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1849 - 1852

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]

Lauderdale County Chancery Court Records “F”


Baugh, R B et als vs James Martin et al 317-342
Dillahunty, Wm C vs James Noel et al 28-63
Dillahunty, Sarah vs Nathan Boddie 65-97
Harkins, Martin et al vs Willis Pope et al 133-212
Jackson, Sarah Exr et al vs Sarah M Polk 98-115
Jackson, Sarah Exr et al vs A D Hunt et al 116-132
Kennedy, Overton et als vs Hardy Hightower et als 144-
Noel, James vs John T Abernathy 11-28
Savage, Martha E admr vs V M Benham, admr 213-316
Thurstin L T vs John B Boggs 1-10
     Those involved:
     Luther T Thurstin, John B Boggs,
     Henry A Bragg, Frances A Bragg,
     William D Bassett, George G Armistead,
     Robert M Patton
(Page numbering error -- Following Page 342 is Page 318)
Kirkman & Rosser vs R M Patton 318-343
Overton Kennedy et als vs Hardy Hightower et als 144-392
Thos Kirkman vs Martha Andrews et als 393-425

Page 1

Luther T Thustin vs John B Boggs

“Be it remembered that heretofore to wit, on 1st day of March 1849 L T
Thustin filed his bill of complaint in the Chancery Court ... against
John B Boggs ...

Original Bill

Your Orator Luther T Thustin on the 9th day of July 1844 one Henry A
Bragg and his wife Frances A Bragg executed a certain deed in trust to
one William D Bassett as Trustee for the benefit of George G Armistead
and Robert M Patton, conveying among other property Lot No. 347 in
Florence containing 8 1/3 acres. William D Bassett being desirous to
resign his said Trust ... he, on the 11th April 1845, executed a deed
substituting your Orator (Thurstin) in his stead as Trustee - signed and
acknowledged by everyone.

On 5 December 1845 he sold Lot 347 at a private sale , with the advice
and direction of Patton and Armistead. The lot, and the improvements
thereon were sold to John B Boggs for $1200.00. He took his bill payable
in New Orleans for $500.00 (drawn upon and accepted by James Irvine),
and Boggs’ two notes, each for $350.00 dated 5 December 1845 bearing
interest from date and payable , the first on 1 June 1847, and the
second on 1 June 1848. He gave Boggs a bond conditional to make unto him
title to said lot when the purchase money therefor should be fully paid.
Boggs failed to pay first note and interest at maturity and on the first
day of November 1847 he drew a Bill of Exchange, at five months in favor
of Robert M Patton on Messrs Goring??, Mason and Caruthers New Orleans
for $442.36 and and thereby lifted said first note, which said draft was
duly protested for non acceptance in New Orleans....

“Your orator therefore charges that the entire amount of said judgment
is due him as trustee ... as purchase money for said lot No. 347 ...
that the said Boggs as appears from said Sheriffs return is insolvent,
so that your orator’s only remedy is to enforce his equitable lien on
said lot for the payment of said purchase money. Asked that the lot be
sold for the payment of the purchase money.
Jno S Kennedy, Sol for Complt

Page 3

Copy of the first deed, H A Bragg to W D Bassett

Bragg to Armistead

This Indenture made and entered into on this the 9th day of July 1844
between Henry A Bragg and Frances A Bragg his wife of the first part and
Wm D Bassett of the second part, George G Armistead and Robert M Patton
of the third part.... George and Robert were the securities of Henry A
Bragg in a note made by Henry dated March 5, 1844 payable at the Branch
of the Bank of the state of Alabama at Decatur six months after date for
the sum of $508.42. - also another note for $2165.. George and Willis
Pope are the accommodation endorsers of a Bill of Exchange drawn by the
said on Kirkman and Abernathy dated October 5, 1843 and payable six
months after date for the sum of $1500. ..... other bills and other
holders .....................

Lot No. 347 given as security to Bassett containing 8 1/3 acres and on
which the party of the first part (Bragg?) now resides. Also the north
half of the north half of Lot Number 11, being 33 feet front on Court
Street and running back 56 feet with all tenements and appurtenances.
Also 10 shares of stock in the Florence Bridge Company and certain
household furniture viz.

One mahogany sideboard
Two dozen chairs
Three bureaus
Four beds
Three mattresses
Two Settees
One wardrobe
One sofa
Two carpets
Four bedsteads
One crib
One set dining tables
One set of china
One work stand
Sundry kitchen utensils ... in the use of the party of the first part.
One water cart
Three yoke of oxen
One horse
One ox waggon
One dray

“The said Henry doth hereby assign to the party of the second part
certain promissory notes executed to him by Elijah G Chandler dated July
3, 1844 ... each for the sum of $965. .. and the third note for $970. ...

upon the express condition that the party of the first part shall be
permitted to have the use and possession of all the property hereby
conveyed, except the said notes of the said Chandler until the said
Henry shall make default in the paying of said debts or any of them
according to the terms of this indenture. ...
Signed by: H A Bragg, F A Bragg, W D Bassett, G G Armistead, R M Patton
Copy from original deed in Book A No. 11, Pages 204, 5 and 6

Exhibit B

Whereas, Henry A Bragg and Frances his wife, of the Town of Florence and
State of Alabama did by deed bearing date the ninth day of July 1844
convey to William D Bassett, certain real and personal estate in trust
for the payment of certain debts therein enumerated. To which deed Robt
M Patton and George G Armistead are parties and are sureties for the
payment of most of the debts thus provided for, and whereas the said
William D Bassett wishes to resign the trust conferred upon him by said
deed and the other two parties have agreed that the said Wm D Bassett
and the said Henry A Bragg shall unite in a deed of conveyance of all
the property real and personal contained in said Deed, first mentioned
to Luther T Thurstin of said Town of Florence, with full power to
execute the trust according to the terms and conditions, and for the
purposes expressed in said deed, subject however to the alteration
herein expressed and directed. This Indenture made and entered into this
11th day of April 1845 by and between the said William D Bassett and
Henry A Bragg of the first part and the said Luther T Thustin of the
second part, and the said Robt M Patton and G G Armistead of the third
part ....
....Luther T Thustin shall when requested by Patton and Armistead
proceed to sell the real estate described ... apply the proceeds when
collected to the payment of said debts. Money, when collected from
Chandler, to be applied to the debt to the Branch Bank at Decatur. ...

Page 7

John B Boggs being justly indebted to Luther T Thurstin for $470.00 ,
etc. -total of $970.00
15 July 1848

“To any Sheriff of the state of Alabama Greeting. We command you that of
the goods and chattles, lands and tenements of John B Boggs late of your
county, you cause to be made the sum of _____ debt also, the sum of
$970.00 ... damages, with interest thereon from the 24th day of July
1848. Together with the sum of $6.18 which Luther T Thustin late at the
July term 1848 of our County Court recovered against the said John B
Boggs for his debt, damages and costs ....
30 January 1849

Page 8

V M Benham, Sheriff: “No property found in my county subject to
execution to satisfy this fifa (writ of Fieri Facias) nor any part
thereof. March 1, 1849.”

Boggs’ answer: ... Admits that he purchased Lot No. 347 and the
improvements thereon of said complainant ... Admits that the entire
amount of said judgment is still due complainant as Trustee for the
purchase money of said Lot No. 347. Admits he has no property liable to
said Execution.

Exhibit R - Title Bond - 5 December 1845

“... deed in trust executed by Henry A Brag on 11 April 1845 and in
accordance with the terms of said deed and by the direction of the said
Armistead and Patton, hath this day sold the said John B Boggs Lot No.
347 ... for $1200.00 - future payment.

Page 10
May Term 1848

Final Decree

“This bill is filed to enforce the vendor’s lien for the unpaid purchase
money of real estate, its allegations so far as they are material to the
relief sought, are admitted by the answer. It is necessary, however,
that a reference be made to ascertain the same deed, and as the master
of the Court is the Complainant in the case, a special commissioner must
be appointed to take and state the account between the parties. ... It
is ordered that Hervey Dillahunty be appointed special Master to take
and state an account between the parties, and that he report his
proceedings under this order at the present term of this court.
...Unless ... the defendants pay to the complainant the sum reported he
be due him within twenty days from the rising of this court, with legal
interest thereon from the date of such report to the time of such
payment, that he be barred and forever foreclosed from all equity of
redemption in and to the land and premises described in this bill and
that Vincent M Benham, who is hereby appointed commissioner for that
purpose, proceed to sell the same at the Court House door in ...
Florence at public outcry for cash .... After first paying costs out of
money, to pay complainant the sum reported to be due him with legal
interest thereon from the taking of the account to the time of such
sale.. After sale being made and perfected, Benham shall make to the
purchaser a good and sufficient deed for the land and premises.

Page 11

James Noel vs John T Abernathy et al

Be it remembered that ... on the 16th day of February 1846 James Noel
filed his bill of complaint in the Chancery Court ... against John T
Abernathy, James J Hanna, James Kirkman and William C Dillahunty,
defendants in said cause.

Original Bill

Your orator James Noel on or about the 19th day of September 1841 became
the security of one Thomas W Lassiter to the Branch of the Bank of the
State of Alabama at Decatur for $2741.88. Hervey Dillahunty also became
a co. security for said debt, and to secure the same a note was then
executed for said sum of money made payable to said Br. Bank to fall due
the 22nd day of March. Lassiter promised to secure him in the premises
so that he should be fully indemnified in case of said Lassiter’s
failure, being at the time embarrassed, and in pursuance of that promise
on the 18th day of December 1841, he executed a deed of trust to one
William C Dillahunty... since then he has abandoned the state and is now
a non resident. By said deed of trust the said Lassiter recited that
your Orator had become security for him as above mentioned and for the
sum aforesaid and being desirous to secure your Orator, and in
consideration thereof and for the further consideration of five dollars
paid by the said William Dillahunty to said Lassiter the said Lassiter
bargained and sold, .. and conveyed by said deed of trust to said
William Dillahunty his executors admrs, etc. the following named negroe
slaves and their increase viz: Levi, aged about 34 years, Daniel, aged
about 21 years, Robin, aged about 31 years, Mac aged about 19 years,
Felix, aged about 16 years, Willis, aged about 16 years, Anarcy? aged
about 25 years, Charaty, aged about 25 years, Chancy, about 30 years. To
Have and to hold said slaves to said William C Dillahunty and their
future increase upon trust. Thos Lassiter to retain possession of slaves
until default in payment should be made of said debt either in the whole
or in part. --- then sell slaves

Page 16
Exhibit “C”
... Thos M Lassiter hath and doth hereby grant, bargain, sell and convey
to the said William C Dillahunty .. the following, to wit: Negro slaves
all in the possession of said Lassiter now in Tuscumbia, Alabama to wit,
Grace a woman about 35 years old, Charity about 28 and her infant boy a
child at the breast, Anabee? a woman about 26, Kate about 22, Cloe?
about 23, Ann about 13, Araminta about 11, Major about 9, Haywood about
7, Alfred about 6, Andrew about 4 and Susan and Eliza each about 1 year
old, also Hanna an infant (motherless), also Levi about 30, Andrew about
25, Robin about 28, Felix about 16, Daniel 28, Mack 18, Jesse 18, and
Willis about 15 years old, also the estate in remainder in Bassetts
about 20, the estate in remainder after the death of Mrs. Sarah
Dillahunty, also the following horses to wit: ....

Page 27
Masters Report
James Noel vs Jno T Abernathy et al

The decree in this cause pronounced at the present term of this court
directs me to ascertain and report to the chancellor the sum bid by the
defendant Jno. T Abernathy for the slave Levi, with legal interest
thereon .... $611.95 -
S T Thustin, Master

Lauderdale County Chancery Court Records “F” 1849-52

Page 28

William C Dillahunty vs James Noel et al

Be it remembered that heretofore to wit on the eleventh day of Sept
1843, William C Dillahunty filed his bill of complaint in the Chancery
Court ... against James Noel, Kirkman, Abernathy and Hanna, Samuel W
Probasco, Thos U Lassiter and the Branch of the Bank of the State of
Alabama at Decatur, defendants in said case...
Dispute over slaves and property described in previous case.

Page 64
Master’s Report

Funds to be distributed were about $2667.39. These funds were divided
between: Kirkman, Abernathy and Hanna, Hardy Hightower, Adm of S W
Probasco, and James Noel May 11, 1849

Page 65

Sarah Dillahunty vs Nathan Boddie

Be it remembered that on the 14th September 1846 Sarah Dillahunty filed
her bill of complaint against Nathan Boddie.

Original Bill

The bill of complaint of Sarah Dillahunty who is a citizen of Maury
County in the State of Tennessee. ... On the 7th day of January 1827 one
Thomas Dillahunty whose last place of residence was Lawrence County in
the state of Alabama, made and published his last will and testament ...
in the month of August 1828 the said Thomas Dillahunty departed this
life, without having revoked or altered his said will in relation to the
legacies thereby given to your Oratrix, and that on the 22nd day of
October 1828 said will was duly proven .. and was admitted to record in
the county court of said Lawrence County. Hervey Dillahunty and John B
Dillahunty two of the executors therein named, duly qualified and took
upon themselves the execution of the duties imposed upon them by the
terms of said will.

Your Oratrix further shows that she is the widow of said Testator, and
that in the second item of his said will among other devises and
bequests made to her he says “I also lend to my wife three negroes, male
or female, as she may choose and also a negro girl named Roset, to be,
and abide to her use during her natural life ... She further shows, that
shortly after the death of said Thomas Dillahunty, the said Hervey and
John B Dillahunty executors of the will of the said Thomas, settled up
the estate of said Testator and assented to the devises and bequests in
said Will and about the month of January 1829 delivered all of the
property bequeathed by said Testator to your Oratrix into her
possession, and that she continued in the possession of said girl Roset,
from the month of January 1829 until some time in the year 1842 when one
Thomas U Lassiter, with whom your Oratrix had been living for several
years previous to that time removed from Lauderdale County in the state
of Alabama to the Town of Tuscumbia in Franklin County in said state,
and there wrongfully, and not only without the consent but against the
express commands of your Oratrix, carried said girl Roset to the Town of
Tuscumbia, where he detained her a few months to wit from about the
month of ____ in the year 1842 untill about the first of September in
said year, at or about which time your Oratrix recovered the possession
of said girl Roset and continued therein untill about the month of July
1844, when she hired her for the term of one year to one Nathan Boddie
and at the end of said term she again hired said girl Roset to said
Nathan Boddie for another term ending on the 31st day of July 1846.

Your Oratrix further shows that before the end of said last mentioned
term for which she had hired said negro girl Roset to the said Nathan
Boddie, she came to the determination to hire her no more, and so
informed him, in an interview which she had with him, a few days before
said term expired. This interview between your Oratrix and the said
Nathan Boddie took place as she believes and states, on Wednesday the
29th day of July 1846, and the said Boddie then agreed and faithfully
promised that on the next succeeding Monday, he would send the said
negro girl Roset together with her children to the house of one David
Gresham, who is a citizen of said Lauderdale County, and who is married
to one of the daughters of your Oratrix, and to which place she desired
to have said negroes carried and where she intended them to remain, but
the said Boddie failed to send said negroes according to his promise.

Your Oratrix further states that the negro girl Roset and her children
are family negroes - that your Oratrix raised the mother of Roset, as
well as herself, from an infant, and that chiefly with her own hand, and
pretty much in her own household, and among her own children, and that
she has a strong affection for and attachment towards the said girl
Roset and her children, growing as well out of the circumstances above
stated, as from the dutiful obedience of the said Roset to your Oratrix,
and the further fact that your Oratrix regards her in the light of a
gift, or loan, more sacred, than if she claimed her by purchase, or even
by descent, so that your Oratrix, in fact says that damages in money
will not be an adequate compensation for them, and she further states
that she has good reason to believe and does believe that it is the
intention of the said Nathan Boddie to run, or remove the said negro
girl Roset and her children beyond the limits of the state of Alabama,
and to sell, or secrete, or so otherwise to dispose of said negroes, as
that you Oratrix will lose them,, and that your Oratrix is apprehensive
and really fears, that unless the said Nathan Boddie is required to give
good and sufficient security to have the said negro girl Roset and her
children forthcoming at the termination of this suit, that she will
entirely lose them.

Your Oratrix has called on said Nathan Boddie, at his residence since
the time for which he hired said negroes had fully expired, and demanded
the said negro girl Roset and her children to wit Susan, Harriett, and
Charles, but he disregarded her demands and absolutely refused to
deliver said negroes into her possession. And your Oratrix being quite
old, and much averse to getting into litigation with the said Nathan
Boddie and desiring nothing at his hands, but what she conceives to be
her indisputable right, hath since she demanded her said negroes from
the said Nathan Boddie, as above stated, procured the kind offices of a
friend, who in her behalf applied to him to restore her negroes to her,
as in Justice and equity he ought to have done, but he still refuses to
return them to your Oratrix.

But now so it is may it please, Your Honor, that the said Nathan Boddie
to color? his refusal to comply with your Oratrix most reasonable and
just demand gives out and pretends, that in the year 1842, and when in
the possession of the said negro girl Roset, the said Thomas U Lassiter
who is married to Harriet Thomas, the youngest daughter of your Oratrix,
made and executed a certain deed of trust to one William C Dillahunty,
whereby he conveyed the said negro girl Roset to the said William C
Dillahunty, for the purpose of securing the payment of debts then due,
and owing by the said Thomas U Lassiter to certain persons in said deed
mentioned, and that in pendance? of said trust deed, the said William C
Dillahunty, on the 30th day of August 1842, sold said negro girl Roset,
and that one Thomas Kirkman bought her at said sale, and hath since that
time sold her and her children above named to the said Nathan Boddie,
whereas your Oratrix charges that the said Nathan Boddie well knows that
the said Thomas U Lassiter never was rightfully in possession of the
said negro girl Roset and knows that when he carried her to the town of
Tuscumbia as herein before stated, he done so arbitrarily, and without
the leave or consent of your Oratrix, and finally, your Oratrix charges
that said Nathan Boddie well knows, and has known ever since the
pretended sale of the said girl Roset to the said Thomas Kirkman on the
30th day of August 1842, that the life estate of your Oratrix in the
said girl Roset was reserved, and excepted in said sale.

All of which actings doings pretenses and refusals on the part of the
said Nathan Boddie are contrary to equity and good conscience, and tend
to the manifest wrong and injury of your Oratrix in the premises.

In consideration whereof and for as much as your Oratrix can only have
adequate relief in a court of equity where matters of this nature are
properly quizable and ulivable?. To this end she prays that the said
Nathan Boddie, who is a citizen of said Lauderdale County, may be made
party defendant to this bill, and that he may upon his corporal oath, to
the best and utmost of his knowledge, remembrance, information and
belief, full, direct and perfect answer make to all and singular the
matters aforesaid, and that as fully and particularly as if the same
were here repeated, and he distinctly interrogated, thereto, and more
especially, that he may answer and set forth whether he hired said negro
girl Roset from you Oratrix, at the times, and for the terms herein stated?

Whether he promised to deliver said girl Roset and her children to your
Oratrix at the time and place herein mentioned and whether he did
deliver them according to his promise, and if he did not, why not?

Whether since the term for which he hired said girl has fully expired,
your Oratrix called upon him at his residence, and demanded her negroes
now in his possession and whether or not he refused to restore them to her?

Whether since the demand made by your Oratrix any other person has
applied to him on her behalf and urged him to restore her negroes to
her, and if so when was such application made and if made more than once
state how often, and where?

And your Oratrix prays that said defendant may be restrained by the
order of your Honor from removing the said negro girl Roset and her
children, or either or any of them, out of the jurisdiction of this
Honorable Court, and that writs of attachment may issue to the sheriff
of Lauderdale County in the state of Alabama commanding him to seize and
take into his custody the said negroes Roset, Susan, Harriet and Charles
and that he retain and hold them untill the defendant give good and
sufficient security not to remove said negroes beyond the jurisdiction
of this court and to have them forth coming to answer the order and
decree of Your Honor in the premises. And that upon the final hearing of
this cause the said Nathan Boddie may be compelled by the decree of this
Honorable Court to deliver up to your Oratrix the said negro girl Roset
and her children herein above named, with any other or others she may
have at the time such decree is rendered, and to pay a reasonable hire
for said negroes for the time he unjustly detains them. And that your
Oratrix may have such other and further relief as to your Honor shall
seem meet, and the nature and circumstances of this case may require,
and that a subpoena may issue, etc. and your Oratrix will ever pray, etc..

Hervey Dillahunty, Solicitor for Plaintiff

Page 68
Luther T Thustin, Register of the Chancery Court of Lauderdale County,
stated that Sarah Dillahunty made oath to the statements in the
foregoing bill on 14 September 1846

The Register of the 28th district of the Northern Chancery Division will
issue a writ of attachment according to the prayer of the foregoing
bill, upon the complainants entering into bond with sufficient security,
conditioned that she will pay all such costs and damages as the
defendant may sustain by the wrongful suing out of said attachment, said
bond to be taken in the sum of five hundred dollars. He will in said
attachment require the sheriff to take charge of the slaves named in
said bill, and keep them untill the defendant give good bond and
security in the sum of fifteen hundred dollars, conditioned to have the
said slaves ready to abide the final order and decree to be made in this
cause. If defendant fail in five days to give such bond, the complt may
give it and receive said slaves. He will also issue a writ of injunction
enjoining and restraining said defendant from removing said slaves out
of the jurisdiction of this court.
D G Ligon, Chancellor

Subpoena for Nathan Boddie - 28 September 1846 - Issued by Thustin, Register

Page 69
Attachment issued to take the said negro slaves and hold the same
subject to the decision of the court (Roset, Susan, Harriet and Charles)

Page 69
Will of Thomas Dillahunty

In the name of God amen. I Thomas Dillahunty of the state of Alabama,
and Lawrence County being near sixty one years old and thro’ the mercy
of God in health and sound mind do make this my last will and testament,
as follows

1st I give my soul to God who gave it, and my sinful body to the grave,
till the morning of the Resurrection, when I hope to arise to glory
thro’ the merits and righteousness of Jesus Christ my Lord.

2nd I lend unto my beloved wife Sarah during her natural life the
following property (viz) one third of my land and farm house garden and
water, and one third of all my stock, of every discription with my
wagon, one third of all my household goods and tools every discription,
and one third of all the corn and meal and other provisions that may be
on hand at my death, with one set of silver spoons. I also lend to my
wife three negroes, male or female as she may choose, and also a negro
girl named Roset, to be and abide to her use during her natural life,
and further my will is that the present crop of cotton, one third of
which belongs to Hervey of right (my two thirds) one half of which, I
give to my wife and Harriet Thomas my daughter, and the other half to my
son, John Bunyan, to them and their heirs forever ... As I have in my
lifetime given to my deceased children (viz) Lewis and Elizabeth and
Susan a part of all my property and now confirm it to their heirs
forever, as their full share of my estate.

Item The two quarter sections of land I live on, I give unto my two sons
Hervey and John B reserving my wife’s dower in it containing three
hundred and twenty acres and that they my sons Hervey and John B have
power and authority from me and with the consent of their mother to
cultivate and enjoy the said track of land jointly between them, and
their mother and her hands and they my sons Hervey and John B further
have my leave and authority jointly to sell and dispose of said farm and
make a good and lawful deed to the purchaser for the same and as there
may be a small balance due to Government on the same and let it be
little or much that Hervey and John B shall pay into the treasury the
said balance out of their own private funds and not out of my estate to
them, and their heirs forever.

Item. I give unto my youngest daughter Harriet Thomas, one feather bed
and furniture, one set silver tea spoons, one toilet glass, also my
negro girl Chana? and her four children (viz) Roset, Henry, Sam and Fel,
and also one hundred dollars to buy her a horse and saddle, the said
negroes all and severally, they and their increase to said Harriet T.,
and her heirs forever, as her full share of my estate, and further my
wish and desire is that my sons as soon as I am buried proceed to take
an inventory of all and every part and particle, remainder and
remainders, not before given away or loaned to my wife shall be sold to
the highest bidder, on a credit and the money arising from them, to be
equally divided among all my children )viz) Polly Yiser?, Rachel Sutton,
Hervey, Edmund, Nancy Hamilton, John, to them and heirs forever; this
will include all my estate except my negroes which I wish to be divided
by appraisement or otherwise among themselves, and divided equally to
Polly, Rachel, Hervey, Edmund, Nancy Hampton, and John, to them and
their heirs,

Dear children, it is well known to me, and I think to you, that some of
you has received more or less and in order that an equal distribution be
made among you (Thos. Dillahunty) that each of you render to each other
a faithful account of what you have received, so that Nancy and John,
who has received but little may get their equal right. My will is that
should any of my heirs or any body for them not comply with the above
requisition and prove contentious that my three sons with their mother
proceed to set and divide according to the true intent of this will and
the contentious person heirs or who soever it may be shall have no
redress in law or equity.

My will and desire is that at my wife’s death all of the property and
negroes and increase shall be equally divided among all my children,
male or female, that may be alive, at her death, and no others to them,
and their heirs forever. My will is further to explain that my son John
have and take Stephen, as he was a gift to him from my father to himself
and I give him further four hundred dollars out of the present crop of
cotton and sold to ___ Stout? to buy him two young negroes to him, as he
helped to make it and it is the legacy I mention before be divided
between him and his mother and sisters.

There was $300. loaned to Ira Collton, out of which I wish my
neighbourhood debts paid, funeral expenses and tomb stone (the best and
cheapest can be got at Columbia Tennessee to be set at my grave, and the
remainder applied to the education of the fatherless children of Polly
and Lewis.

My dear wife and children I will close my will, praying you to fear God
and meet me at his right hand, love God and love one another and God
will bless you.

I constitute and appoint my wife and our three sons, Hervey, Edmund, and
John, my Executors, and my further will is that this will shall never go
to court, nor be proven, nor my executors be qualified. You all know my
hand writing therefore safe (save) the trouble and expense. You my heirs
are all of age and pass receipts to each other for your legacies and
dividends and that makes it lawful without costs to you and it is
further my will and desire that if Congress does pass a law in my favor
as purchaser of the following lands on all of which I have paid one
fourth (Viz) 1 quarter section in 25, 1 in 30 and the Et? adjoining 2
quarters in Sec 33, 1 in 28, 1 in Sec 29, that in Section 28 has one
excellent spring on it. These six all lie in the 3rd and 4th Townships
and 8th and 9th Range and the NE quarter of Section 11 and 5 Township 9
Range, my will is that what ever interest or profits that may hereafter
arise to me on those seven quarter sections of land, or any part of
them, may be equitably divided among my children now named (viz) Poly,
Rachel, Edmund and Nancy to them and their heirs forever.

I give my cotton gin to my wife and sons Hervey and John B revoking all
other wills and sign and seal this be the only one, twenty seventh of
January in the year of our Lord 1827.
Thos Dillahunty

In Witness, G G Williams, Perry Bradly.

Whereas I Thomas Dillahunty of the county of Lawrence and state of
Alabama aforesaid did on the 27th of January 1827 make and publish my
will and whereas in my said will, I did devise to the orphan children of
my daughter Polly and son Lewis, the remainder that might be left, after
certain charges that are therein expressed were taken out of it, if
three hundred dollars then loaned? to and due from Ira Carlton and as
the said Ira Carlton has since that time paid and satisfied the said
debt, now for these and other good causes I give and bequeath to my sons
Hervey and John the sum of three hundred dollars, which said sum is to
be held by them in trust for the children of my deceased son Lewis,
which said sum of three hundred dollars shall be applied for the purpose
of educating grandchildren aforesaid.

I hereby revoke all that part of my said will which made the children of
my daughter Polly jointly interested in the devises to which this
codicil has reference. August 14, 1828
Thos Dillahunty Witness: G G Williams, Terry Bradley, Daniel Wright.

State of Alabama, Lawrence County
County Court in vacation, return day October 22, 1828. Present the
honorable Peter W Taylor Esq Judge of said court. An Instrument or
writing purporting to be the last will and testament of Thomas
Dillahunty late of said county was proven by Daniel Wright, Terry
Bradley, two of the subscribing witnesses thereto, they having deposed
that said deceased acknowledged said Instrument in their presence, and
that they subscribed their names thereto as witnesses at his request and
in his presence and they believed him to be of sound mind and disposing
memory, upon which proof said instrument of writing is considered to be
fully proven as the last will and testament of said deceased so far as
relates to the personal property therein mentioned, and the same is
hereby ordered to be recorded. The foregoing last will and Testament of
Thomas Dillahunty deceased was recorded in Book B Pages 346-351.

Page 71
Answer of Nathan Boddie (Summarized)

Boddie said that he knows nothing whatever of Thomas Dillahunty, nor of
his death, his will, etc.. “This respondent states privately that he
never heard of said instrument purporting to be the will of the said
Thomas Dillahunty untill long after he purchased the negro woman Rosetta
as hiring after mentioned. But Respondent raises here the question, and
asks your Honor to considered it whether even conceding the existence of
the instrument designated “Exhibit A” the complainant can take any thing
under it, as a will the same not having been proved according to law -
the more especially as against this respondent, who purchased said negro
Rosetta without any notice either actual or constructive of said
pretended will - and he now insists upon this as a defence.

Boddie said that even if the will was legal, that it gave Rosette to two
people, not just to Sarah Dillahunty - that he is the owner of a negro
woman named Rosetta whom he purchased on the 6th August 1844 together
with her two children named Harriet and Susan from Thomas Kirkman. This
respondent has no knowledge that the girl Roset pretended to be disposed
of in said pretended will, and the woman Rosetta purchased by him of
said Kirkman are the same person and of this he requires proof.

Rosetta was purchased at a sale made by one William C Dillahunty as
trustee ... under a deed of trust executed by Thomas U Lassiter bearing
date on the 4th day of April 1842 - certified copy shown here.

Lassiter is the son in law of Sarah, the Complt, having married Harriet
Thomas, daughter of Complt, and the person to whom said negro Roset is
bequeathed by the said third item of said pretended will and who is the
only person under said will as respondent is advised and believes who
has any interest in said negro.

Boddie said Lassiter had been in open possession of said negro for three
years immediately before the making of the deed - exercising right of
possession over her in Franklin County.

Lassiter took her to Tuscumbia and sold her to Kirkman, and no
declaration of title on the part of complainant was made in either of
said counties.

This Respondent further answering states that is grossly fabulous, and
wholly untrue, that he ever contemplated running said negroes from this
state or secreting them in any way whatever. He admits that he did hire
said negro Rosetta from complainant the date of its commencement ... but
he conceives that he is not thereby prevented either from denying her
title, or disproving it ...

He had respect for her age and condition and was not disposed to
litigate the title with her so long as he could purchase his peace on
fair terms, this he was willing to do by paying her hire for the negro,
and he was still at the commencement of this suit willing to do so
rather than incur the expense and vexation of chancery litigation, the
end whereof no man may tell. But the complainant became dissatisfied
with this amicable and peaceful arrangement and demanded the possession
of said negroes. At first Respondent contemplated gratifying her even in
this rather than go to law with so respectable and aged a female as
Complt who is now as he is informed upwards of eighty years old. But on
reflection many difficulties presented themselves to respt suggestive of
a more prudent course and justifying in his opinion that which he
finally adopted. The Complt was very aged and like all persons at her
time of life easily controlled and influenced. She had sons and son in
law who had it in their powers if the disposition existed to ? his
rights by evil counsels - In addition to which she lived and yet lives
out of this state and by removing said negroes to Tennessee as
respondent verily believes she would greatly weaken the chances of his
ever getting them again, so he determined to assert his rights, it once
however complainant it might be rather than risk so much and when the
demand was made upon him as stated in the bill he refused to deliver
them up altho he had previously promised to do so, whether more than
once he does not recollect, and his belief now is that that promise was
upon condition that complt would give security for the return of the
Negroes to respt at her death. ....

Nathan Boddie 24 April 1848
Walkers Solicitors for Respondent

Page 73
Sale of Rosette made on 4 April 1842 between Thomas U Lassiter of
Franklin County, and William C Dillahunty and Hervey Dillahunty of
Lauderdale County. Lassiter was indebted to $1300. and $1352. and
$2741.85 and $800. and $2000 - notes dated in the summer of 1841.

Lassiter sold to William C Dillahunty slaves in his possession in
Tuscumbia: Grace, 35, Charity, 28 and her infant boy child at the
breast, Anaka, 21, Kate, 22, Cloe, 23, Ann, 13, Armenta, 11, Major, 9,
Haywood, 7, Alfred, 6, Andrew, 4, Susan Eliza, each about 1 year old -
also Hanna an infant (motherless), also Lewis, 30, Anderson, 25, Robin,
28, Daniel, 28, Mack, 18, Jessee, 18, Felix, 16, Willis, about 15. Also
the estate in remainder in Rosetta about 25 years old, the estate in
remainder after the death of Mrs. Sarah Dillahunty - also other property.

Page 75
Demurrer of Boddie

Page 77
Interrogation of Mrs. Sidney Caldwell, a witness to be produced, sworn
and examined in behalf of the plaintiff in the above state cause.
1st Interrogatory
Are you, or not acquainted with the parties, plaintiff, and defendant in
the title of these interrogatories named, or either, and which of them
and how long have you known them? 2nd. Were you or not acquainted with
Thomas Dillahunty in his lifetime,, if so how long did you know him and
where did he reside and if you should answer that he resided in the
neighbourhood of Nashville in the state of Tennessee, then declare if
you know how long he resided there, and declare also whether or not you
resided in the same neighbourhood with him and if you did how long? Did
he or not remove from the neighbourhood of Nashville, in the state of
Tennessee, if yea, when and where did he go? 3rd. Declare, whether or
not the said Thomas Dillahunty had in his possession as owner at any
time within your knowledge, a female negro named Chaney, if yea declare
if you know the age of the said negro Chaney when you first knew her,
and whose property she was at that time, declare also by whom she was
raised, and all you know in relation thereto. Declare your knowledge
fully and particularly. 4th Was or was not the plaintiff above stated
cause the wife of the said Thomas Dillahunty, and declare if you know,
whether or not he is living or dead?

Page 78
Williamson County, Tennessee
...”I David Campbell one of the said Commissioners have caused to come
before me on the 21st day of April 1848 at the dwelling house of Tilman
F Atkerson in the county of Williamson in the state of Tennessee, Sidney
Caldwell aged 67 years, a witness on the behalf of the complainant in a
certain matter of controversy in said chancery court ...

1st I am acquainted with the plaintiff, Sarah Dillahunty, she is my
sister and of course I have known her all my life, But I do not know the

2nd I was acquainted with Thomas Dillahunty in his lifetime. I knew him
from the time of my earliest remembrance. He resided in the
neighbourhood of Nashville say some six or eight miles from Nashville on
Richland Creek. I come out to this county in the year 1796 and I found
Thomas Dillahunty here, he having come out some four weeks before and he
continued to reside on Richland Creek in the neighbourhood of Nashville,
till his removal to the State of Alabama, which if my memory serves me
took place about 1818. I have already said he removed from the
neighbourhood of Nashville to the state of Alabama, and as well as I
remember about the year 1818 I lived in the same neighbourhood, and
within 2 1/2 or 3 miles of him from 1796 till his removal.

3rd I know the said Thomas Dillahunty had in his possession a negro
woman named Chaney. I knew and recollect this negro as well as one of my
own. I suppose the negro was about two years old when I first knew her.
I Recollect that Sister Dillahunty had to keep her in the cradle of
nights. She said child Chaney was the property of said Thomas Dillahunty
when I first knew her and so continued till he removed to Alabama and he
took her with him there. Said Thomas Dillahunty and his wife raised said
girl Chaney, she was nearly grown when he removed to Alabama. I lived in
the same neighbourhood with said Thomas Dillahunty up to the time of his
removal to Alabama, and was frequently at his house, between the time
when I first knew the negro Chaney, and that of his removal to Alabama.
And I know he and his wife raised the said negro Chaney. Sister
Dillahunty kept raise negro Chaney in the house, and raised her with her
own children and did not let her go out with the other black ones.

4th She was the wife of Thomas Dillahunty; he is dead, and has been so
for many years.

Sidney Caldwell, Her Mark 21 April 1848

The foregoing deposition of Sidney Caldwell was taken before me on the
day and at the place in the Caption mentioned and the answers of the
said witness to the annexed interrogations were reduced to writing by me
in her presence, and then the whole of them, as well, as the
interrogatories, were carefully read over to her, and she subscribed
said deposition in my presence by making her mark, being unable from
infirmity in her right hand to sign her name, neither plaintiff nor
defendant being present at the taking of said deposition. ...

Page 80
Deposition of Samson? D Reaves, witness in behalf of the complainant

“Pursuant to the annexed commission to me directed, I have called and
caused to come before me at Raymond, at my office in said town in the
County of Hinds, in the State of Mississippi, Samson? D Reaves a witness
... Sarah Dillahunty .. Nathan Boddie.
“Said witness says that he is acquainted with the parties, he became
acquainted with the plaintiff about the year 1835, and with the
defendant about the year 1835.

2nd In answer to the second interrogatory, said witness says I was
employed by Thomas U Lassiter as an overseer and lived with him in that
capacity about twelve months. He left him about the month of May in the
year 1836. Said Lassiter resided in Colbert Reserve, Lauderdale County
and State of Alabama, when I lived with him. Sarah Dillahunty the
plaintiff resided in the family of said Lassiter all the time I did
afterwards, untill I left Lauderdale County to reside in the State of
Mississippi in the month of January 1838.

3rd In answer to the third interrogatory said witness says I know that
the plaintiff Sarah Dillahunty claimed to be the owner of three negro
women that were at Lassiters at the time I was living with him, the
names of the negroes were Maria, Phillis and Roset. I frequently heard
Lassiter say while I was living with him that the negroes above named
belonged to his mother in law Mrs. Sarah Dillahunty and he frequently
heard Lassiter say “If his Mother (as he called Mrs. Sarah Dillahunty)
was displeased at his treatment of her negroes, she might take them away.”

4th In answer to the fourth interrogatory, said witness says, I know
that Mrs. Sarah Dillahunty had the girl Roset in her own room every
night, and usually of wet or rainy days, and seemed to exercise the
priviliges of ownership of her, as also of the other two, and further
this deponent saith not, and hereto subscribes his name, S D Reaves

Page 82
Deposition of Lucinda Carpenter

“Pursuant to the annexed commission to me directed, I have caused to
come before me on this the 29th of April 1848 at the residence of Hervey
Dillahunty, in the Town of Florence, County of Lauderdale and State of
Alabama, Lucinda Carpenter the witness in said commission ....

1st Deponent is acquainted with complainant and has known her 35 or 40
years. Does not know the defendant.

2nd Deponent was acquainted with Thomas Dillahunty decd in his lifetime
he resided in Davidson County, Tennessee, near Nashville, when she first
knew him. He resided in Lawrence County, Alabama, at the time of his
death, and died about the month of August 1828 at his their place of

3rd Deponent states that the complainant in this cause is the widow of
the said Thomas Dillahunty decd. Deponent was with the said Thomas
Dillahunty decd all the time during his last sickness, present when he
died, and present at his burial.

4th Deponent states that said Thomas Dillahunty was the owner of a negro
woman named Chaney, at the time of his death. He was the owner of said
woman when deponent first knew him, which was long before his death, say
20 years. Deponent further states that said negro woman Chaney did have
children, the oldest of her said children was named Roset, the woman now
in controversy.

5th Deponent states that she knows that said complainant had the
possession, claiming owner, the said oldest child of said Chaney, to wit
Roset, after the death of said Thomas Dillahunty decd and continued to
be the owner and have the possession of said woman so far as this
deponent had any knowledge. This deponent saw said negro woman in the
possession of said complainant last, in the summer of 1844.

Lucinda Carpenter 29 April 1848

Page 83

Deposition of Mrs. Margaret Smith

Pursuant to the annexed commission to me directed I have caused to come
before me on this 26th day of April 1848, at the residence of John A
Smith in the Town of Florence ... Margaret Smith ...

1st Witness answers that she is acquainted with the parties plaintiff
and defendant in said cause, and known them 10 or 12 years.

2nd Witness knows that Thomas U Lassiter did reside in Lauderdale
County, Alabama, he resided in Colbert’s reserve 10 or 12 miles west of
Florence. He resided there from the time deponent knew him untill he
left the county, which was in the spring or summer of 1842 or 1843.
Witness does not distinctly recollect the year he removed from his said
place of residence to Tuscumbia, Franklin County in this state.

3rd Deponent did often visit the family of said Thomas U Lassiter while
he resided in this county, and Sarah Dillahunty the plaintiff in this
suit resided in the family of said Lassiter up to the time that deponent
last visited the family of Lassiter which was in the summer of 1839. The
wife of said Lassiter was the daughter of said Sarah Dillahunty the
plaintiff. Deponent knows this from having heard both mother and
daughter oftentimes say so.

4th Deponent did become acquainted with a servant girl living in the
family of said Thomas U Lassiter, during her visits there, said servant
girl was named Roset, and said Sarah Dillahunty the plaintiff claimed to
be the owner of said girl while she was in the family of said Lassiter.
Witness often heard said plaintiff say she was the owner of said girl
for her life, or had a life estate in said girl and at her death said
girl would go to Mrs. Lassiter and her children. Said girl often waited
upon said plaintiff and slept in the room with said plaintiff when
deponent was there and deponent heard plaintiff say that she permitted
said girl to go out in the plantation to work. Deponent never saw said
girl waiting on any other member of the family besides the plaintiff.
Deponent further states that she visited the family of said Lassiter
once or twice every year and would stay two or three weeks each visit
(deponent makes the latter part of this answer as part of her answer to
3rd inter.).

Margaret C Smith

I do certify that the foregoing deposition was taken by me at the time
and place mentioned in the caption, that the same was reduced to writing
by me in the words of the witness as near as may be, in the presence and
by her signed in my presence, and that the same was not out of my
possession until sealed. In witness whereof I have hereunto set my hand
and seal on this 26th day of April 1848 Wm B Wood, Commissioner

Page 85
Deposition of Mrs. Frances Gregg

Pursuant to the annexed commission, I have called and caused to come
before me, on the 18th day of April 1848 at the dwelling house of
William Gregg in Lawrence County, Alabama, Frances Gregg, a witness in a
certain suit ....

1st I am acquainted Mrs. Sarah Dillahunty the person named, and have
known her from my childhood - since about 1820.

2nd I was acquainted with Mr. Thomas Dillahunty from about 1820 to the
time of his death, which occurred as well as I recollect about 1828. My
father lived about a mile from Mr. Dillahunty I should think. I visited
the family frequently. He died at his residence near my Father’s in
Lawrence County.

3rd He did own a servant by that name at the time of his death, I know,
she had several children, the oldest a yellow girl named Rosetta,
familiarly called by the family Letta Zetta? and sometimes Rose.

4th Yes. she was in possession of Mrs. Sarah Dillahunty and owned by her
as I always understood.

Frances Gregg 28 April 1848

Page 88
Moses Wood

Moses Wood - acquainted with the parties to this suit and has known them
about 15 years. Knows that Thomas U Lassiter resided in Lauderdale
County. Said Lassiter came to this county in the spring of 1834 and left
this county in spring of 1842 having resided in said county all the
intervening period. He knows the negro woman Rosetta and three of her
children now in the possession of the defendant to this suit. Knows that
Rosetta lived at Thomas U Lassiter’s from the time Lassiter came to this
county until he left it and Sarah Dillahunty claimed said negro woman as
her property while she was living with Lassiter and said negro woman
having waited on her as her servant. Witness has also seen said girl
waiting on Lassiter’s family and also at work in the farm of said Lassiter.

Doesn’t know whether or not Lassiter exercised acts of ownership over
said negro. He had seen said woman at different times working
alternately in the field and in the house, does not know her to have
been regarded as a field hand. Said woman worked in the field at times
every year after she was large enough to go into the field to work until
said Lassiter removed from the county. ...

Deponent states that said Rosetta has three children, that he knows, the
oldest Susan is 7 or 8 years of age, he does not know the names or ages
of the others. Defendant obtained possession of said negroes by hiring
them from the complainant at thirty dollars per annum. Deponent states
that said defendant told him that he had hired said negroes from Mrs.
Dillahunty and was to give her thirty dollars per annum for them, this
was Boddie’s language to deponent as near as he can recollect. Defendant
obtained possession of said negroes from complainant in the summer of 1844.

Page 89
William C Dillahunty

Deponent states that he is acquainted with the parties to this suit has
known complainant all his life and the defendant 10 or 12 years. He is
the trustee designated in a trust deed now here shown to him Marked No.
1, and as said trustee he sold all the property conveyed to him in said
deed except four of said negroes which were included in the trust deed
made to Neander H Rice, the names of said negroes as well as he
recollects, were Felix, Jessee, Anderson and Willis. He sold said
property about the 30th of August 1842 in the Town of Tuscumbia ... He
sold the negro woman, Rosetta, therein mentioned to one Thomas Kirkman..

He sold said property at the request of Samuel W Probasco Esqr, James
Kirkman and James W Stewart the agent of James Noel.

Witness states that he sold at said sale only a contingent right to said
woman Rosetta; said woman was sold subject to the life-estate of Mrs.
Sarah Dillahunty, the complainant - He sold only the interest which said
Lassiter had in said woman and so proclaimed at the time. He delivered
said woman into the possession of Thomas Kirkman, who was the purchaser
at the sale ... whether said Kirkman really ever took possession of said
woman witness does not know.

Page 90
Hervey Dillahunty

Witness answers that he is the person mentioned as the security of said
Lassiter in said deed, and he further answers that he was the security
of said Lassiter on some paper and indorser on other, to the persons and
for the amounts or thereabouts as well as he recollects as is mentioned
in said deed marked No 1. And further this deponent saith not and
hereunto subscribes his name. Hervey Dillahunty

Page 90
John Sherrod

Witness states that he was during the latter half of the year 1836
overseer for said Lassiter, during Lassiter’s residence in this county,
and during that time said negro woman Rosetta did work under him as said
overseer, upon the farm of said Lassiter among the other hands of said

Page 91
Lewis Powers

I know both of the parties, and have done so for many years. I resided
with and was in the employment of Nathan Boddie the defendant as his
overseer during the years 1843 - 1844 and 1845. I know that the
defendant Boddie hired from the complainant about the latter part of
July 1844 a negro woman named Rosetta. I was informed by defendant
Boddie that he was to pay complainant $30. per year hire for said negro
woman and feed and chothe her two children. The time for which he first
hired her was 12 months from the latter part of July 1844 and then he
hired her on the same terms as I learned from him for twelve months more
so that the term of the last being expired in the latter part of July
1840. The names of the children of said woman Rosetta were Susan and
Harriet, the former is now I suppose about six years old, she may be
seven, the latter about four years old. Said woman, Rosetta, was
pregnant when I left Boddies in January 1840.

L E Powers

Page 93
Ira Arnold
28 April 1847

I am acquainted with the parties and have known them for six or seven
years. I was present when a conversation took place about the last of
July 1846 between complainant Dillahunty and defendant Boddie, at the
house of Hervey Dillahunty in Lauderdale County. I come up at the time
the complainant and defendant were conversing about a negro woman that
defendant had hired from complainant. I understood from the parties that
the time for which defendant had hired said negro woman was then about
out. Complainant stated that she wanted to send the negro woman then at
defendants house up to David Gresham’s and have her and her children
there and take a woman of hers then at said Gresham’s and who had no
children away to wait on her the complainant. Defendant Boddie promised
her that in a few days he would take the negro woman and children then
at his house up to Martin Cassity & Co Factory; so that Gresham might
get her from that place. Said Gresham was present, and said Boddie asked
Gresham to meet him at said Factory and take said negro woman and
children home with him. But said Gresham stated he had no means of
conveying said negro from the Factory; to which Boddie replied that
Gresham must meet his negro boy and waggon at the Factory and show him
the way to his (Gresham’s) house, and he Boddie would send them all the
way to said Gresham’s house.

I did after the conversation above detailed, call on defendant Boddie
and request him to send complainants slaves to her. I was requested to
call on defendant for the slaves in question by complainant. Said Boddie
said in reply to my demand, that he would not do so unless complainant
would give him a bond and security - that he had bought the woman from
Thomas Kirkman, and he would not be safe, or would have no recourse back
on Kirkman unless he took a bond for the negroes.

Ira Arnold

Page 94
Final Decree

The bill charges that under the will of Thomas Dillahunty, the husband
of complainant, she became entitled to a life estate in a certain slave
named Rosetta, which she took into possession and kept untill the year
1842 when Thomas U Lassiter who had married the daughter of complainant
to whom the remainder in the slave was bequeathed by Thos Dillahunty,
took her to Franklin County against the wish and positive prohibition of
the complainant.

That Lasiter conveyed the interest of his wife to Wm. C. Dillahunty by
deed of trust, expressly reserving the life estate of complainant, that
Dillahunty sold the slave and her children under the deed, and one Thos
Kirkman became the purchaser, that Kirkman sold them to the defendant
who hired them from Complainant a year or two and when the last term of
hire was out refused to deliver them to complainant, and claimed them as
his own. That the slaves are family slaves for which complainant has a
great affection having raised the woman in her own family - and because
of her great fidelity to and affection for Complainant - and further
because they were bequeathed her by her husband, for these reasons she
values them more highly than their price in money, and that a pecuniary
compensation would be inadequate.

To the bill is attached a certified copy of the will and its probate
before the orphans court of Lawrence County on the 22nd October 1828
which is tendered as an exhibit, and prayed to be made a part of the bill.

The Complainant prays that the slaves be delivered to her, and for
compensation by way of hire for their detention. To this bill a demurrer
is interposed, and under it the following grounds are relied on to
sustain it and impeach the Complainant’s right to recover.

1st That the will under which the Complainant claims as exhibited has no
sufficient evidence of probate upon, which it should have been recorded,
and that untill it is proven, no rights to personal estate can be
asserted under it.

2nd That between the clause of the will under which the plaintiff claims
a life estate in the slave Rosette, and a subsequent claim in which the
same slave is given absolutely to Harriet T. the wife of Thomas U
Lassiter there is so great a repugnance that both cannot stand together,
and the last must prevail which divests the complainant of all claims to
the slave.

3rd That if the complainant is entitled to the life estate, the
defendant is entitled to the remainder, and in a bill like the present,
the complainant should offer to secure the remainder to the defendant,
or failing to do so the bill is fatally defective.

Upon the first ground of demurrer it is contended, that as the order of
probate does not recite that notice was given to the next of kin, or
show that there were non such residing in the state, it is fatally
defective, and the probate is void, inasmuch as such notice or reason
for not giving it, is necessary under the act of 1820 (Clay’s Digest
303, 34) to give the Orphans Court jurisdiction to take the probate of

By the act of 1807 (Clay’s Digest 302, 26) it is provided that “The
County Court shall have full power and authority to take probate of
wills.” By this act a general jurisdiction over the subject of proving
wills is conferred on the Orphans Court, and in my view of the act of
1820 its provisions are not necessary, nor were they designed, to confer
jurisdiction over wills upon that court. It is merely directory and a
failure to comply with its provisions would at most make the act of that
court voidable, and not render it void. Again by the 54 of the Act of
1806 (Clay’s Digest 595 15), a time is limited within which persons
interested in an estate must litigate the validity of a will, or the
rights of legatees will be perfect and not liable to be disturbed by
persons claiming as heirs of the testator.

This time is five years. In the present case more than three times that
period has elapsed, during all which the parties in interest have
acquired in the will ____. But it is contended that this limitation
operates only against the heirs at law and next of kin, and cannot
affect a stranger in blood and that the defendant in this case must be
regarded as a stranger. If any weight were due to this argument, in a
proper case it certainly can avail nothing here, as the defendant is a
privy in estate with one of the legatees, and claims under a deed which
expressly recognizes the right and protects the claim of the complainant.

Kirkman bought Lassiter’s right, and sold no more to the defendant.
Again the defendant himself by hiring the slaves has recognized the
rights of complainant and estopped himself from denying it.

The second ground taken is also untenable. The two clauses of the will
are not irreconcilable, or repugnant but both may well stand and when
this can be done and full effect can be given to every part it is the
duty of the court to do so. Again the last reason assigned against the
first ground of demurrer is equally fatal to this. Upon the third ground
of demurrer, it is sufficient to say that the present does not belong to
that class of cases in which the complainant is required to offer any
thing to the defendant before she will be allowed to seek her rights
through the medium of this court. In fact, unless a strong case of
hazzard to the rights of the remainder now were made out, and this
danger arising from the fraudulent conduct of the owner of the present
interest a court of Equity will never interfere in behalf of the former,
so as to disturb, for a moment, the enjoyment of the latter.

For these reasons the demurrer must be overruled. On the merits of the
case, the complainant has shown all that is necessary to entitle her to
the relief she seeks. It is, however necessary that an account should be
taken of the value of the slaves, by way of hire, since the defendant
has had them in possession, and for this purpose the case must go to the

Let the following decree be enrolled and orders entered.

It is ordered, that the Master take, state and report an account between
the parties, ascertaining the annual value of the slaves named in the
bill, by way of hire, for the time during which they have been withheld
by the defendant, and for which he has paid her no hire and that he
calculate interest on each year’s hire at the legal rate from the 1st
day of January in the succeeding year untill the taking of said account.
It is ordered, adjudged and decreed, that upon the coming in and
confirmation of the Masters report, the defendant pay to the complainant
the sum reported to be due her within thirty days from the rising of
this court with legal interest thereon from the time of taking said
account untill such payment. And in case he fails that the Register
issue execution therefor.

It is further ordered, that the Register issue to the sheriff of
Lauderdale County immediately on the rising of this Court an order
requiring him to take into his possession and deliver to complainant the
negro woman Roset and her children, Susan Harriet and Charles, and any
other child which may have been born of her since the filing of this
bill in this case, if to be found in the possession of the defendant, or
any person claiming under him since the commencement of this suit.
It is further ordered, adjudged, and decreed that the defendant pay all
costs to be taxed by the Register.

D G Ligon, Chancellor

Masters Report

... To arrive at a fair estimation of the value of the services of the
negroes I have examined as Witnesses, Baylor B Barker, Neander H Rice,
Henry Richard and Stephen C Harrah in addition to the testimony on file
in the cause and from their testimony I find that said negroes were
worth in the year

1846 $30.00
1847 $30.00
1848 $25.00
1849 $15.00

It appears that the defendant is indebted for the services of the
negroes from the 1st of August 1846 up to this date. The account
therefore stands as follows

Hire for 1846 five months $12.50
Interest up to 11 May 1849 2.35
Hire for 1847 $30.00
Interest up to 1 May 1849 3.27
Hire for 1848 25.00
Interest to 11 May 1849 .70
Hire for 1849 up to this date 5.41
Total: $79.23

I find therefore that the complainant is entitled to a decree against
the defendant for the sum of seventy nine dollars and twenty three cents
as of this date, May 11, 1849. S T Thustin, Register
The case was confirmed by the Chancellor.

Page 98
Sarah Jackson et al vs Sarah M Polk and Sallie M Polk

Be it remembered that heretofore on the 17th day of March 1849 Sarah
Jackson, James Kirkman and Thomas Kirkman filed their Bill of Complaint
.. against Sarah M Polk and Sallie M Polk, defendants in said cause.

Original Bill
... Thomas Kirkman and Sarah Jackson citizens of Lauderdale County, and
James Kirkman a citizen of New Orleans. That James Jackson late a
citizen of said County of Lauderdale died in said county on the __ day
of 1840 leaving a large real and personal estate. ... Will made and
published in 1838.

... Sarah M Jackson mentioned in said will as one of the daughters of
said James .. was married in the year 1840 to one Rufus K Polk of the
County of Maury in the State of Tennessee. That the said Rufus died in
the year 1843 leaving an only child of said marriage, a daughter named
Sally M., now about eight years of age. That the said Sarah M. Polk
(formerly Jackson) is now a widow, and is of the age of twenty one years
and upwards ... (directions of will as to division of the estate)

Page 118
Will of Rufus K Polk

Left his property to his wife Sarah M Polk during her life or widowhood,
and the remainder to my only child Sally M Polk, but in case my said
child should die, without issue living at the time of her death, then I
give devise and bequeath, what I have devised to her, to be equally
distributed between my brothers Leonidas Polk, Lucius L? Polk, and
George W Polk. ... in case of marriage of my said wife ... one third of
all my personal estate and one third of my real estate .... Feb 8, 1843.

Final Decree
The complainants as the executors and executrix of James Jackson decd
are hereby authorized and empowered to loan to the said Sarah M Polk as
Executrix of Rufus K Polk decd the fund now in their hands as trustees
under the will of the said James Jackson, for the use and benefit of the
said Sarah M Polk ... taking by way of security for the same a mortgage
on the plantation lately the property of the said Rufus K Polk, situate
in the County of Maury and State of Tennessee and known as “West Brook.”
D G Ligon, Chancellor

Page 116
Sarah Jackson et al vs Abram D Hunt and Others

Page 117
... said A D Hunt and the said Ellen are desirous of removing to the
City of Lexington in the State of Kentucky for the purpose of educating
their children. The said A D and Ellen have a large and growing family
of children, and require in consequence a good and commodious dwelling
house. Under these circumstances, and these petitioners considering the
investment of said trust fund, prescribed by the will a very insecure
and undesirable one, the said A D Hunt with their knowledge, consent and
approval on the __ day of May 1848 purchased for the use of said Ellen
and her children from John Tilford Esqr a dwelling house and lot in said
City of Lexington for the sum of $7500. upon a credit of one, two and
three years, with interest at the rate of 6 pr cent per annum payable
semi annually. The lot thus purchased is 164 feet front on Broadway
running back unequal distances to an alley with an average depth of
about 140 or 150 feet. The dwelling House is of brick with nine good
rooms handsomely finished. There are attached to the main building brick
negro rooms, kitchen, bath house, smoke house, stable and carriage
house. There are also on the lot a well, cistern, wood house, ice house
and dairy. The situation is a most eligible one, being on the most
desirable street for dwelling houses in the City and the most desirable
point on that street.

... To the extent of the purchase money your petitioners believe the
said dwelling house and lot to be a proper and secure investment of the
Trust fund devised to them, in trust for said Ellen and her children. ...

Page 128
Deposition of James A Grinstead and Francis K Hunt taken on Monday the
23rd day of April 1849

We have resided in Lexington all our lives. Said Grinstead states that
he is thirty five years old and said Hunt that he is thirty two years
old. We both consider ourselves acquainted with the value of real estate
in the City of Lexington Kentucky. .... That we are acquainted with the
dwelling house and its appurtenances in said City now and for some time
past in the occupancy of A D Hunt and formerly owned by John Tilford,
Esqr. It is situated on Main Cross Street otherwise called Broadway. It
is situate on the widest and one of the most pleasant streets in the
city. Very near to the business or central portion thereof, fronts one
hundred and sixty four feet on Broadway ... and runs back to an alley
one hundred and twenty feet. ... The buildings thereon are extensive and
commodious, a large portion thereof having been erected by said Tilford
within the last twelve years. We think said property is worth $7500.. We
do not think it likely to deteriorate in value. On the contrary we think
it probable that it is common with other real estate in the City will
advance in value.

Final Decree

“The great changes in the monied affairs the country since the
publication of the will of the late James Jackson would seem to render
an investment in Bank Stock not only hazardous but highly impolitic.” ..
D G Ligon, Chancellor, approved the investment of $7500. in the house
and lot in the City of Lexington, Kentucky.

Page 133

Harkins et al vs Willis Pope

Final decree at May term 1845, in this cause as recorded in Record Book
B in this Office commencing at page 115, and ending on page 144. -
dismissing the complainants Bill. A writ of error was prosecuted, to the
Supreme Court of the said State, and said Decree reversed and the cause

It appears as between the parties themselves, the title of the defendant
Pope to two thirds and that of Harkins, Brahan and Saffarans to one
third of the Hotel was admitted, and the former leased from the latter
during the life time of Saffarans their portion at a specific rent for
the year 1840 and held possession after the expiration of that year
without any new agreement for rent until the building was destroyed
towards the close of the year 1841. A portion of the rent for the first
year and the whole of that for the second being unpaid the question
which arises is whether the defendant Pope is liable to pay rent for the
second year according to the agreement for the first?

And the second is whether the portion coming to Saffarans goes to his
administrators or to his heirs?

The common law idea that rent is only due where there is a demise has
long since been changed both in England and in this country by Statutes
authorizing recoveries for use and occupation.

Our Statute used the terms reasonable satisfaction, digest 505, 1, but
is presumed not to be materially different from those in other states.
In New York, the decisions are uniform, that where there is a lease for
a certain annual rent, and the tenant holds over without any new
agreement as to the rent the law implies he holds from year to year at
the Original rent. ...

Page 135

Martin Harkins Answer to a bill filed against him, Robert W Brahan, the
heirs of Peter Saffarans, Hugh Simpson, admr of the estate of Peter
Saffarans, decd - by Willis Pope

He admits it to be true that he and his co defendants filed a bill in
said court against said Willis Pope and other heirs of Mary A Pope ...
Res’t admits that the Eagle Hotel mentioned in complete bill has not
been rebuilt at any time since said Pope leased the same to Thomas
Pearsall, or rather since the same was burnt down on the 26 December
1841. And this respondent states that by the agreement of lease the
repairs was to be done by the lessee, or he was to have it done at the
expense of the lessors so that said Pope as assignee of Pearsall was to
have the work done if rebuilding was repairs contemplated by the
contracting parties, and the lessors were there to pay the expense
thereof, now respondent states and answers that said Pope did not
rebuild nor give to respondent and his co-defendants any notice so far
as is known to him that he wished to rebuild said Hotel on Lot No. 75
and that he would join with them in the expense thereof so far as he had
an interest in the lot as a fee simple owner. If he had received damage
then as he in said bill alledges to $2000 and hundred dollars he has not
these defendants to blame therefor, for up to this time he has never
offered to this defendant to repair under the lease or otherwise by
rebuilding said Tavern House so burned down.

In further answering said respondent says he admits it to be most true
he never offered to contribute for the payment of the two small houses
alledged to have been bought from Joseph Bigger and William G Thompson
and it is his belief his co-defendants made no such offer because he
says that him and his co-defendants Brahan and Peter Saffarans purchased
t he property viz the one third part of said Lot No. 75 long after said
houses had been placed thereon and without any knowledge that said Pope
had any equitable right to any contribution from Percifer P Pearson
under whom they purchased the 1/3 part as aforesaid if indeed said Pope
had any right contribution from said Pearson which he cannot admit but
on his belief denies.

Respondent admits because he had no personal knowledge of the outlay
alledged by said Pope to be made in 1840 and 1841 on the Eagle Hotel for
necessary repairs to the extent of $230?. Nor has he any knowledge of
repairs done to the House got from Pearsall in exchange for the Eagle
Hotel to the extent of $350.00. Nor has he any knowledge of the
necessity of those repairs. Nor is he informed thereof otherwise than by
complainant setting them up ... and therefore requires full proof of both.

Respondent further answering states neither he nor said Brahan or
Saffarans to respondent’s knowledge ever offered to contribute for any
part of the $1000. dollars paid by said Pope to Pearsall as a difference
between the five years lease of the said Hotel, and the property got in
exchange by said Pope, as they do not claim any interest in said
property got in exchange from said Pearsall any further than their
interest in Lot 75 and the Eagle Hotel and appurtenances paid for that
property. And as to contributing 1/3 for the release or assignment of
the lease by Pearsall, respondent and his co defendants have not sought
to take any benefit therefrom, but have allowed him to reap all
advantages therefrom.

And he here says by this release or assignment said Pope got back, all
the furniture saved from the fire which consumed the Hotel and Lot 75
and the appurtenances which he states in his answer was rented at 90
dollars, and the stables which he rented at 50 dollars per annum.

But even if respondent and his co defendants should be considered in
duty bound to contribute 1/3 of the amount paid by Pope to Pearsall
which was seven hundred dollars, said Pope has more than sufficient in
his hands as a fair accounting of their money for rents due to them for
1840 and 1841 - for rent of stables and for rent of the houses reserved
in the lease to Pearsall, as well as for brick and lumber sold from the
wreck of the Hotel.

So that he has no reason to complain being as respondent believes on a
fair and just accounting in debt to this defendant and his co defendants…

... the said Willis Pope in his answer to the original bill filed by
this defendant and his now co-defendants i this court doth deny the
title and right of this defendant and his now co-defendants, being
complainants in that Bill to 1/3 of Lot No. 75 and appurtenances and the
said Willis Pope doth also by that answer deny that they said
complainants in that Bill had any right or title to any portion or
interest in the houses and lands got in exchange for the five years
lease aforesaid of the Eagle Hotel and appurtenances. Whereas by his
cross bill said Willis Pope doth claim all his right and title to
damages for not rebuilding the said Eagle Hotel or tavern house and to
contribution for outlays for repairs to said Eagle Hotel in 1840 and
1841 - and for repairs necessarily done to the amount of $350. dollars
to the property got from said Pearsall in exchange for the property
mentioned in Exhibit B - on the admission that this defendant and his
now co-defendants were and are the true owners of the interest in said
property to the extent and in the manner set forth in their original bill.
... do not entitle said Willis Pope to maintain his said bill as a cross

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