Blake v. Hawkins

• Decision Date: 01 October 1878
• Citation: 25 L.Ed. 139,98 U.S. 315
• Parties: BLAKE v. HAWKINS
• Court: U.S. Supreme Court

98 U.S. 315

25 L.Ed. 139

BLAKE v. HAWKINS.

October Term, 1878

APPEAL from the Circuit Court of the United States for the Eastern District of North Carolina.

George Pollock, who was seised and possessed of a large estate, consisting of lands, slaves, and personal effects, died in 1839. He devised and bequeathed it all to his sister Frances, wife of John Devereux, by whom she had three children, Thomas P., George, and Frances Ann who intermarried with Leonidas Polk. George died leaving his children Elizabeth and Georgia surviving him, the former of whom is the wife of Grinfill Blake, and the latter of John Townsend.

On July 3, 1839, John Devereux and Frances his wife conveyed to Thomas P. Devereux in fee the real estate so devised subject, however, to charges as follows:——

'First, that the said Thomas P. Devereux, his heirs and assigns, shall, on the first day of March in each and every year during the life of the said Frances Devereux, pay to the said Frances, into her own hands, or according to her own order, and to her sole and separate use, and subject to her own disposal, as if she were a feme sole and unmarried, the yearly sum of $3,000.'

'Thirdly, that the said Thomas P. Devereux, his heirs or assigns, shall invest for, or pay to, the said Frances, at such times, in such proportions, and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed, or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000; but if the said sum of money, or any part thereof, shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed, or will, or writing in nature thereof, or by some other act give, grant, dispose, or direct any payment, investment, or application of the same, then the said sum of money, or so much thereof as shall remain not paid, given, granted, disposed, or directed to be invested, paid, or applied, shall be considered as lapsing, and the charge therefor as extinguished for the benefit of the said Thomas.'- On the same day John Devereux also conveyed to said Thomas the personalty bequeathed by said Pollock.

John Devereux died in 1844, and in 1845 his widow executed a 'deed of explanation,' which, after referring to that of July 3, 1839, is as follows:——

'And whereas in and by the same the sum of $50,000 was secured to the said Frances, together with an annuity of $3,000; and whereas the annuity was by the said Frances understood to be the interest of the said sum of $50,000, and not in addition thereto, and was to abate as the principal of the said sum was from time to time paid; and whereas doubts have arisen whether the said deed may not bear a contrary construction, and the said annuity be chargeable on the said estate over and above the said $50,000:

Now, these presents are to declare that the true meaning and intent of the part of the said settlement above referred to is, that the sum of $50,000, with the annual interest thereon, was to be hereby reserved to the said Frances, and that the said interest was to cease pro rata as portions of the said principal sum were from time to time paid and discharged, in the same manner as if the same was a debt due by the said estate, and that no annuity except the said interest was intended to be reserved by the said settlement to the said Frances.'

In 1849 she died. Her last will and testament, bearing date Dec. 23, 1847, was, after protracted litigation, admitted to probate in August, 1852. The first and introductory clause is as follows:——

'I, Frances Devereux, of North Carolina, . . . do make and ordain this my last will and testament, intending thereby to execute all powers vested in me, and enacted in any deed or deeds heretofore executed, particularly those powers created in my favor by two certain deeds settling and assuring the estate of my late brother, George Pollock, to my son, Thomas P. Devereux, dated some time in the month of July, in the year of our Lord eighteen hundred and thirty-nine, and executed by my late husband and myself.'

She bequeathed by the first five items five legacies, of $4,000 each, to five several charitable institutions; by the sixth, $500 to her executors for a charitable purpose; by the eighth $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified; by the twelfth, $500 to S. S. Souter, for a charitable purpose specified. There is no other pecuniary legacy, and no residuary devise or bequest. Thomas P. Devereux and others were appointed executors, but did not qualify as such. Seymour W. Whiting, who had been appointed administrator pendente lite, was, Nov. 16, 1852, appointed administrator cum testamento annexo. Her heirs-at-law and next of kin were her children, Thomas P. and Frances Ann, and her grandchildren, Elizabeth and Georgina. Her property at her death consisted of so much of the aforesaid $50,000 and the annuity of $3,000 per annum as she had not appointed or expended during her lifetime, upwards of sixty negro slaves, the growing crop and farming stock and utensils on her farm in Bertie County in that State, which she was cultivating jointly with a grandson, the household and kitchen furniture at her residence in Raleigh, and some small amount in cash on hand and petty debts due to her.

On March 26, 1859, the complainants, said Elizabeth and Georgina, filed their bill in equity against Thomas P. Devereux, Leonidas Polk and Frances Ann his wife, setting forth the foregoing facts, and further alleging that the said Thomas's pretended renunciation of his executorship, and the appointment of said Whiting as administrator with the will annexed, were as to the complainants wholly void and of no effect; that the said Thomas was accountable to them in equity, as executor, for their share of the assets of the said Frances remaining after the payment of her debts, funeral and testamentary expenses, and the legacies, which last, it was alleged, did not exhaust said assets, but left a large amount in his hands for distribution, to one-third of which they were entitled.

The bill alleges that said Thomas, both before and after his renunciation, intermeddled with her assets, and had the exclusive control and administration thereof; that he took possession of them immediately upon her decease, disposed of them from time to time, and converted them to his own use; especially that on or about the 7th of October, 1852, he, before the appointment of Whiting as administrator with the will annexed, caused fifty-seven slaves belonging to her estate to be appraised and divided between himself and Frances Ann Polk; and that he had then in his possession, or in the possession of his attorney or agents, the original paper or a copy thereof, containing the details of said appraisal and division; that said Whiting was appointed by the procurement of said Thomas and as a mere form, the latter becoming his bondsman; that Whiting, if he acted at all in the administration of said assets, did so entirely under the direction of said Thomas; that he never returned an inventory, nor rendered an account of his administration, and is now deceased; that said Thomas's renunciation was a contrivance to avoid being called to account; that he procured said renunciation to be accepted by a concealment and suppression of the facts above stated; that he purchased up the pecuniary legacies for about half their amount, and claimed for himself the profit derived therefrom; that he paid debts of the testatrix, and converted the residue remaining in his hands to his own use; and that her estate and effects were in fact administered and disposed of by him before the appointment of said Whiting in November, 1852.

The bill prayed for a discovery and for an account.

The defendants, Leonidas Polk and wife, entered an appearance, but neither demurred nor answered. The defendant Thomas filed his answer, admitting the main facts set out in the bill, but denying all fraud, and insisting that if, upon the proper construction of the deeds made to him, it is somewhat doubtful whether the yearly reservation of $3,000 was not intended to be a stipulation for the annual payment of the interest upon the sum of $50,000, such was the intention of said Frances, and if not expressed, it was a mistake in drafting them; that after the death of her husband she executed an instrument declaring such interpretation and intention; and that he is not liable to account for the said sum of $50,000, nor for the interest thereon, because she did not appoint the same by her will, and therefore the same lapsed for his benefit. He refuses to make any discovery, or to render any account of the same. He denies that he is accountable to the complainants as her executor; alleges that he renounced that office; denies that he intermeddled with the assets in any other manner than as is set out in his answer; and in this connection gives an account of his purchase of the pecuniary legacies from the several charitable institutions, and of some of the dealings and accounts between himself and Whiting, while the latter acted as administrator pendente lite, and after he became administrator with the will annexed. He filed other exhibits, the proceedings connected with the caveat of the will, showing his purchase of the legacies, and his conveyance of part of her slaves to the trustee of Frances Ann Polk, all executed before Whiting was appointed. He also filed exhibits showing accounts rendered to him by said Whiting.

The complainants excepted to the sufficiency of the answer, because it failed to set out whether he had not divided fifty-seven slaves of the testatrix between himself and Frances Ann Polk, on the 7th of October, 1852, before Whiting was...