Opinion
01-29-1817
Bolling v. Bolling and Others
[Syllabus Material] [Syllabus Material] [Syllabus Material]
Robert Bolling, of the County of Dinwiddie, by his last Will, dated January 30th, 1775, and proved in Court in March 1777, disposed of his property as follows:
In the first place, he directed his just debts and funeral expenses to be expeditiously and honourably paid by his Executors. Next, he " lent to his loving Wife Mary, during her natural life, the land and plantation, on which he then lived, with all his lands adjoining or contiguous thereto, including that, which he purchased of John Ravenscroft, his several lots in the towns of Blandford and Petersburg and adjoining thereto, also the rents of his several ware-houses, called Bolling's, Cedar-point, Bolling Brook, Blandford and Davis's, together with the use and profits of one moiety of his water-grist Mill, and of all his slaves, stock of cattle and household furniture on the plantation first mentioned; " adding these words; " I also direct, that my said Wife shall be furnished, during her life, out of my whole estate, with whatever provision and necessaries of every kind she may have occasion for, to support herself and family in the same manner I have always lived, or in any other manner she may think proper."
Item, he gave to his son Robert, his " land and plantation, called Eaton's, to be delivered to him so soon as he arrived to the age of twenty-one years, to hold to him and his heirs forever; also his lands at Squirrel Level, and that part of his Namozeen tract which lies above Wells's Road, to him and his heirs forever; also, after the death of his Wife, all his lands, or lots of land, either in or about the Towns of Blandford and Petersburg, also the tract of land, on which the Testator then lived, and all the lands devised to his Wife for life." He directed, that his son should have possession of the forementioned part of " his Namozeen tract of land, his Merchants' Mill, and one moiety of his Water Grist Mill on Appomattox, as soon as he arrived at the age of twenty-one years, and should hold the same, and all the other lands devised to him, and his heirs forever.
" Item, he gave to his son Thomas, and to his heirs forever, his several tracts of land, called Hardwick's, May's, Edward's, and the Long Ordinary in the County of Dinwiddie, and all his lands on both sides the Namozeen Creek in the Counties of Dinwiddie and Amelia, excepting thereout so much of the said tract, as lies on the upper side of Wells's Road, which he had before devised to his son Robert, called Otterdam.
" All the rest and residue of his estate, he gave to his loving Wife Mary and his friend John Tabb, in trust that, after the payment of his debts and making such provision for his Wife, as she should choose, in the manner before mentioned, or in any other manner, that they, or the survivor of them, should divide the same among all his children, in such manner and at such time as they, or the survivor of them, should think proper, to hold to them and their heirs forever in severalty.
" Lastly, he appointed his loving Wife Mary, and his friend John Tabb to be Executrix and Executor; directing, that no part of his estate be appraised, and that his Executors give no security."
When the Will was proved, John Tabb alone qualified as Executor: in June 1789, Mrs. Bolling qualified as Executrix.
At the time of the Testator's death, which event took place on the 24th of February, 1775, his son Thomas T. Bolling wanted three days of being twelve years old. He was sent to school and maintained, as were his brother and three sisters, by their Mother, out of the profits of the estate generally, which for the most part was managed by her, and applied, after paying the debts of the Testator, to her and their use, in a prudent and economical manner. Thomas T. Bolling, being in a bad state of health, was advised by physicians to visit Europe; in March 1783, he left America, and arrived in France in the course of the succeeding month. His expenses on that occasion, and until he returned, were borne by Mrs. Bolling. In October 1785, he returned to America; and, on the 1st of January 1786, was put into possession of Hardwick's, May's, Edwards's, and the Long Ordinary in the County of Dinwiddie, and a plantation in Amelia, called the Lower Quarter. At the same time, she delivered to him thirty-nine Negroes, some horses, sheep, cattle and hogs, as his share of the personal estate; retaining herself possession of the Namozeen lands, devised to him as aforesaid, for the convenience (as she alleged afterwards) of raising the young slaves and maintaining the stock, as she had no other plantation to keep them on; her own home plantation not being equal to it. It was averred by Thomas T. Bolling, and from the testimony appeared to be the fact, that, at this time, he had not seen the Will of his father, and took it for granted, that his mother had a life estate in the lands she retained. Having afterwards contracted debts to a considerable amount, part of which consisted of money lent him by her, he, with her consent, offered for sale to other persons a thousand acres, called the Dogwood Thicket tract of land, part of the lands so retained (which in all consisted of seven thousand acres) and at length made the sale to herself at five dollars per acre; one thousand pounds of the purchase money being discounted out of the debts he owed her, and the balance paid him shortly after the contract. In February or March, 1798, he became acquainted with the contents of the Will, and immediately demanded of his mother the whole of the lands in question, except the part she had bought; contending that his right to the whole had accrued at his father's death. On the first of January 1799, she surrendered the possession; but they could not agree as to the compensation, to which he was entitled. Whereupon, he brought two suits in Chancery against her, in the County Court of Dinwiddie; the first, to obtain satisfaction for the use of his lands during the time they were, as he alleged, improperly withheld; the second, to set aside the sale of the Dogwood Thicket Tract, on the ground that he had sold it for less than its value, through ignorance, at the time, of his right to immediate possession. Upon his motion, also, at April Term 1798, the same Court made an order, summoning Mrs. Bolling and John Tabb to render an account of their Executorship; and, afterwards, an attachment was issued against her, for having failed to do do.
Mrs. Bolling then filed a Bill in the High Court of Chancery, making all the children parties; for an Injunction to stay proceedings on that attachment, as oppressive and unnecessary; and also for a Writ of certiorari to remove the several suits aforesaid into that Court; that her rights under the Will of her husband might be declared; that Thomas T. Bolling might be decreed to pay her his just proportion of the support of herself and family; that the accounts between them might be adjusted, and the balance due decreed in her favour.
The late Chancellor Wythe awarded the Injunction, and a Writ of certiorari, which was never issued, but the Records from Dinwiddie were certified without it.
Sundry proceedings were then had in the suits; and, on the 6th of October 1803, the Chancellor, " after perusing the Bills Answers, Exhibits, examinations of witnesses, and report of a Commissioner with exceptions thereto, and after hearing Counsel, was of opinion, that the children of the Testator, Robert Bolling, were entitled, so long as they continued members of his family, and also when they were absent from it for the sake of health, to support, and to the expense of scholastic erudition in their native Country, out of the estate lent to his Wife; and to the residue of his estate devised to Trustees, after payment of his debts and making provision for his Wife: and that the residue included the reversion of that moiety of his Water Grist Mill on the River Appomattox, which was devised to his Wife during her life, and the profits of those lands, and of the Merchant Mill devised to Robert the son, whereof he was authorized to take possession, when he should attain full age, until that time from the Testator's death, and, also, the slaves not devised to the Wife: that the conveyance of the land, called Dogwood Thicket, by the plaintiff to his mother, who both supposed him, who had a present title, to have no more than a reversion, was in equity not binding." He therefore decreed, that the defendant, Mary M. Bolling, reconvey the said Dogwood Thicket land to the plaintiff, when he should account with her for so much of the purchase money, with Interest and the value of the permanent improvements erected by her upon the land, as exceeded the profits thereof; and recommitted the accounts, with instructions to the Commissioner, " to state an account of the damages, which the plaintiff sustained, by dilapidations of the houses, and by destruction of the trees, on his Namozeen lands, and by tillage of them during the time of the defendant, Mary M. Bolling's occupation: to ascertain which damages, a Jury was directed to be impanelled and charged, on trial of an issue for that purpose, before the County Court of Amelia, and their verdict to be certified, & c., to state an account of the profits of the plaintiff's Namozeen Mill and lands, and Long Ordinary in the County of Dinwiddie, before the surrender of them to the plaintiff; to state an account of the administration of the Testator's goods, rights and credits; to state an account of the Testator's Water Grist Mill on Appomattox from the time of his death, informing who was or were receiver or receivers thereof; to state an estimate of the hire of the plaintiff's share of the residuary slaves, while they were labouring for his mother the defendant; to state an account of the profits of the Testator's Merchant Mill from the time of his death until his son Robert's attainment of full age; to state an estimate of the expense of the plaintiff's maintenance and education, if he had remained at home instead of travelling abroad during that interval; to state an account of the daughter Rebecca's part of her father's estate; and to state an account of the dealings between the plaintiff and his mother; with any other accounts the parties might require; and report the whole to the Court."
In pursuance of this Decree, an issue was made up and tried at the Bar of Amelia County Court, and a Verdict certified, assessing the damages sustained by the plaintiff, on account of the dilapidation of the houses on his Namozeen estate, to 6401. 5s. and on account of the clearing and tillage of his lands, to 8091. A Report was made by the Commissioner, accompanied with many depositions of witnesses, to which exceptions were filed.
On the 7th of June 1805, in the suit in which Mrs. Bolling was plaintiff, the Chancellor, " unable to determine which of the parties, or how much either of them, was indebted to the other," decreed that the plaintiff " seal and deliver to the defendant, Thomas T. Bolling, a release of all her demands against him, and deliver to him all mortgages, bonds and other securities for payment of money due and supposed to be due from him to her." In the suits in which Thomas T. Bolling was plaintiff, the Chancellor decreed, that the sale of the Dogwood Thicket Tract of land be set aside, but that the Bills of the plaintiff, as to every thing else by them sought, be dismissed.
From these decrees, both parties appealed.
OPINION
Judge Roane pronounced the Court's opinion.
The Court, not deciding, absolutely, that the Appellant Mary M. Bolling had a life interest in the estates devised to the Appellee Thomas T. Bolling, under the Will of her husband Robert Bolling, nor that she had a strict right, under the same, to convert the whole profits of those estates to the support of herself and the children of the said Testator, although such are the present impressions of the Court, is of opinion that, after the great length of time which elapsed from the death of the said Testator and the probate of his Will, before the institution of the suit by the said Appellee, claiming those estates; and after all parties had apparently acquiesced in this construction thereof; and after the said Appellee Thomas T. Bolling himself had not only so acquiesced, but had, in effect, assented thereto and ratified the same, by receiving from the Appellant Mary M. Bolling, in the year 1786, the Estates, she then delivered to him, without then making known this claim, or setting up a contrary construction; and, considering that, not only the acts of assent and acquiescence aforesaid had a tendency to lull the Appellant Mary M. Bolling into a belief that her claim thereto would not be objected to, but that, also, the great lapse of time aforesaid may have, from the death of Witnesses, loss of Documents, and other causes, rendered the taking the account, required by the said Appellee Thomas T. Bolling, on any principles of certainty or justice, impossible, the Court is farther of opinion, that, under these circumstances, the construction aforesaid ought not to be disturbed, even if it were in strictness erroneous, nor the account, required as aforesaid, be taken. As to the pretension of the Appellee Thomas T. Bolling, that he only came to the knowledge of his rights under the Will aforesaid in or about the year 1798, the Court is of opinion, that, if he were even correct as to the extent of those rights, he should not be permitted to avail himself of the benefit of that alleged ignorance, nor be permitted to rely on it, under all the circumstances of this case, and, especially, as the Will under which he professes to claim had been long of record.
This view of the case makes it unnecessary, in the opinion of the Court, if, under other circumstances, it would have been required, that the representatives of John Tabb, or any others, should have been made parties.
The Court has the less difficulty in coming to this conclusion, because the Appellant Mary M. Bolling surrendered, to the use of her husband's estate, and the benefit of his children, a considerable sum then due to her from the estate of her father; because she made no claim of a distributive share of the estate of her deceased daughter Rebecca Bolling; because she had relinquished, to the Appellee Thomas T. Bolling, considerable sums, due from him to her, as Interest; because she had delivered up to him, on his coming of age, his full proportion of the residuary Slaves of the said Testator; because she furnished him, without account, with considerable sums, for his support and education, in Europe, more, probably, than she was bound to supply under his father's Will; and because she extended to him various other acts of liberality, all of which she would probably not have done, but in confidence that her construction of the Will aforesaid would not have been disturbed.
The Court is farther of opinion that the sale of the Dogwood Thicket Tract of Land ought not to have been impeached; first, because, if the Appellant Mary M. Bolling had an Interest during her life therein, as this Court rather at present supposes, the foundation of the alleged ignorance of the Appellee Thomas T. Bolling of his present right thereto is removed; and, secondly, because, if she had no right thereto under her husband's Will, yet it appears that she permitted him to offer to sell the fee simple Title thereof to others, thereby waving her claim aforesaid thereto, and finally not only gave him the fee simple price of this Land for the same, but more, probably, than he could have obtained from others.
The Court is therefore of opinion, and accordingly decrees, that the Decree in the suit claiming to set aside the sale of the Dogwood Thicket Tract of Land should be reversed with Costs, and the Bill dismissed; that the Decree dismissing the Bill of the Appellant Thomas T. Bolling against the Appellee Mary M. Bolling should be affirmed; and that the Decree in the suit of the Appellant Mary M. Bolling against the Appellee Thomas T. Bolling should be reversed with Costs, and that she should be decreed to recover against him, or his representative, the amount of his Bonds given to her, and not delivered up or paid as part of the purchase of the Dogwood Tract of Land, but without Interest thereupon during her life; the said Mary M. Bolling being proved to have admitted, that she had no other demand against the said Thomas T. Bolling, than the Bonds aforesaid, without Interest during her life time as aforesaid. And the said last mentioned suit is remanded to the Court of Chancery, to be finally proceeded in pursuant to the principles of this Decree.