequently gave my directions to Mrs. Dillahunty about the
sick, and she did attend to taking care of them. Her services about the
estate were worth $150.00 a year, and that a low estimate.

Jas. W Stewart.

Page 289
Interrogatory - Daniel Thompson

I went to the plantation of Samuel Savage about the last of December
1844 and remained untill November 1845. I was employed by Vincent M
Benham, and remained there as overseer.

I had thirty five hands under my care of an average set for that number;
I cultivated corn, cotton, oats and wheat. I do not know how many bales
of cotton were raised nor whether sufficient bread stuffs were raised,
and I know that there was not sufficient stock raised for meat.

Mr. Benham did not sell any provisions whilst I was there.

Hervey Dillahunty’s family lived there when I was there, were there when
I arrived, and when I left. Had no means that I know of, save those of
the plantation, all lived alike off of the plantation, they did not
purchase any provisions that I know of.

There was a boy staying in Mr. Dillahunty’s family that did not belong
to Savage’s estate. There were some of the Negroes of the estate of
Savage about the house, waiting upon Mr. Dillahunty family and
controlled by them entirely - There was four not under my control about
the house and yard, Morris an old man who was the cook for Mr.
Dillahunty’s family - a part of the year was the girl Diana up to the
first of May, at that time I made an exchange with Mrs. Dillahunty and
took out Diana in the field and sent Rachel a negro woman suckling a
child to the house, another woman having died leaving an infant which
caused the change; she remained there all the time after. When I saw
here which was very seldom she was engaged in waiting on the family,
never saw her otherwise engaged but do not know what she did the balance
of the time, when I did not see her at all. Aggy an old woman and
Clarissa, Aggy was engaged in washing for Mr. Dillahunty’s family, and
milking and spinning, and he does not know who she did spin for, whether
for Mr. Dillahunty’s family or for the use of the plantation, she did
not spin for the plantation to my knowledge. Morris would be worth from
$25 to $30 a year. Diana would have been worth about $30, taking her
value in the place of Rachel. Aggy would have been worth about $15. Does
not know what Clarissa would be worth. Don’t consider the house rent
worth any thing. I suppose that $100 or $200 would cover all the family
supplies that he used from the plantation.

Mr. Benham was down several times during the year, knew that Mr.
Dillahunty family lived there. I do not know whether he was aware that
the above mentioned negroes were waiting upon his family, he never saw
them under my control. I attended to some things which Mr. Dillahunty
suggested.

I was employed by Mr. Benham. I did not serve my time out according to
contract. I was discharged by Mr. Dillahunty. I informed Mr. Benham, who
ratified the act.

Cross Interrogatory

I had attended to the spinning of the field hands, and sent their
produce to Mrs. Dillahunty who attended to having the cloth wove, and
clothes made, she also attended very closely to the sick and Negro children.

Benham did not inform me that Hervey Dillahunty in discharging me had
acted in the matter at his (Benham’s) request. I was discharged about
the first of November, the hands were then engaged in picking cotton. I
attended to them, and they picked the cotton out as clean as an average
lot. I do not think it was so full of trash that it injured its value.

Morris 60 years old, Aggy about 70 years old, Diana between 12 and 14
years old. Clarissa about 40 years old, worth about $25. a year. I saw
Morris cooking, Aggy washing, Clarissa making up beds and Diana waiting
in the house, and had seen Aggy and Clarissa spinning, for what purpose
I do not know. Aggy was too old to be of service in the field, but could
do some little things about a plantation. I would consider Clarissa an
invalid.

Daniel Thompson
Certified by Sterling A M Wood, Commissioner, 28 April 1846

Page 293
Interrogatory - Neil Rowell

I am acquainted with Samuel K Oates the reputed father of the
complainant. I know that said Oates owns some land and several negroes.
I am acquainted with the quality of his lands and would estimate their
value at $8,000.. I am well satisfied from my knowledge of his negroes
that he has at least fifty and he may have many more. I would estimate
his negro property to be worth $20,000 at least. From all I know I
should say that said Oates is not in embarrassed circumstances and also
his property is not within my knowledge encumbered.

I derive my knowledge of the value of Mr. Oates’ property from having
been on his place. Seen the negroes he had about him and from long
acquaintance with the value of his lands. I have no means of knowing
that said Oates in unembarrassed except from general reputation, and
from that I would say that he is not embarrassed.

I was one of the appraisers who appraised the property of the estate of
Samuel Savage decd at the time the defendant Benham took charge of said
estate as Admr de bonis now with the Will annexed of said Samuel Savage.
On that day Samuel K Oates who represented as the agent of the
complainant took and carried away some eight or ten of the negroes
belonging to said estate, there might have been more or less. My
impression is that they were chiefly men and women not very old
principally young. I would say that the complainant held the negroes in
question about one year. They were in the possession of her brother
David C Oates. I understood from neighborhood reputation that the
complainant was interested in the crop raised, or rather had hired them
to her brother David C Oates. I have no definite knowledge of what the
negroes would have hired for, and further this deponent saith not. N Rowell

Page 294
Jno Simpson

I am acquainted with Thomas J Crow and have known him for twenty odd
years. I have no knowledge of the full extent of his property. I know
that he owns some real estate and some negroes. I would suppose he was
worth at least five thousand dollars. I do not think he is in
embarrassed circumstances or that his property is encumbered. I have
lived in the same town with him and done business with him for upwards
of twenty years, and if he were embarrassed ti should doubtless know it.
His property consists in Town Lots and houses and some valuable negroes.
I do not know the number of slaves he owns and further this deponent
saith not and hereunto subscribes his name

John Simpson

Interrogatory
Dr. James W Stewart

I am acquainted with Samuel K Oates the father of complainant Martha E
Savage. I have some general knowledge of the property of said Oates and
know that he owns some valuable lands and several negroes. I would say
that said Oates is worth from forty to fifty thousand dollars, and my
impression is that he is worth more than the last named sum; my
impression is that he is not embarrassed. I judge so from the fact that
he manages his affairs smoothly and without apparent difficulty.

If his property is encumbered in any way I do not know it nor have I
ever heard of it. I presume that if his property was encumbered I should
have heard of it. I live from two to three miles from said estate.

I know said Oates to be worth 40 to 50 thousand dollars from my general
knowledge of his property as stated above consisting in land and
negroes. My means of knowing are my residence within 2 or 3 miles of him
for a number of years, having visited his house, farm and seen his hands
at work, etc..

In the latter part of the year 1842 (as well as I now recollect) I was
at the plantation of Saml Savage decd when the property was appraised to
V M Benham the present Admr de bonis non etc. of said Saml Savage. On
the day of that appraisement Samuel K Oates ordered some 8 of the
negroes belonging to said estate to gear up a waggon and go to the place
formerly owned by H Dillahunty, then occupied by his son David C Oates.
There were three men, two young and likely and the other advanced say of
middle age, two women, one young and the other the wife of the elder of
the men, and two children. I cannot state the age of said negroes my
recollection is that said negroes were held in possession of David C
Oates, brother of complainant about 12 months. I do not know on what
terms he held them. One of the young negro men was sold by the
complainant during the time they were under her control. Said Samuel K
Oates stated that the negroes aforesaid had been set apart, a few days
previous to Mrs. Savage the complainant as her portion, and that he
thought it proper to take them away at that time.
Jas W Stewart

Page 295
Interrogatory of Mrs. Amelia Oates
Franklin County

I am related (to the complainant) and I am her Mother. She was 24 the
13th day of January last.

Interrogatories by defendants.

Declare whether or no a family record has been kept of the time your
children was born, if so declare whether or no. State the exact age of
complainant from the record, and please to give in your deposition an
exact copy of the record of the time said Martha E Savage was born.

Answer
There is a family record kept and the following is a true copy. “Martha
E Oates, daughter was born January 13th 1823.”

Page 296
Final Decree

November Term of Chancery Court in 1848

“This case is submitted upon the bill, answers, demurrers, exhibits and
proof for final decree. The bill is exhibited by Martha E Savage, who
claims to be administratrix of Samuel G Savage decd against the Executor
of Samuel Savage decd who has been removed office - the administrator de
bonis non cum testaments annexed etc. who succeeded to the
administration and also against the legatees and devisees of said Samuel
Savage decd. It suggests a devastavit against George M Savage the
executor and seeks an account both against him and the administrator de
bonis non etc as well as the recovery of a legacy against the latter.
The defendants for multifariousness, and that must be disposed of,
before I can advance further in the case.”

Cites cases - “that if the bill set forth several distinct matters
perfectly unconnected, or the case of each defendant is entirely
distinct and seperate in its subject matter from the other defendants”
then the bill is multifarious.

In the present case, relief is sought against George M Savage executor
for failing to maintain and educate the complainant’s intestate, as
directed by the will of Samuel Savage, as well as for a failure to
divide the proceeds of the crop grown after he was 21 years of age, or
to advance to him, out of the estate of the testator, as the (testator)
had advanced to his other children. It is also sought to charge George M
Savage with large sums of money received by him from the crops grown on
the testator’s plantation after his death and before the removal of the
executor, which it is alledged, were wasted by him and not applied
according to the provisions of the will.
In all this Benham the admr etc. is in no wise implicated, nor with it,
does he seem to have any connection either in law or fact, except so far
as he is charged to have received a portion of the judgment obtained by
Savage the Executor against Dillahunty.

Benham is called on to account for various sums received by him as the
proceeds of the crops raised since his administration commenced, and for
payment of the legacy under the will, with neither of which the removed
executor has even the slightest connection.

The bill also seeks to review and set aside a settlement made by Benham,
as administrator, with the Orphans Court of Lauderdale County with which
the Executor has no possible connection.

The rights, interests and liabilities of the executor, and the
administrator de bonis non etc have no necessary or actual connection
with each other, and the decree to be rendered, if the complainant
should be entitled to recover, could not be joint against them, as
neither is in any manner liable for the maladministration of the
(other?) and this is laid down in the books on equity pleading as one
test of multifariousness.”

(Debated points, said that, as the case would probably be carried up for
review, he would pronounce his opinion upon the remaining points.)

“The next point is order, is the objection taken in Benham’s answer to
the character in which the complainant sues, and is equivalent to the
plea of ne unqueo administrator. ... The proof of Mrs. Oates, the
complainant’s mother, as to the time of her (complainant’s) birth when
compared with the date of the letters of administration, shows that
complainant was only seventeen years old when the letters were issued to
her. An age at which, by the law governing the spiritual courts in
England untill the passage of the Act 38 Geo. 3 Chap 87, 7, persons were
permitted to act as executors. I am not aware however that even by the
liberal rules of those courts, administration was ever committed to a
minor. ... “the statute of distributions in England requires
administrators to give bond, which minors are incapable of doing.” ...
“In addition to all this, an infant, in ordinary cases can neither sue
nor be sued alone. From all this it is evident that an infant cannot
hold the office of administrator in England .... I am not aware that a
different rule exists here, and consequently, such an appointment in
this state can confer on the disabled appointee neither the rights or
powers which appertain to the office which he seemingly holds. Our own
statute upon the subject of granting letters of administration, requires
a bond to be given before such letters can issue. .... and her pretended
appointment is a nullity.

“The proper course in cases in which an infant is nominated executor, or
is first entitled to administration would be, for the court, having
jurisdiction of the estate, to appoint the guardian of such infant, or
some other competent person, administrator durante minore aetate? As the
bond required by our statute is intended to protect the distributees of
the estate from any loss which may arise from the laches? neglect or
wilful mismanagement of the administrator, and as an infant cannot
commit a devastavit, or be made liable for neglect the bond in this case
can afford no such protection.

“It may be said, however that as the objection is not made by plea,
specially setting forth the grounds of objection to the grant of letters
of administration to the Complainant the court should not consider it. ....

“On this point therefore, as on the demurrer this case is in my opinion
with the defendants. After a very careful examination of all the leading
authorities cited on both sides. I am of opinion that the legacy sought
to be recovered by the bill never vested in Samuel G Savage decd, and
consequently no decree would have been pronounced for the complainant
had her case been right in all other respects. By the terms of the 11th
clause of the will by which the legacy is given to Samuel G Savage decd
it is is clear to my mind, that the giving and possession of the legacy
were intended by the testator to take place at one and the same time,
viz upon the death of his wife. ...
The complainant was of full age when this bill was filed as appears by a
comparison of the date of her birth as proven by her mother with the
time of filing it, she must therefore pay costs.

Let the decree be enrolled

It is ordered, adjudged, and decreed, that the defendants’ demurrer to
the Complainant’s bill be sustained, that her bill be dismissed and that
she pay all costs to be taxed by the Register.

D G Ligon, Chancellor

“And the said cause having been taken to the supreme court on Writ of
Error, the foregoing decree of the Chancellor was reversed and said
cause remanded. And afterwards to wit at the May term 1850, of said
Chancery Court, the following decretal? orders were made by the
chancellor to wit.
The supreme court having settled the equities between the parties and
directed the manner in which the account is to be taken in this case
nothing remains for me to do except to carry out the directions of that
court as far as I am capable of understanding them promising that in
directing this account to be taken under the rules herein after laid
down, I am by no means influenced by my own judgment but submitting
mainly to the decision of the supreme court in the case.

Let the following orders be entered

It is ordered that the master take, state and report an account between
the parties on the following principles and under the following directions.

First, He will ascertain the amount, kind and value of the estate of
Samuel Savage decd both real and personal which came to the hands of
George M Savage as executor, with the annual profits of said estate
while under his management, computing interest on any money used by him
for his own purposes, or which remain unappropriated in his hands from
the time such money was used or received.

2nd He will give him credit for all sums he may have paid out to the
debts of the estate, in the management and to the use of the estate and
to the purposes required by the will in supporting, educating and
clothing the younger children therein named and all other expences
necessarily incident to the execution of the will of the testator. He
will allow no commission to the executor.

3 He will also state an account with the defendant Benham as
administrator de bonis non with the will annexed upon the same
principles as a(re) laid down for his government in the case of George M
Savage except that he will allow Benham commissions at the rate of five
per cent for all monies received and two and a half per cent for all
money paid out by him in the course of his administration.

4. Having ascertained the amount and value of the estate in the hands of
George M Savage when his executorship terminated according to the rules
herein before laid down he will deduct from it that portion which
afterwards came to the hands of Benham as administrator de bonis non and
which had been in the hands of George M Savage. If after this deduction
there appears a balance against said Savage, he will proceed to
apportion it between the several legatees under the will in such
portions, and by the clear rules laid down in the Will itself.

5. He will also apportion and divide the estate in the hands of Benham
according to the requirements of the will, ascertaining the value of
each share. To ascertain the value of the slaves he may call before him
such witnesses as he may think proper and in assigning to each legatee
his or her portion of said slaves, he will be careful, as far as
practicable, and consistent with a fair and equal distribution of them,
to allot them by families, not seperating husbands and wives, parents
and children when it can be avoided.

6. If any part of the expences of the support and tuition of Samuel G
Savage incurred before he was 21 years old has been paid by the
Complainant or by her intestate out funds other than those which came
from the estate of the testator, or yet remain unpaid for which the
complainant is liable in her representative capacity such sum or sums
must be allowed her out the general fund before any distribution is made.

7. The portion which on this accounting may be found to be the
distributive share of Wm T T Savage, he will distribute among the
remaining legatees as the will directs.

D G Ligon, Chancellor

And afterwards, on the 19th day of May 1850, the Master made the
following report ..

Page 302

Accounts:

Value of estate when Savage died.

Amount of appraisement of personal property, including 74 slaves on the
11th day February 1838: $36,413.00
Total value: $89,630.61

Net value of the estate at the termination of George M Savage
Executorship: $77,430.61

Amount due from George M Savage to the other distributees: $17,906.67

On the 28th day of November 1842 Vincent M Benham was appointed
administrator de bonis non of the Estate and immediately thereafter took
possession of the plantation and all the personal property left by
George M Savage administrator.

Total amount with which Benham is chargeable: $62,407.53

Cost of this suit was deducted ($340.65)
Funds in the hands of Benham subject to distribution: $11.496.57

It appears that John B Dillahunty died in 1841 leaving one son, Samuel
Savage Dillahunty who is entitled to his mother’s interest in the
estate, and to make his father equal to the older children as provided
by the will, he is entitled by way of advancement to the sum of $1740.
with interest thereon from the 25th day of November 1838.

All the distributees were opposed to selling the “negro property,”
prefering its division in the manner directed in the decree of the
chancellor.

Page 305

There are ___ slaves belonging to the estate which I have divided into
five lots (keeping the families together as far as practicable) with
their value fixed upon them, and allotted them to the distributees as
follows

Lot number one drawn by Martha E Savage admx of Samuel G Savage

Frank $400.
His wife Hannah 200.
Child Ann Eliza 600.
Child George 800.
Child Dinah 600
Child Kerbo 600.
Martha 450.
Bolivar 800.
Carey 800
Lube 800
Patrick 300.
Lawney 100.
Laura 300.
Total: $7050.00

Lot No. 2 drawn by Samuel Savage Dillahunty

Rachel 400.
Child Abe 650.
Child Isaac 600.
Child Sammey 500
Child Bella 450
Child Joe 250
Child Morris 800.
Randal 800
Carter 800
Mariah 450
Minerva 600
Little Jack 800.
Total: $7100.

Lot No 3 drawn by Samuel I, Ann E and Matilda Rucker

Clarissa 450.
Child David 800
Child Moses 800
Child Celia 550
Child Forbes 650
Child Robin 450
Child Clara 250
Levi 300
Ann 200
Washington 800
Peter 500
Andrew 450
Friday 800
Total: $7000.00

Lot No. 4 drawn by Admr of John T Savage

Old Jack 150
Wife Charlotte 300
Jim Duckett 800
Sam - child 600
Adaline 500
Dick (Blacksmith) 900
Billy 800
Betsy - Billy’s wife 700
Infant 100
Charles 800
Simon 700
Ellick 700
Total: $7050.00

Lot No. 5 drawn by Mrs. Behethaland Dillahunty

Henry 800
Eveline 700
Solomon 500
Little Henry 350
Fanny 200
George 200
Phill 700
Shepherd 800
Caroline 650
Eleanor 600
Yancy 600
Edward 300
Jerry 700
Total: $7100.00

The slaves were allotted to the respective distributees as above set
forth, and the account is now respectfully submitted to the Chancellor.
May 19th 1850 S T Thustin, Master in Chancery

Page 307

Long lists of accounts for 1845, 1846 and 1847 for amounts paid to?
various people including:

James Viser, B M Grady, Wm B Wood, W R Garner, E D Townes, Jesse Melton,
R L Bliss, William Thornton, Kirkman and Andrews (for Moses Wood),
Littleberry Underwood, Dr. James W Stewart (J G Johnson) ($100.00), Hugh
Thompson, John Seveir, G Campbell, Old Jack (No voucher), Savages Boys
for fodder (No voucher), Jno Simpson & Co., Thos Dewberry, Peter F
Patrick, John Peters, A Askew, H Dillahunty, Charles McLuskey, Marshall
Clark, Horse sold? Estate, Kirkman and Andrews, for Pork, Thustin and
Kennedy, Jessee Denson, Murphy and Lackey, James Irvine ($500.00),
Kirkman and Andrews, James P Oakley, Edward A O’Neal, D M Thompson,
Bennet Pope, W P Pettus, Simpson McAlester & Co, Peter F Patrick,
Benjamin Paterson, M C Gallaway ($10.00 - Gallaway was editor of a
Florence newspaper), Dr. James W Stewart (G L Johnson) ($400.00),
Benjamin Patterson ($6300.00), Peter F Patrick, Dr James W Stewart,
James Young, Henry Darby, Richard B Baugh, J C Calhoun, G Dunn, Jack
Johnson, D M Thompson, D Littleton, Wm Quillan, Samuel Martin, H
Simpson, W T Hawkins, A H Wood, Benjamin F Karsner, Hugh Thomson, George
W Sneed, W P Pettus, Ira Arnold ($300.00, 9.00, 2.25, 186.00), Benjamin
Patterson (1291.90), Robt Kernachan, Elisha Rhodes, Charles Gookin, Wm B
Wood, Dr. James Stewart, Mrs. B Dillahunty (for Jack Johnson ($50.00,
$100.00), M & J Harkins, Bennet Pope, Joseph Bigger, Thos Darby, John M
Harris, Jack Johnson (200.00), H I Posey, Martin and Cassity, H I Hoge,
Saml T Johnson (570.23), Samuel Bromley, Richard M Beckwith (70.06),
Margaret Brown, Wm Thornton (Duncan Corn Note), John Austin (Austin corn
note - 214.00), Wm Lesle, Thos K Young, Benjamin F Rhodes, Bennett Pope,
V M Benham (61.85), Hansboro, H D Smith (50.00), M Munn, George G
Armistead, S C Posey, Pugh Houston, Saml T Johnson, Charles Gookin, D M
Thompson, Wm Cooper (75.00), Jno Simpson & Co, Wm M McLuskey, Daniel M
Thompson, W P Pettus, Levi Todd, Robert Kernachan, Daniel M Thompson
(119.45, 50.00, 74.96), S C Posey (150.00), S T Thustin, David G Ligon
(50.00), Shadrick Brown, B B Barker, Expenses to Huntsville (Primrose
Case to pay bal. 10.50), H Willett, Aaron Askey, Robt Warren (Jack
Johnsons order), Samuel T Johnson, L T Thustin (65,27), Simpson
McAlester & Co, Jack Johnson, L P Walker, Wm R Garner (20.25), Saml T
Johnson, A Wright (500.00), Jack Johnson, John Wilkinson for corn, M C
Gallaway (21.00), William S Todd, J D Johnson, Wm B Barton, D Gresham,
Rachel Gresham, E Lovelace, S A M Wood, Jack Johnson (Sloss? order -
23.75), Jack Johnson (for Thustin (15.00), Finch Scruggs, Jacob Fifer,
David Gresham, Samuel T Johnson (1118.02), David Gresham, E W Beck, Jack
Johnson (pr S McA & Co - 554.41), James Bromley, Bennett Pope, E D
Townes (150.00), Jack Johnson pr Thustin (for Wightman - 1085.48), Jas
Irvine, bal account - 1/1/1850 - 483.39), D Gresham for corn, E D Townes
(50.00), H J Posey, Moses Wood, J B Lorance, Jack Johnson (for J A Baker
- 192.45), Jack Johnson a/c to Hannay, H J Posey, Jack Johnson (order
Billy Rodgers), Jack Johnson (Hays), Aaron Askew, Jas Irvine (200.00), A
Musselman, John Bedford (G Campbell), John J Ormond (300.00), Finch P
Scruggs (100.00), E A O’Neal order to Patrick (on Austin corn note -
16.00), Jack Johnson (a/c to Faulk - 132.38), Thos Shepherd, Jas S Clark
(10.00), Aaron Askew, John Wightman

August 25, 1847

Commissions for discounting acceptance and interest on a bill of
exchange drawn for the benefit of the estate and to pay the judgment in
the U. S. District Court at Huntsville in favor of Taylor’s Heirs vs the
estate of Savage (524.99 - 1849)

Simpson McAlester & Co, Martin Harkins (Bal on Duncan Corn Note, S C
Posey, Jack Johnson, R Kernachan, W T Hawkins, Jack Johnson note to D
Koger (200.00), Wm McCluskey, Wm B Woods fees for Jack Johnson, Mr.
Brown (difference in horse trade - 10.00), C Gookin, D Gresham, E A
O’Neal, J T and W P Horne? Advertising (8.00), H Dillahunty to pay
expences to Montgomery, Supreme Court 50.25, 12/30/1848), expences in
sending messenger to collect M Oates note (.50), H Dillahunty expenses
to Tuscumbia to take deposition of Townes and others (1.00), Expenses to
get commissioner to take Moses Wood deposition (1.00),

June 30, 1849
H. Dillahunty expenses to Montgomery to attend Supreme Court $40.00 plus
2.94 interest.

April 9, 1850
Paid for corn, etc. provisions for helpless negroes $20.00 plus .17 interest
Paid boy for cutting and setting pork (.75), Simpson McAlester & Co.
acct, F P Scruggs, Dean & Craig, J B Leftwich, Wm B Barton, Patton &
Barker, Bal to credit of this administrator on his annual settlement in
the Orphans Court as per decree of that court (872.69), William B Wood,
Atty, auditing papers and stating Acct (May 20, 1850), Administrators
commissions 5 per cent on $46,008.00 receipts (2304.44), Administrators
commission 2 1/2 per cent on $33,509.94 disbursements (838.99)

Total: $5274.92

Page 312
Credits
Include:

Amts received in 1846 and 1847 from cotton crops in 1845 and 1846
Amts received from Florence Bridge Company
Amts received from George W Foster on his note for land (2935, 500, 250,
550, 50, 37, 100, 50, 50, 50.) January to April, 1848

1848 - Net proceeds of sales of 160 bales cotton sold by King, Hunt &
Walker:
$4175.54

Amt. recd of William Koger advanced by him to meet Bill of Exchange
$2119.15

Note - On the 25th day of August 1847 I drew a Bill of Exchange which
was discounted in Nashville for $6611.45. for the purpose of paying the
Judgt in favor Taylors heirs vs the estate. Said bill was endorsed by
William Koger and Robert Kernachan to meet said Bill the above 192 bales
of cotton were sold and applied, but being insufficient, William Koger
advanced the above sum of $2119.15 to the estate. For the purpose of
reimbursing said Koger I paid him on 5th April 1848 cash recd of John
Simpson & Co. for and on account of G W Foster $1476.57 - 14 Bales of
cotton which were sold and realized $251.22. ...

Jan 1, 1849 For amt of hiring of negroes of sd estate after applying
$100. the hire of Carter to Wm Koger’s cash account from 15 February
1848 to January 1st 1849:
$3049.50

January 1, 1850 For amt of hiring negroes of sd estate from 1 January
1849 to January 1, 1850 $2932.50

1849 For amt of hiring negroes of sd estate from 1 January 1850 to 1 Jan
1851:
$3442.50

Jan 1, 1849 For this amt recd for 4 mules, 3 horses, 1 mare, 14 Carey
ploughs, 5 sweeps, 6 shovels, 14 clevisy?, 14 single trees, 12 pr trace
chains and hames and a set of blacksmiths tools etc (sold to S P Walker
for) $589.00

R B Baugh for iron lot 73.80
B F Rhodes for 4 mules sold him 215.00
David Gresham for: 1 old wagon and 1 yoke of oxen, 35.00, 1 yoke of
oxen, 17.50, 2 beaves, 9.72, 2 cos, 18.00, 2 heifers, 10.00, 2 cows,
11.00, 1 cow and calf, 12.00, 3 head cattle, 10.00

March 1848 Received of George Washington Foster for 1 wagon, 1 cutting
knife, 1 large kettle, 1 lot old tools and irons, entire lot of hogs,
fodder and oats and 335 bushels of corn ($335.) - Total received of GWF:
$492.00, less work done ginning and hauling cotton, 14.42 - $447.60)

Jas P Oakley, 1 yoke oxen, 25.00, 54 sheep, 32.50.

Received of George W Foster, amt of second instalment on land, $4489.35
third installment $4489.35

Jas Letsinger for old saw mill irons 35.00
R Warren for a horse 35.00
H Mussulman for hire of negro girl Eveline 52.50
N Rowell for sale of a mare 65.00

Dec. 20, 1849 Samuel K Oates on settlement of suit in Circuit Court
Franklin County S Savage Estate vs Oates: $2081.17 received

Total receipts: $46,222.18

Page 314

There is a bill of costs due the administrator Benham in case of himself
vs Saml K Oates in Franklin County which is not included in this account
or settlement because he has not yet received it. There is also a suit
pending in Chancery Court in Fayette County in this State for the hire
of Negroes against Martha E Savage. When these two sums shall have been
collected, after paying all expences they are to be divided equally
among all of the present legatees of Saml Savage (George M Excepted).

There is also a suit pending in Lauderdale Chancery Court favor of
Kirkman Abernathy and Hanna vs said Benham as admr of Saml Savage. If a
recovery should be had in this case it is also to be paid out of the two
funds above named if sufficient. If not sufficient, then the same shall
be paid by each one of the present legatees in equal parts to Benham.

Page 315

The Master’s report in this case having been made and now submitted
without exceptions from either party, under these circumstances the
report of the Master must be in all things confirmed. Nothing now
remains but to decree a distribution according to the report, but the
parties in interest will not be allowed to enforce the decree against
George M Savage who is a non resident and has never submitted to the
jurisdiction of this court untill the statutory bond for his indemnity
is executed.

Final Decree

let the following order be entered and decree enrolled.

It is ordered that the Master’s report made in pursuance of the order of
the present term be in all things confirmed.
It is further ordered, adjudged and decreed, that the legatees of Samuel
Savage decd recover of George M Savage late executor of his estate, the
amount following to wit

Hervey Dillahunty and Behethaland his wife, for the use of the said
Behethaland, the sum of three thousand, five hundred and eighty one
dollars and thirty three cents.

Hervey Dillahunty, guardian of Samuel Savage Dillahunty the sum of three
thousand, five hundred and eighty one dollars and thirty three cents.

Samuel J, Ann E and Matilda Rucker, jointly, the sum of $3581.33.

Martha E Savage administratrix of Samuel G Savage deceased the sum od
$3581.33

Hervey Dillahunty administrator of John T savage the like sum of $3581.33.

Before the parties take any benefit under this portion of this decree,
they will severally enter into bond with good security, to be approved
by the Register, and payable to the defendant George M Savage in the sum
of $3600. conditioned as such bonds are required by law to be in cases
of non resident defendants who have not submitted to the jurisdiction of
this Court.
It is further ordered, adjudged and decreed, that the said legatees
recover of Vincent M Benham, the sums following to wit

Hervey Dillahunty admr of John T Savage decd the sum of Four thousand
and forty nine dollars and sixty one cents

Martha E Savage administratrix of Samuel G Savage decd the sum of $4266.21.

Hervey Dillahunty guardian of Samuel Savage Dillahunty the sum of
$3180.69, for which said several sums if not paid, with legal interest
from the date of this decree within sixty days, the said parties may
severally have execution.

It is further ordered adjudged and decreed that on the 25th day of
December next, the said Vincent M Benham shall have in the Town of
Florence the following Negroe slaves belonging to the estate of Samuel
Savage decd, or such part of them as shall then be alive and the
increase untill that time of the females thereof, and distribute them to
the legatees as follows, to wit, to Martha E Savage admx of Saml G
Savage decd he will deliver if living, Frank, Hannah his wife, Ann
Eliza, George Dinah, Kerbo, John, Martha, Bolivar, Harry, Lube, Patrick,
Lawney and Laura, with the increase of the females at that time.

To Hervey Dillahunty as guardian for Samuel Savage Dillahunty, Rachel,
Abe, Isaac, Sawney, Bella, Joe, Morris, Randal, Carter, Mariah, Minerow
and Little Jack.

To Samuel J, Ann E and Matilda Rucker, Clarissa, David, Moses, Celia,
Forbes, Robin, Clara, Lewis, Ann, Washington, Peter, Andrew and Friday

To Hervey Dillahunty admr of John T Savage decd Jack, Charlotte, Jim
Duckett, Sam a child, Adaline, Dick a blacksmith, Billy, Betsy, wife of
Billy and her infant child Charles, Simon and Ellick

To Hervey Dillahunty and Behethaland his wife for the only proper use of
the said Behethaland, Henry, Eveline, Solomon, Little Henry, Fanny,
George, Phill, Shepherd, Caroline, Eleanor, Yancey, Edmund and Jerry.

It is further ordered, adjudged and decreed that Vincent M Benham pay
all costs, out (of) funds of the estate in his hands not otherwise
appropriated by this decree

D G Ligon, Chancellor
Recorded June 17, 1850

Page 318

Kirkman and Rosser vs R M Patton

Be it remembered that heretofore to wit on the 17th day of August 1846
James Kirkman and David Rosser surviving partners of the firm of Kirkman
Rosser and Co. filed their Bill of Complaint in the Chancery Court ..
against Robert M Patton in the words and figures following viz

... Kirkman and Rosser in the month of June 1837 and prior thereto, were
appointed in partnership with one Phillip Burke, doing business in the
City of New Orleans as commission merchants by the firm and style of
Kirkman Rosser and Co; that during the time os said partnership to wit
on the 20th day of June 1837, one Samuel Bromley was largely indebted to
said firm; and to secure the same said Bromley, as principal and James
Bromley and Jonathan Douglass as securities on the day last mentioned
executed to them three promissory notes all bearing that date to be due
and for the amounts as here stated> ($957.50, 1029.76, 1101.92 - also
$870 ...)
After the execution of said notes said Phillip Burke died and the
partnership was dissolved whereby the right of closing the businesses
survived to said James Kirkman and David Rosser.

(Rosser , for a valuable consideration, transferred all his interest in
the assets of the firm to James Kirkman. ... “That on the 20th day of
Sept 1841 the Compl, James Kirkman hearing and believing that said Saml
Bromley was about to run his property from the State of Alabama where he
then resided in the County of Lauderdale in said State, sued out an
attachment before Joseph Bigger a justice of the peace ... founded on
the notes. James Kirkman also sued ...)

Page 319

Your orators further state that Robert M Patton ... on the 18th day of
Sept 1841, procured an attachment from one Thomas Reeder is his said
Patton’s favour against the said Saml Bromley’s estate for the sum of
$1064.01 on the ground, as apparently the attachment that said Saml
Bromley was about to remove his property from the State of Alabama and
had the said attachment levied on the same property of said Saml
Bromley’s, upon which your orators attachments were levied, and except
on the slaves named Dan, Matilda, Alex and Job. ... Others also made
attachments on the same day: Kirkman and Andrews, James Bromley for the
use of John Simpson and Co., James Fassett and Winston P Pettus - on the
same property. ...

Page 320
... And the said Robert M Patton came in for a division of the proceeds
as if his said attachment was correctly and legally sued out, taking
priority of your orators as to all the property so levied on and sold
except the negroes Dan, Matilda, Alex and Job, which went to pay in part
your orators ... proceeds of which only amounted to $1557.50. Whereas
your orators insist that they ought to have priority over said Robert M
Patton ... because making the affidavit after suing out the attachment
and antidating the same was a fraud upon the rights of your orators;
when if the facts had been correctly set forth your orators would have
come in before said Patton on the fund arising from the sale of the
property levied on as aforesaid.
(They wanted the money from the sales - $2138 - to be made first subject
to the payment of the money due them.)

James Irvine for Complainant

Page 122 (Page numbers go from 321 to 122 - should be 322)

“Levied this attachment on the following property viz 4 negro slaves,
namely Sam, Tina, George and Uncus, one ox waggon, also the following
tracts of land to wit
the west 1/2 of the SW/4 of S16 T R2 West - 79.63 acres (should be T2 R13)
a fraction of the NW/4 of S16 T R2 W containing 49.63 acres (should be
T2 R13)
also the NE/4 of the NE/2 of S20 T2 R13 containing 39.85 acres
SW/4 of NE/2 S20 T2 R13 containing 39.85 acres
Also one cotton gin and running gear, one bay mule, one brown mule, one
bay mare, one levithan colt, 3 yoke of oxen, also Sam Bromley’s interest
in the Stallion Exile, all levied on as the property of Saml Bromley
20 Sept. 1841
V M Benham, Sheriff, By his deputy W Harvell.


Page 124 (should be 324)
An attachment was also levied on about 30 acres of cotton and about 40
acres of corn as the property of said Bromly - 1 October 1841 - V M
Benham, Sheriff, by his deputy W Harvell.

Page 125 (325)

... “and oath having also been made that said Samuel Bromley absconds,
so that the ordinary process of law cannot be served upon him ....”

J W McClung, Solicitor for Respondent

Page 126 (326)

Demurrer to the bill

1. A Want of equity
2. Complainant has no right to inquire into the fraud alledged to have
been practiced in making the affidavit and bond by which the defence, in
the case of the defendant vs Bromley in the court of law was defeated
and the complainant defrauded of his lien by attachment
3. The other attaching creditors should have been made parties.

Demurrer Overruled D G Ligon, Chancellor

Page 128 (328)
Separate answer of Robert M Patton
... respondent states that it is not true as is alledged in said Bill,
that at the time of suing out his (respondents) attachment he made no
affidavit and gave no bond. ...
Respondent further admits that he has received on his said judgment of
$1167.75 rendered in April 1842 the sum of $588 which he received on the
day of the sales of said property. ...
Further answering respondent states that the complainants at the time of
suing out the attachments and at the time of the sale under them, were
non residents living in the city of New Orleans in the state of
Louisianna. That at the time of said sale they were not present but that
Thomas Kirkman was their agent and as such purchased the land ___ and a
negro man named ___ at ___ amounting in all to the sum of ___ for which
he did not then pay, nor has he yet paid.
To further answer respondent states, that after said sale to wit in
October 1845 the said Thomas Kirkman as agent for complainants, and
respondent, being desirous of adjusting the matters now in controversy
between without going to law, agreed to submit the matter to James
Irvine Esq now the attorney for complainants who accordingly on the 14th
Oct 1845 rendered a statement in writing of that date under his hand in
which he reports that “under the compromise of R M Patton and Thomas
Kirkman agent for James Kirkman, the division will stand as follows
R M Patton will get of the levy of the 18th Sept $863.31
Of the Levy of the 20th he gets only $23.01
Total: $886.32 ...

Walkers, Solicitors for Respondent

Page 131 (331)

... In all which particulars the sd answer is imperfect insufficient and
evasive - asked that defendant be compelled to put in a further and
sufficient answer ...
James Irvine, Solicitor for Complainant

Filed November 13th 1848
At Special term of said court in November 1846 this cause was continued
and also the May term of 1847 said cause was continued, and afterwards,
to wit, at the May term 1848 the following order was made.
... demurrer be overuled at the cost of the defendant to be taxed by the
Register.
D G Ligon, Chancellor

November Term 1848
... exceptions were submitted to the chancellor

May Term 1849
Case was continued

May Term 1850
“Came the complainants by their solicitors and suggested the death of
James Kirkman one of the complainants, and on motion and it appearing to
the court that Thomas Kirkman had been duly appointed administrator of
the said James, It is ordered by the court that said cause be revived in
the name of Thomas Kirkman administrator of James Kirkman, and that the
same be set for hearing at the present term.

May Term 1850
In this case a decree was rendered by the chancellor dismissing the bill
at complainants cost.

... Amended answer of Robert M Patton. Can’t remember some things.
Denies that he made no affidavit at the time of the suing out of the
attachment.
Walkers, Solicitors for Respondent

Page 133 (333)

Thomas Kirkman
Answer to Interrogatory

“I am acquainted with the parties to this suit. Kirkman and Rosser
resided in New Orleans when they carried on business. James Kirkman of
that firm resided there at the time of the filing said Bill and Robert M
Patton at the same time resided in Lauderdale County Alabama, and David
Rosser resided in Nashville Tennessee.

Page 142 (should be 342)

Kirkman and Rosser vs Robert M Patton

This case is submitted on the bill answers and proof for final decree.
The equity of the bill consists in the allegation that the complainants
were cheated of the collection of their debts, and their ?dence of lien
on the property of Bromlay by the fraudulent conduct of the defendent of
which they could not have availed themselves at law.
I do not conceive that the proof sustains the allegations. There was an
aparent irregularity in issuing the attachment without oath in writing,
but this is more chargeable upon the justice of the peace, than on the
defendant. But the proof does not justify me in concluding that any
wrong to others as fraud on the Complainant was intended.
Again, I see nothing that would prevented the complainant or Bromley
from having used the proof of the justice on the trial of their plea in
abatement at law? or which hindered them from discovering that proof by
the exercise of common diligence in time? for the trial of that plea at law.
My conclusion is, that the complainants cannot under the circumstances
disclosed by the proof, be relieved in this court.
The Register will unroll the following decree. It is ordered, adjudged
and decreed, that the complainants bill be dismissed at their cost to be
taxed by the Register.
D G Ligon, Chancellor

Page 144 (There is also a Page 144 earlier in the book - Pope’s suit)

Overton Kennedy et als vs Hardy Hightower et als

Be it remembered that heretofore to wit on the 14th day of January in
the year of our Lord 1846, Overton Kennedy et als, filed their Bill of
Complaint in the Chancery Court for the 28th Chancery District of the
Northern Division of the state of Alabama against Hardy Hightower et als ...

... Early in the year 1826 Thos H Alsup, a resident citizen of the
county of Lauderdale ... departed this life intestate. His daughter
Orlena S was married to Overton Kennedy. The Kennedys, as well as
Margaret Alsup (the widow) and her daughter Margaret Alsup, a minor,
lived in Lincoln County, Tennessee.

O’Neal and Moore, Solicitors for Complainants.

Subpoenas issued for Hardy Hightower and John Simpson

Page 151
Hardy Hightower was the administrator of the estate of Thomas H Alsup.

Page 160
Coalter and Irvine were among the claimants against the estate of Thomas
H Alsup, dec’d. (For $35.00)

Page 164
“George Coalter in offsets in his and Irvine’s claims” - paid $93.62 in
1830 to estate. George Coalter paid $3.62 1/2 at the sale.
Page 165
Coalter and Coalter and Irvine’s account: $180.00

Page 202
Abner Rose: $46.81. Settled for by Coalter one of the Securities and
accounted for in settlement in 1830.

Page 234

Randolph and Daniel Allsup and Hardy Hightower Admrs of Thomas H Alsup
deceased vs David C Cowan and Ephraim S Allsup Exrs of Robt R Alsup decd

“Be it remembered that on the 24 day of September 1829 the following
bill was filed in the office of the clerk and master of the circuit
court for the county of Lincoln in the state of Tennessee setting in Equity.

...That having obtained letters of administration upon the Estate of the
said Thos H in the State of Alabama in Lauderdale County an order was
made by the Orphans Court of that County agreeably to the laws of that
state at the January term thereof in the year 1828, the following
negroes belonging to said Estate, viz, Laban, Sam, Dick, Milly, Sally,
Tom and Caroline be sold giving forty days notice of said sale in the
Florence Gazette etc. agreeably to which your orators about 15 April
1828 after giving the notice directed by said order, provided to sell
said negros at public auction on a credit of six, twelve, and eighteen
months, it being a condition of such sale that the purchaser should give
bond with approved Security for the purchase money. That at the sale the
slave called Dick, a very likely negro man then about 21 years old was
struck off to Robert A Allsup at the sum of $601.00 he being the highest
bidder and having bid the same for him at said sale.

It being nearly night when the sale of said estate was completed the
said Robert R wished the notes to be prepared and also the Bill of Sale
and wished them sent up by your orator Randolph in Lincoln County (said
Randolph and said deft being brothers and neighbors residing in Lincoln
County aforesaid when he said he would give security it being more
convenient as he alledged to give security in the neighbourhood where he
resided than at the place of said sale, presuming that there would be no
difficulty in the matter and that no fraud was intended said Robt was
suffered to take said slave along with him and the said Randolph waited
to finish the business of the sale, prepare notes to be executed, Bills
of sale, etc and amongst others the notes were drawn agreeably to the
terms of said sale, to be executed by the said Robt R and his securities
and the Bill of Sale was also prepared to be delivered to the said
Robert R on his complying with the terms of said sale the notes were
accordingly delivered by the said Randolph to the said Robert to be
executed and for him to obtain security which he promised to secure as
your other orators are informed and believe, and as your orator Randolph
states but the said Robert R. after postponing the matter from time to
time some times under one pretext and some times under another has
finally refused to give said note with security as aforesaid and has
from the day of said sale and now retains said slave in his possession
in the County of Lincoln.”

Hire of the slave for 1828 would have been about $100.00, and about
$80.00 for 1829. Robert R would neither pay the hire nor give his note.
They were afraid that he would shortly be wholly insolvent and that he
would run away with the slave, leaving them personally liable or
responsible. They wanted Robert to “be required and restrained from
running said slave from this county or in any manner from concealing
him, or in any manner from parting with possession him except as
aforesaid so that said slave may be forth coming to answer the decree of
the court in the premises.”

Page 239

Allsups owned land on Bradshaws Creek in Lincoln County, TN
...bid off said slave to indemnify himself as fair (far?) as he would
go, in the event the land should not be saved and with no other design
or interest and respondent was willing and did offer to give respondents
a lien on the land described in exhibit “A” for the price of said slave
and at one time thought that said terms were to be accepted by the
complainants or satisfactory but complts changed their minds ....” “deny
most positively that he ever threatened or intended to run said slave or
conceal him from complainants ...
R R Allsup, March 23, 1830

Go to Chancery Court Record Bk F - page 5
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