Record Book F

Pages 213 - 315

Abstracted by Milly Wright on Jan. 2007 and 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” 1849-52

 

(Note: There is a great deal of information in this case on plantation society, particularly in regard to the role of women, on the aspirations of plantation owners to emulate the principles of chivalry (as shown in the will of Samuel Savage, and in the books that he owned), the role and treatment of slaves, plantation economy, people who were active in the community during this time period, plantation furnishings, interstate travel, legal manueverings, etc...) msw

 

Page 213

Martha E Savage Admx of Samuel G Savage decd vs Vincent M Benham

 

“Be it remembered that heretofore to wit on the 8th day of April 1845 Martha E Savage, admx filed her bill of Complaint in the Chancery Court for the 28th District of the Northern Division of the state of Alabama against Vincent M Benham, Geo. M Savage, Hervey Dillahunty, Behethaland Dillahunty, Samuel Johnson, John A Johnson (wrong name), Charles Dillahunty, Hervey Dillahunty Jr., Milly Dillahunty, Samuel S Dillahunty, Samuel J Rucker, Ann E Rucker, Matilda Rucker, and the representative of John T Savage, defendants in the words and figures following to wit.

 

Martha lived in Franklin County. She married Samuel G Savage on 6 February 1839 (when she was sixteen years old). Samuel died in Lauderdale County on 28 April 1840, intestate. Letters of Administration on his estate were granted to her by the Orphans Court of Lauderdale County. Samuel Savage the elder and father of her intestate, departed this life in said county of Lauderdale, where he had resided many years previous thereto, sometime in the month of October 1837 after having made his last will and testament, seized and possessed of a large real and personal estate, situated in said county, consisting of lands, slaves, stock, chattel property, money on hand, and notes and accounts due to him, in all of the value of $75,000.00. With his slaves and his land, he in his lifetime cultivated cotton, corn, etc. extensively and that by said last will and testament he nominated his son George M Savage, Finch P Scruggs and John Lorance his acting Executors and in the language of said will, Hervey Dillahunty, Finch Scruggs and Sidney C Posey consulting executors, all of them except the said George M Savage renounced the execution of said will.George M Savage proved the will before the Orphans Court on 4 December 1837 and “possessed himself immediately thereafter of all the property of said estate, real and personal. He never returned to said court an inventory of the property of said estate, which came into his hands, but on the 4th day of February 1838 he returned to said court an appraisement bill ... a paper containing a description of the tracts of land owned by said Testator in Lauderdale County ... which made up the plantation on which he resided at the time of his death.Charges that George did not make a true statement of money collected

 

Page 215

By the fourth item of said last will and testament said testator directed his executors to advance his younger children (meaning the complainant’s intestate and his son Tacitus) when they should arrive at twenty one years of age, by giving them as much property out of his estate as he had given his elder children upon their marriage or majority. And complainant states that said Testator had advanced his elder children as follows. To Behetheland Dillahunty he had given or advanced $3164.00, to Frances T Rucker $3180.00, to William T T Savage $2700.00, to Sarah Dillahunty $1400.00 and to George M Savage $1300.00. And although her said intestate arrived at full age on the 8th day of March 1838, the said George M Savage as such executor or otherwise did not, nor did he upon his marriage (which took place at the period above stated) advance him to any amount either in property or money out of said estate or otherwise, nor did he defray the necessary expenses of the schooling, boarding, education and living of her said intestate prior to his majority, but she states that many of the charges therefor have been paid by her as administratrix of her said intestate and some still remain unpaid, she having no means of said estate wherewith to pay.

 

Complainant further states to your Honor that the said George M Savage on or about the __ day of November 1842 clandestinely left the state of Alabama and has never to her knowledge returned, carrying with him nine of the slaves and nine mules and horses belonging to said estate, and as she has been informed has disposed of and converted them to his own use. And she charges that the property thus taken off by him to have been worth seven thousand dollars. She also states that the said George M Savage never did make any settlement with the Orphans Court of said county of Lauderdale of his transactions as Executor of the last will and testament of Samuel Savage decd, either annual or final.

 

Complainant further states to your Honor that a few days after said George M Savage absconded, one Vincent M Benham was appointed administrator of the estate of Samuel Savage decd with his will annexed (the Letters testamentary to the said George M Savage having been duly revoked) by the Orphans Court of said county of Lauderdale and that he has possessed himself of all the estate of Samuel Savage deceased except that portion thereof which (as above stated) was converted by the said George M Savage and since the grant of Letters of Administration to him he has employed the property of the estate of Samuel Savage in the cultivation of cotton, corn, etc. She states that he received some eighty or one hundred bales of cotton of the crop grown on the said testators plantation in 1842 and has sold the same for some $1700 or $1800 and has also sold and disposed of the crops grown on said plantation in the years 1843 and 1844 and of the crops of the last two years. He has rendered no account to the Orphans Court of said County of Lauderdale. She charges that the force on said plantation is capable of raising with reasonable management, 150 bales of cotton pr annum, and that that number of bales was raised on said plantation during each of the years of 1843 and 1844 and that the crops each sold for between three and four thousand dollars.Complainant further charges that the said Benham during his administration of said estate has sold from said plantation and as the property of said estate, stock, provisions, etc. annually at least three hundred dollars worth.

 

She further states that since the month of August 1842 until now the saidHervey Dillahunty and wife with their families, consisting of themselves and children, have resided on the plantation of said Saml Savage decd and have been supported therefrom with all their family supplies which together with the dwelling houses occupied by them has been worth annually from five to six hundred dollars, and she is also advised and so charges that the said Dillahunty and wife have during all that time had the exclusive use of four of the negroes belonging to the estate of Saml Savage decd as servants to wait on themselves and families and that too with the approbation and consent of said Benham, and that the said Benham never has accounted to said estate therefor, and she charges the annual value of the hire of said slaves, to be worth from three to four hundred dollars, that said Dillahunty is entirely insolvent and has been ever since he removed to said plantation and known so to be by Benham.

 

She said that “none of the items therein charged as credits to said administration and allowed by said court, were debts due by said testator in his lifetime and paid by said administrator, nor were any of them charges necessarily incurred by said Benham in his administration of said estate except the charge of $300. paid to W R Garner for overseeing.

 

Complainant further sheweth unto your Honor that by the Seventh Item of the last will and testament of said Testator it is provided that at the death of his wife Ann R Savage, all his property of every kind and description, then in the hands of his executors, real and personal should be equally divided between his children, that is to say, in the language of said Will, one seventh part thereof to the children of his daughter Behetheland Dillahunty or the survivors of them in equal proportions, one seventh to the children of his deceased daughter Francis J Rucker or the survivors of them, upon the condition mentioned in said will, one seventh to Saml Savage Dillahunty, an infant child of his decd daughter Sarah N Dillahunty, one seventh to his son Wm F Savage, one seventh to said George M Savage, one seventh to Saml G Savage, complainants intestate, and one seventh to Tacitus Savage. But in making said division his executors are expressly directed to charge to the portions of his grand children the advances which said Testator had made to their parents, and to the portion of such of his children as had been advanced, the portions he had advanced to them, and also to charge against the portions of the said George M and the children of the said Behetheland the nett annual proceeds of said plantation required by the fifth Item of said will to be paid over to said George and Behetheland, so as to make up to his two younger children the said Samuel Savage, complainants intestate and John Tacitus Savage out of his estate, or the residue thereof, for what his other children may have been advanced in his lifetime and received from his executors in the annual division of the crops as required to be made by the 5th Item of said will. ...

 

Complainant further states that the apprehension entertained and expressed by said Testator, in his will of the death of his son Wm F Savage was well founded, and she states that he did depart this life before the death of his Father, so that the legacy to him is lapsed. ...

 

Complainant further represents unto your Honor that the widow of said Testator Ann R Savage departed this life on the 7th day of October 1840 (1841, according to her daughter, B.D.), when by the provisions of his will distribution should have been made of said estate, according to the method therein prescribed she states to your Honor that she has since then frequently applied to the said George M Savage, whilst he was executor, and since then to the said Benham as administrator of said estate to have the portion of her said husband and intestate therein set apart to her but they have always refused, falsely pretending said Estate is still in debt, and that complainant is not entitled to any interest therein. But complainant charges that said Testator at the time of his death owed nothing or comparatively nothing and that the good debts due to him and collected by the said George M Savage as such Executor were more than sufficient to pay off all the indebtedness of said estate, and that the proceeds realized by said Benham, since his administration of said estate from the crops grown on the plantation of said estate, she charges have been more than sufficient to discharge every debt, real or imaginary which in fact or in his estimation may exist against said estate.But she charges that said Benham combining and confederating with said Hervey Dillahunty, who is the real manager in the administration of said estate, to cheat and defraud her intestates estate, out of its residuary interest in the estate of Samuel Savage the Elder decd has been misapplying the means of said estate to the payment of debts contracted by the said George M Savage and chargeable solely to him, and for the benefit indirectly of said Harvey Dillahunty who is one of the securities of the said George M Savage for the faithful management of the estate of said testator and to the discharge of debts created by said George M Savage which were not a charge upon said estate, of such character are most if not all the debts with the exception of the payment made to Garner, which purport to have been made by the said Benham, in his pretended account herein before refered to as exhibit E.

 

She said that she had always been ready and willing to tender to Benham a refunding bond with sufficient security to indemnify him in paying over to her the legacies due her.Complainant further shows unto your Honor that the other and only security besides the said Hervey Dillahunty of the said George M Savage for his faithful administration of his father’s estate or execution of the provision of his will was Jno B Dillahunty (the father of Samuel Savage Dillahunty and brother of the said Hervey) who departed this life insolvent on or about the ___ day of August 1841 of which the said George M Savage and Hervey Dillahunty had full knowledge the latter having become his personal representative, and the said Hervey Dillahunty and the said George M Savage, the said Dillahunty being then in failing circumstances and the said George entirely insolvent combining and confederating to cheat and defraud those entitled as residuary legatees in said estate, particularly complainant as admx of the estate of Saml G Savage pretending that the said George M did not carry or intend to carry into effect the 5th Item in said will so far as a division of the nett proceeds of the cotton crops of said estate, was concerned,, although the said Dillahunty in right of his wife had received therefrom from time to time from the said Savage, in all the sum of $773.83, (should be $7738.3?) including interest up to the 25th day of July 1842, and in the character of husband of said Behetheland as he rightfully might, and did, yet with a fraudulent view and design of enhancing the interest of his wife and children in the residue of said estate upon its final division they the said Savage and Dillahunty fraudulently transformed the receipts of said money by Dillahunty from said Savage into a debt due from himself to the estate of Saml Savage the Testator, pretendingly for monies loaned by said Savage in the character of executor aforesaid and on the said last mentioned day the said Dillahunty fraudulently confessed a judgment therefor in the County Court of Lauderdale County to the said George M Savage as Executor, his property then being covered by executions so that the whole of said Judgt could not be, and has turned out was not realised by some two or three thousand dollars. ...

 

She wanted Behetheland’s share to be diminished by such sum as the said Hervey D may have received from George M Savage from the proceeds of crops grown on the plantation.Your complainant shows unto your Honor that the children of said Behethaland Dillahunty are Samuel Johnson and John A Johnson (wrong given name) who are her children by a former marriage, the former of whom is 21 years of age, the latter a minor over fourteen years of age, Charles Dillahunty, Hervey Dillahunty Jr. and Milly Dillahunty, children by her marriage with the said Hervey Dillahunty all of whom are minors under fourteen years of age.The children of Francis Rucker decd are Samuel James Rucker, Ann Eliza Rucker, and Matilda Rucker, all of whom are minors under twenty one, but over fourteen years of age, and that said Vincent Benham is their guardian. She further states that John Tacitus Savage departed this life in Lauderdale County intestate over 21 years of age, on or about the 2nd day of March 1841, and that no administration is had on his estate.

 

Complainant further states she cannot make all residuary legatees in said estate co-complainants with her in this suit for the reasons that the interest of the said Behetheland Dillahunty and her children are to some extent adverse to hers in the subject matter herein set forth, and the interest of the children of Francis Rucker deceased in the estate of said Testator is controlled by the said Benham as their guardian, and the said Saml Savage Dillahunty is a minor of very tender age under fourteen years of age living with the said Hervey Dillahunty and controlled by him, and the interest of the said George M Savage and Hervey Dillahunty is adverse to that of the complainants in some of the matters here set forth.She asked that all the other legatees (everyone lived in Lauderdale county except the Ruckers, who lived in Tennessee) be made defendants in the bill, and that George M Savage, Hervey Dillahunty and Benham make an accounting.Martha E SavageWm Cooper and S W Probasco solicitors for complainant

 

Page 221

Inventory of Samuel Savage’s Estate

 

One note on Finch Scruggs $1200.00

One note on W Fitzgerald $100.00

2 notes on J Baughs, whole amount $575.00

100 head of shoats 250.

14 sows and 90 pigs 90.00

6 sows 12.00

11 mules 825.00

1 horse 25.00

2 carriage horses 200.00

1 gray horse 75.00

4 colts 120.00

1 colt 40.00

1 sorrel mare 100.00

1 roan horse 75.00

1 sorrell mare 100.00

1 sorrel filly 30.00

1 brown horse 75.00

1 bay horse 50.00

1 bay mare 100.00

64 head of cattle 448.00

80 head of sheep 160.00

25 head of goats 25.00

13 head of hogs 58.50

500 Bbls corn 1250.00

40,000 fodder 300.00

150 bushel oats 60.00

5 stacks oats 40.00

1 carpet, 25 yds $31.25

1 side board 25.00

1 pr dining tables 20.00

1 pr dining tables 10.00

1 cupboard 12.00

1 lot crockery 30.00

8 Windsor chairs at .75 each 6.00

1 bed and furniture 35.00

1 bed and furniture 40.00

2 bed steads 10.00

1 fender and andirons 3.00

1 bed and furniture 50.00

1 bed stead 8.00

1 clock 50.00

1 side table 10.00

1 work table 5.00

1 wash stand 2.00

13 blankets 20.00

3 white counterpaines 25.00

29 cotton sheets 29.00

1 calico spread 4.00

4 checked counterpanes 4.00

2 pr linen sheets 4.00

4 Marseilles counterpanes 19.00

1 quilt 1.00

2 table toilets .50

7 window curtains 5.25

1 lot table cloths 30.002

4 pillow slips 3.001

7 towels 4.00

1 thermometer 1.50

6 rush bottom chairs 1.50

3 Windsor chairs 2.25

Shovel and irons 2.00

1 water cart 12.00

1 wagon 25.00

2 yoke oxen 50.00

1 looking glass .25

1 Settee 3.00

Table, Cooper ware and wash pan 3.00

1 safe 5.00

1 lot bottles 2.00

1 bed and furniture 40.00

1 bed and furniture 40.00

1 curtain bedstead 5.00

1 common bedstead 1.50

11 rush bottom chairs 2.75

1 table and glass 3.00

1 Desk and lot books 12.00

1 trunk and sugar chest 2.00

1 Travelling trunk 5.00

1 glass .75

1 candle stand 1.00

1 tea kettle and irons 3.00

1 carpet 3.00

1/2 doz Chambers and wash bowl 3.50

1 lot of old lumber 5.00

1 lot of old lumber 10.00

1 bed and stead 5.00

8 pillows 16.00

1 bed and stead 15.00

1 small bed stead 3.00

1 bathing pan 5.00

1 reel and spooling frame 3.00

2 yoke of oxen 80.00

1 wagon 25.00

Kitchen Furniture

1 brass kettles 12.00

12 pots, ovens and skillets 21.00

5 pr pot hooks, waffles and gridirons 3.00

14 Dishes part damaged 4.00

1 lot tin ware 1.00

2 saws 1.50

1 lot kitchen ware 4.00

1 trough of lard 50.00

2 1/2 barrels of lard 40.00

340 lbs cake soap 51.00

1 lot soft soap 10.00

1 tough soap fat 20.00

1 barrel rectified whisky 38 gal 28.50

20 gal whiskey 16.50

2 kettles and pot 4.00

100 lbs loaf sugar 16.00

1 Tub and 2 pails .50

1 lot of Dairy ware 2.00

1 lot of candlesticks 1.00

1 lot sundries 1.00

12,000 lbs pork 600.00

1 lot kettles 20.00

1 lot blacksmith tools 25.00

1 carriage 150.00

1 cutting knife 25.00

1 lot of plows 45.00

1 carryall 25.00

11 axes 10.00

 

Negroes:

Man: Josiah, Seule, Jim, Simon, Phill, Charles, Dick, Jack, Pleasant, Jerry, Jim, Frank, Henry, Carter, Andrew, Washington, Dave, George,

Boy: Lawney, Stephen, Willis, Nelson, Friday, Harry, Bolivar

Man: Billy, Squire, Jack

Boy: Morris, Glascow, Moses, Jim Duckett

Girl: Milly

Woman: Mariah

Boy: Randal

Woman Harriet, and children, Clarissa and Aggy

Aggy and children, Pat, Polly

Woman and 2 children: B Charlotte

Woman and 2 children: L Charlotte

Girls: Martha and Henrietta

Woman: Eveline

Girl: Bet, Celia

Boy: Alex

Girl: Caroline

Boy: Abram

Girl: Elinor, Ann, Florida, Diana

Boy: Isaac

Girl: Angelina

Old man: Abram

Man: Morris

Old man: Kerbo, Lewis

Old woman: Polly, Rachel, Sally

Woman and 2 infants: Hannah

Boy: Lawney

 

Total value of property, including slaves: $38,288.00

Appraised by: James W Stewart, James Noel, Albert M Scruggs, John Key, James KeySworn to 11 February 1838

 

Page 226

 

Property:NE part of Fractional Section 29 in T3 R12 containing 158.20 acres, Granted by the U. S. Febry 6th 1822

South half of Fractional Section 32 in T3 R12 containing 229.20 acres, Granted by the U.S. at the same time

East half of NE/4 of Fractional Section 31 T3 R12 containing 80 acres

NE part of Fractional Section 32 T3 R12 containing 158.39 acres

West half of NW part of Fractional Section 32 in T3 R12 - 80.32 acres

West half of the SW part of Fractional Section 32 T3 R12 - 80 acres

South East part of Fractional Section 29 T3 R12 - 158.22 acres

Fractional Section 5 in T4 R12 - 36.24 acres

All of the above lands were granted by the US.

 

The following were granted by the state of Alabama:

West half SW quarter Section 33 T3 R12 - 80 acres

NW/4 S28 T3 R12 - 160 acres

W/2 of SW/4 S21 T3 R12 - 80 acres

E/2 of SE/4 S21 T3 R12 - 80 acres

W/2 of SE/4 S21 T3 R12 - 80 acres

South half of fractional Section 29 T3 R12 containing __ acres

North half of fractional section 29 T3 R12 containing __ acres

W/2 of SW/4 of S28 T3 R12 - 80 acres

E/2 of SW/4 of S28 T3 R12 - 80 acres

W/2 of SE/4 S28 T3 R12 - 80 acres

E/2 SW/4 S21 T3 R12 - 80 acres

 

Behetheland M Dillahunty, George M Savage, Francis, Matilda, Samuel, James and Ann Eliza Rucker, children of Frances T Rucker, Samuel Savage Dillahunty, son of Sarah N Dillahunty. (These were, apparently the living heirs.)

 

There is now about 80 negroes, among them some are old and a good many children. Out of the whole number about 50 are able to labor.

 

Page 227

 

Samuel Savage’s Will

 

In the name of God Amen, I Samuel Savage of the County of Lauderdale and State of Alabama being of sound mind and memory and knowing the uncertainty of human life, and the necessity of arranging while I am blessed with a capacity therefor, do hereby made, ordain and publish this my last will and testament thereby revoking and annulling all others by me heretofore made and published.Item first It is my will and desire that all my just debts be paid by my Executors hereinafter mentioned as soon as practicable after my death.

 

Item Second To my dearly beloved wife Ann R Savage I give and bequeath one negro man named Jonah to be disposed of according to her own desire, at her death. I also give to her my said beloved wife Ann R Savage, the choice and right of living upon my homestead plantation upon which I now reside, during her natural life provided her widowhood continue, to be taken care of and liberally supported, in the same style and manner as she has heretofore lived during her coverture, and to have the full and complete enjoyment of all necessary family comforts, but nevertheless upon the condition anad express consideration that the provision made for her in this item shall be accepted by her in lieu of dower or dividend of my real and personal estate, my executors are especially charged with the faithful execution of this settlement in favor of my beloved wife Ann R Savage and are further authorized and directed to allow to her from time to time out of the proceeds of the crops made on the homestead plantation or if any monies arising from my estate such sum or sums as she may necessarily and reasonably require for pocket money or to provide for her such necessaries and comforts as she has been accustomed to have and enjoy.

 

Item third It is my will and intention to give and bequeath the residue of my estate, both real and personal in the manner and form hereinafter specified viz, to my dear children Behetheland Dillahunty, William T T Savage, George M Savage, Samuel G Savage, and John Tacitus Savage, and to my grand children hereinafter mentioned as follows, To my daughter Behetheland, I bequeath the property already advanced to her, as her marriage portion; to my son in law John B Dillahunty I give and bequeath the personal property heretofore advanced to him, the land which he at present occupies, being a part of my homestead plantation upon which I have permitted him to remain as a tenant at will.In the future and final division of my estate as hereinafter directed the advances already made to any of them which I have charged in a book kept by me for the purpose, shall be deducted from the portion of the child or grand child so advanced. In this book I have charged all the property I have given to any of my children, at the prices which I intended they should receive the property so advanced in order that I might finally make an equal distribution among my children and the issue of such of them as it has pleased the Almighty Disposer of events to take from me. This book is marked A, and will be sealed up and committed to the custody of my beloved wife, Ann R and shall be taken and received as evidence o the value of such property as I may have advanced to any of my children.

 

Item fourth My tract of land, I wish to remain undivided and my plantation conducted in the same manner as I have carried it on, untill the death of my beloved wife Ann R, and I do hereby impower my executors to do all and every thing necessary for the purpose of keeping up my plantation by keeping the negroes, stock, tools etc on the plantation, by employing overseers, buying and selling stock and farming utensils necessary for the culture of the same and in all things to act for the prosperity of the plantation affairs, as I have been accustomed to do.When my younger children arrive at the age of twenty one years, it is my desire that they be advanced by my executors, by giving them as much property as I have given my elder children upon their marriage, or majority, but in making this alotment, I charge my executors to do it with a special regard to the management of my plantation to the best advantage.

 

Item Fifth It is my will and desire that the nett proceeds of my plantation from the crops after deducting what is necessary for the support of my beloved wife as directed in the 2nd Item and for the support, boarding and schooling and clothing of my younger sons (Samuel and Tacitus) shall be annually divided between my children who are married or of full age and the amount thus paid over to them shall be charged to each in accordance with the plan I have pursued and in the final division of my estate as herein before directed, the younger children who may not have had the benefits of such dividend are to be reimbursed their portions, with lawful interest out of the property to be divided and in the division of such annual proceeds, regard is to be had to my previous directions.

 

Item Sixth Should my sons Samuel or Tacitus or both of them conclude to study professions, I wish my executors to pay the expenses thus incurred, to be deemed a part of their education, for which my estate generally is to be made chargeable and not their portions or distributive shares of the same.

 

Item Seventh Whereas Samuel James Rucker, Matilda Frances Rucker and Ann Eliza Rucker, orphan children of my deceased daughter Frances T Rucker have already become heirs and inheritors of that portion of my estate advanced to their mother as her marriage portion the same being valued and charged in my account against her in the book A. It is my will that the said Samuel James, Matilda, Frances and Ann Eliza Rucker shall stand in the place of their deceased mother and upon the final division of my estate shall jointly receive such portion of my real and personal property as their mother if living would have been entitled to, deducting that portion already advanced to their deceased mother. But I make this bequest upon the condition and express consideration that the same is to be in lieu of any and of all claims or demands they may have, or be supposed to have against the estate of Charles L Savage decd or against his securities, as the administrator of the decd father Winston T Rucker knowing and believing as I do that the estate was fairly administered by Charles L Savage in his lifetime and since his death his book, and papers have been by some unknown person so torn and mutilated that they cannot be understood. In the event of the death of either of these my grand children, the portion of the deceased is to go to the survivor or survivors, and should all three die before the final division of my property their portion is to revert to the bulk of my estate, to be divided among my surviving children or their heirs. Such of my slaves as may fall to the portion of Matilda, Frances and Eliza Ann Rucker, as well as their dividend of my land I give to them during their natural lives, to have the use and possession of the same while they live with remainder over to the heirs of their bodies lawfully begotten in wedlock and in default of such issue the said land and negroes shall become the joint property of my surviving children or the survivors of them.

 

Item Eighth To my grandson Samuel Savage Dillahunty son of my deceased daughter Sarah Dillahunty I give and bequeath the portion which his mother if living would have been entitled to upon the final division of my property deducting what I have already advanced to his mother as her marriage portion which will appear from my account in book A which “child portion” of my estate is to descend to said Samuel, upon the death of my beloved wife, Ann R Savage, provided he shall then be living, or if he shall die without issue before the final division of my estate his portion shall be retained by my executors, and divided among my surviving children or the survivors of them. This bequest is made to my grand son Samuel Savage Dillahunty upon condition that his father, John B Dillahunty shall consent to commit to my charge the rearing and education of my grand son Samuel Savage Dillahunty.

 

Item Ninth The portion of my estate to which my daughter Behetheland Dillahunty may be entitled upon the final division of it at the death of my wife, should my said daughter Behetheland have departed this life, shall be distributed among her children equally or the survivors of them share and share alike by my executors in the meantime my daughter Behetheland shall be entitled to receive from my executors her share of the annual nett proceeds of the profits of my plantation as directred in the 5th Item of this my last will and testament.

 

Item Tenth Should my son William T T Savage (as I have reason to apprehend) be no longer among the living his portion of my estate, ascertained by the mode I have prescribed of deducting advances made to him, shall be divided between the rest of my children and grand children in the mode already expressed, but should ever my son William T T Savage appear to claim his equal share of my property he shall be entitled to it altho it may have been distributed among my other children and grand children.

 

Item 11th Upon the death of my dearly beloved wife it is my will and desire that all my property of every kind and description, both real and personal then in the hands of my executors shall be equally divided between my children, that is one seventh of it shall be given to the children of my daughter Behethaland Dillahunty or the survivors of them in equal proportions, one seventh to the children of my deceased daughter Frances T Rucker or the survivors of them upon the condition and limitations expressed in the Seventh Item of this my will, One seventh to Samuel Savage Dillahunty as directed in the Eighth Item, One seventh to my son William T T Savage, One Seventh to my son George M Savage, One seventh to my son Samuel G Savage, and one seventh to my son John Tacitus Savage, care being taken by my executors to deduct what has been already advanced to each of my children as charged in book A before the dividend is struck, and to make up to Samuel and Tacitus for what the others may have received from the annual crops as directed in the 5th Item. And for the purpose of giving satisfaction to my children and grand children, and to prevent all differences it is my will and desire that my executors nominate three intelligent and disinterested persons, who shall proceed to lay off and divide to each one of my children and grand children their distributive share of my estate, under this my will, according to their best judgement of the value of the property and being governed by my instructions in relation thereto expressed in this my last will and testament, and the division thus made between my heirs shall be binding upon them. I wish no controversy, or laws not to arise between any of my dear children or grand children.

 

Item 12th In dividing out the several portions of my estate under my will, it is my wish to prevent unfriendly feelings amongst my family and to promote that brotherly affection and dutiful regard which should ever exist amongst brothers and sisters, parent and children. And for that purpose, I do most earnestly entreat my dearly beloved children to be forbearing, kind and affectionate toward each another and dutiful and obedient to their tender and affectionate step mother obeying and taking her counsel, executing her wishes, and doing all in their power to render her old age comfortable and happy, not forgetting that she was the affectionate wife and companion of their father.I wish and advise them to be conscientious towards their creator and just and respectful to their fellow men. It is my ardent wish that my sons use their best efforts to become useful and ornamental members of society, an honor and comfort to their aged and affectionate step mother and the pride and protection of their dear sisters.And when my dear children shall have received their portions of my estate I earnestly hope that they will not forget the above as the advice of a friend and a Father speaking from the grave, where he can no longer be present to aid them by his counsel, or strengthen them by his example.

 

Item 13th Lastly I do hereby nominate and appoint my son George M Savage, and friend Finch P Scruggs and John Lorance as the acting Executors of this my last will and Testament, and I nominate and appoint my friends Hervey Dillahunty, Sidney C Posey and Finch Scruggs Sr. as advising Executors to my will to counsel with, and advise my acting Executors whenever they may deem it necessary to the execution of any part of the same, and the decision of a majority of the above named consulting Executors shall be decisive and final. And I do also nominate and appoint my son John Tacitus Savage when he shall have arrived at the age of twenty one years one of the acting Executors of this my last will and testament.In testimony of each and all of the foregoing pages of this my last will and testament, I have subscribed my own proper signature at the bottom of each page, and hereunto in like manner this 12th day of May, in the year of our Lord, 1836.

Samuel Savage

 

Signed by Samuel Savage in the presence of us who have in the presence of each other subscribed the foregoing sheets with our own proper signature, as witnesses to this Will John Key, Moses Wood, William A Scruggs

 

December 4, 1837 - Will of Samuel Savage admitted to Probate.

 

Recorded December 7, 1837 in Will Book A.

 

Page 231

 

1838 Amount of Sale Bill of Samuel Savage’s Estate

Among buyers, for books:

J T Savage 1 Vol. American Biography $10.00

J T Savage 1 Walkers Dictionary 3.00

H Dillahunty Clark Commentary 2.75

Ely South 1 Medical Work 1.50

J T Savage History England .37

H Simmons Chitty’s Blackstone .25

E South Algebra .12

J T Savage 7 Vol. Ancient History 4.37

H Dillahunty 5 Vol Malte Brown? Geo. 5.00

W Scruggs Wesley’s Sermons .75

H Dillahunty 2 Vol. Ancient Geo .25

H Dillahunty 2 Vol. History South Carolina .31

Jas Noel Gibson Surveying .25

Jas Noel Virgil .12

Jas Noel Virgil . 12 1/2

Morris Whitmire History Martyrs .50

Jas Noel Horace .12

J B Dillahunty Constitution U.S. .31

S Flint 1 lot books .25

E South 2 books .25

S Flint 1 lot books .43

E South 1 lot books .12

Thomas Nail 1 Medical Work .13

E South 1 lot books .06

 

Page 231


Sale of items from Samuel Savage’s Estate
November 1, 1838

John B Dillahunty 1 side board 16.00
John B Dillahunty 1 small table 3.00
Hugh McClusky 1 table 4.00
Hervey Dillahunty 1 lot crockery ware 3.00
Nathan Lee 1 lot dishes 1.75
Hugh McClusky 1 lot dishes .50
John Shone 1 lot dishes 2.62
Hervey Dillahunty 1 sett china 10.00
Willis Haygood 1 lot crockery ware .56 1/4
Willis Haygood 1 lot crockery ware .56
Stanton Flint 1 lot plates .75
S Dameron 1 lot plates .87
H Dillahunty 1 lot plates .50
B P Brown 1 lot crockery ware .25
S Dameron 1 lot plates .62 1/2
A M Scruggs 1 lot cup plates .50
Finch Scruggs 2 salt cellars .25
Nathan Lee 2 pitchers .50
Nathan Lee 2 pitchers 1.00
B T Karsner 1 lot table spoons 1.50
Henry Simmons 1 lot tea spoons 2.25
A M Scruggs 1 lot tea spoons 6.12 1/2
J B Dillahunty 1 lot tea spoons 9.75
A M Scruggs 6 table spoons 19.00
Henry Simmons 6 table spoons 20.00
J T Savage Bed and furniture 29.00
H Dillahunty 1 bed, bedstead and furniture 50.00
A M Scruggs 1 counterpane 7.75
Nathan Lee calico spread .75
H McClusky 2 checked counterpanes .50
J B Dillahunty 3 checked counterpanes .75
Nathan Lee 3 counterpanes 1.25
R Kernachan 1 carpet 24 1/4 yds @.75 18.19
J T Savage 1 counterpane 6.00
A M Scruggs 1 counterpane 1.50
J B Dillahunty 1 quilt .50
A M Scruggs 1 calico spread 2.00
Nathan Lee 1 pr blankets 2.50
J B Dillahunty 1 pr blankets 4.25
H Dillahunty 1 pr blankets 7.00
H Dillahunty 1 pr blankets 3.00
A M Scruggs 1 pr blankets 8.00
H Dillahunty 1 blanket 4.00
A M Scruggs 3 pillows 1.75
L Dameron 4 towels .38
R Kernachan 1 towel .50
J T Savage 1 pr sheets 1.25
A M Scruggs 1 pr sheets
H Dillahunty 1 pr sheets 1.75
J B Dillahunty 1 pr sheets 1.00
H Dillahunty 1 pr sheets 1.00
J B Dillahunty 1 pr sheets .25
S Dameron 1 pr sheets .62
Nathan Lee 1 pr sheets .25
A M Scruggs 1 pr Diaper table cloths 5.00
A M Scruggs 1 pr diaper table cloths 7.00
H Dillahunty 1 pr diaper table cloths 5.00
J B Dillahunty 1 pr sheets .75
Nathan Lee 1 pr sheets .50
Nathan Lee 1 pr sheets .75
J B Dillahunty 1 pr cotton sheets? .50
James Noel table cloth .50
A M Scruggs 1 pr sheets 2.25
Jas Noel window curtains .25
A M Scruggs 1 pr dining tables 27.00
R Kernachan 2 window curtains 2.50
J B Dillahunty 1 settee 5.50
R Kernachan 6 Windsor chairs @ .621/2 3.75
R Kernachan 6 Winsdor chairs @ .50 3.00
H McClusky 1 cupboard 6.25
H Dillahunty 28 glass tumblers 3.50
S Dameron Sett of castors .75
S Dameron 2 pitchers .38
John Shane 2 brass candle sticks .62
V P Brown 4 candlesticks .18
H Dillahunty 2 candlesticks .50
S Flint 1 lot knives, forks and waiters 2.75
J T Savage 1 vol American Biography 10.00
J T Savage 1 vol. Walker’s Dictionary 3.00
N Parish 1 sugar chest 2.00
Ely South 1 medical work 1.50
Willis Hagood 1 lot bottles .37
N Lee 1 lot bottles .25
R Kernachan 1 bone saw .38
N Lee 2 trunks .25
S Dameron 1 trunk .37 1/2
N Lee 1 trunk .25
J B Dillahunty 2 trunks .25
R Kernachan 1 pr draw bellows .38
R Kernachan 1 jug .25
James Noel 1 lot jars and jugs .63
R Kernachan 1 bed pan 2.25
J B Dillahunty 1 Demijohn .50
J B Dillahunty 1 wash stand and bowl 3.50
A M Scruggs 1 bed and furniture 40.00
H Dillahunty 1 candle stand 1.50
Jas Noel Small table 2.25
H Dillahunty Clark Commentary 2.75
J T Savage History England .37
H Simmons Chitty’s Blackstone .25
E South Algebra .12
J T Savage 7 Vol Ancient History 4.37
H Dillahunty 5 vol Malte Boun? Geo 5.00
W Scruggs Wesley’s Sermons .75
H Dillahunty 2 vol Ancient Geo .25
H Dillahunty 2 vol History South Carolina .31
Jas Noel Gibson Surveying . 25
Jas Noel Virgil .12
Jas Noel Virgil .12 1/2
Morris Whitmire History Martyrs .50
Jas Noel Horace .12
J B Dillahunty Constitution U.S. .31
S Flint 1 lot books .25
E South 2 books .25
S Flint 1 lot books .43
E South 1 lot books .12
Thomas Nail 1 medical work .13
E South 1 lot books .06
J B Dillahunty Bed and bedstead 20.00
A M Scruggs 1 Desk 23.00
R Kernachan 2 chambers .36
Jas Noel 3 chambers .38
J B Dillahunty Bedstead and cord .25
R Kernachan 1 small bedstead and cord .25
H Dillahunty Bathing Pan 8.50
R Rice 1 kettle 1.25
H Dillahunty 2 kettles 2.50
Jas Noel 2 kettles 2.00
S Fling 1 pot .75
E South 1 pot 1.75
R Kernachan 1 pot 1.25
S Flint 1 pot .50
Jas Noel 1 pot .50
Jas Noel 1 oven .50
Jas Noel 1 oven 2.13
R Kernachan 1 oven .75
J B Dillahunty 3 ovens .50
H Dillahunty 1 brass kettle 1.25
Jas Noel 1 pot rack 1.00
H Dillahunty 1 pr andirons 1.50
Jas Noel 1 pr andirons 1.00
S Flint 1 pot hook .25
J B Dillahunty 1 wash tub .87
J B Dillahunty 1 mortar and pestle .63
W Compton Grid iron and waffle iron .63
H Dillahunty 1 Toaster .50
J B Dillahunty 1 lot tin ware .87 1/2
W Compton 1 lot tin .62
H Dillahunty candle moulds .63
J B Dillahunty lot tin ware. 63
J B Dillahunty 1 water pail .25
S Dameron 1 Demijohn .25
R Rice 5 jars and 1 pitcher .13
Jas Noel 4 jars 1.25
Jas Noel 3 jugs .62
Jas Noel 2 jugs .87
H Dillahunty 1 stone churn 1.88
John Dillahunty 1 lot wool No price given
E South 22 lbs wool @ 28 cents 6.16
R Kernachan 44 lbs wool @ 27 cents 11.88

(No total given)
 

 

Page 235

This certifies that the foregoing inventory of the household and kitchen furniture belonging to the estate of Samuel Savage decd is a correct list of all of said property together with the sale of the same and the names of the purchasers. Sworn to and subscribed before me this 22nd day of November 1839 George M Savage, Executor
John T Haraway Judge, Lauderdale County Court, Alabama

I Wiley T Hawkins Clerk of the County Court of said county and state do hereby certify that the above and foregoing pages is a true and perfect transcript of Sale Bill of the Estate of Samuel Savage deceased as returned by George M Savage Executor of said Estate and now on file and of record in my office.W T Hawkins -  March 21, 1845

Page 235
Accounts paid for the estate

1842 Cash paid Samuel T Johnson for attending to plantation $6.50
1/26/1840 Advances to H Dillahunty to defray expenses to Washington to 
attend to the suit Taylor’s heirs vs Estate $252.00
2/18/1840 Doct J W Stewart Medical Bill for Estate $102.82
5/3/1840 Hervey Dillahunty for attending district court $20.00
1/24/1843 Askew Taxes on estate $52.23
6/24/1843 Cash paid Negro midwife for one of the negroes $5.00
10/23/1843 Barker and Dillahunty for shoes for negroes $27.00
9/22/1843 Midwife fee $3.00
8/1843 James Irvine in part for law fees $192.00

Other accounts paid.

Page 237
April 21, 1844
Wm Cooper and S W Probasco, Solicitors for Martha E Savage,, made exception to the expenses listed by Benham in regard to defending the suit of Taylors heirs vs said estate - about $1500. paid to H Dillahunty, John Sargeants, Jno. Simpson, and Charles Gookin.

Cash advanced to H Dillahunty to defray expenses to Washington to attend the Suit of Taylors heirs vs said Estate $252.00
John Sargeants professional services in Supreme court - not vouchers explaining therefor
$210.00
Exchange on above bill 52.55
Jno Simpson & Co a/c vs said Estate 407.87
Charles Gookin acct vs said estate 441.07
H Dillahunty for attending Supreme Court 150.00

Page 239
Exhibit H
May 21st 1836
This Book contains my charges and advancements made to my several children in my lifetime which is refered to in my will Sam Savage

September 1822, I gave to Cathy Johnson to be taken out of her part I may leave her in my will after my death

Two Negroe girls Lucy and Kid $450.00 $900.00
1 Boy John 400.00
3 Fine Horses $150. each 450.00
Cash on your starting to Carolina 235.00
Cash paid Conly for Johnson Horse 29.00
Cash on returning in 1824 September 300.00
Cash sent you in a letter by Mr. Hitt 500.00
Cash paid John Duckett for his care in moving you from Carolina 100.00
One Negro girl Louisa 250.00

Frances Rucker

Given to her to be taken out of her part I may leave her in my will after my death

1 Girl Polly $400.00
1 Girl Mary 250.00
1 Woman Rose 500.00
Goods, Sugar and coffee 70.00
1 Gig 185.00
1 Bed, Bedstead, furniture 135.00
Cash given at Mrs. Ruckers to buy a horse 150.00
Bacon, Sugar and coffee 40.00
House and Lot in Florence 900.00
Sundries given at different times 500.00

Page 240
W F T Savage
To be taken out of his part of what I may leave him in my will after my death

Cash let you have on your starting to Carolina the first trip $200.00
Cash give you when you went into business $2500.00

Sally N Dillahunty
To be taken out of what I may leave her in my will after my death

One Negro Girl named Nancy $400.00
One Negro Girl named Anna 250.00
1 Bedstead and some Furniture 40.00
Sundries furnished - and for use of my land three years up to the first of January 1837 750.00
Total amount $1440.00

Geo. M Savage
To be taken out of what I may leave him in my will after my death

Cash give you at L. Rock 600.00
At Home 700.00

Wiley Hawkins, Clerk of the County Court certified that the contents of this book was duly recorded in Will Book A, No 1 Pages 105 and 106

Page 240
Exhibit I

Know all men by these presents, that we Martha E Savage and Samuel K Oates and Thomas J Crow, are held and firmly bound unto Vincent M Benham, administrator of all and singular the goods and chattels, rights and credits of Samuel Savage decd with his will annexed in the sum of Twenty Thousand dollars, for the payment of which well and truly to be made, we bind our selves, our heirs, executors and administrators, jointly severally firmly by these presents, sealed with our seals and dated on this 21st day of March A D 1845.

The condition of this obligation is such that whereas the above bound Martha E Savage as administratrix of the estate of Samuel G Savage deceased by the law and will of Samuel Savage the elder deceased, is entitled to one sixth of the residue of said estate according to said last will and testament. Now therefore with a view to receive said 
portion of the estate of said Samuel Savage deceased the said Martha E Savage shall pay after receiving said portion one sixth of all the debts now due and owing from said estate or which may hereafter be established legally, against the same, to the said V M Benham as such administrator as witness our hands and seals the day and date above written. Martha E Savage, S K Oates, Thomas I Crow

Page 241
Subpoena 16 April 1845

To any Sheriff of the State of Alabama, Greeting
You are hereby commanded to summon, Vincent M Benham, admr of Samuel Savage decd with the will annexed, George M Savage, Hervey Dillahunty, Behethaland Dillahunty, Samuel T Johnson, Gideon J L Johnson, Charles 
Dillahunty, Hervey Dillahunty Jr, Milly Dillahunty, Samuel S Dillahunty, Samuel J Rucker, Ann Eliza Rucker and Matilda Rucker - if to be found in your county that laying aside all excuse personally appear before our next Court of Chancery, to be held at Florence .. First Monday in May next ...

“I acknowledge service of the bill and exhibit in this case for my children Charles L Dillahunty, Hervey Dillahunty and Milly Dillahunty and for my nephew Samuel Savage Dillahunty. August 12th 1845 Hervey Dillahunty”

“Executed by delivering a copy of the Bill and Exhibits to Gideon J L Johnson August 12th 1845, W P Pettus Shff by his Deputy J H Roberts”

“I acknowledge service of a copy of the Bill and Exhibits in this case August 12th 1845 Samuel J Rucker”

Page 242
Benham’s Answer

He admits it to be true that the complainant intermarried with Samuel G Savage about the time mentioned is said bill and that said Samuel G died on the 28th April 1840. He is also informed and believes it to be true that Saml Savage the elder, respondents testator died in the fall of the year 1837. Respondent cannot admit that the complainant was duly appointed admx of al and singular the goods and chattles, rights and credits of her said husband by the Orphans Court of Lauderdale County. That she was appointed admx he will not deny but admits the same to be true, but he also states that he is informed and believes she was so appointed before she was 21 years of age, and during her minority executed the only bond she hath ever executed for the due performance of her duties as such admx.

The defendant therefore denies that she was duly appointed Admx of Saml G Savage decd as she has stated in said Bill.

Respondent says in further answering that Samuel Savage the Elder made a last will and testament and the exhibit C in Complainants bill is with some exceptions a copy thereof, but not being so in all particulars, he refers to a copy from the Original exhibited in the answer of Behethaland Dillahunty as a correct copy of said last will and testament.

Respondent further answering says that he believes it to be true that George M Savage alone took out letters testamentary upon the said Last will and testament, and acted as sole Executor up to the period of his removal in Nov 1842. But how he managed the business while he conducted the same, respondent does not know save by the records of the Orphans Court of Lauderdale County, nor is he bound to answer thereto as he is advised having had no connection with said George’s acting and doings as such Executor.

It appears however by exhibit A of Complainants bill or rather by the copy thereof served on Respondent, that said George M Savage did return an inventory of said estate, for although it was returned as an appraisement, it is evidently intended to stand as an inventory as well as an appraisement, for the debts due to said Samuel Savage are included therein and as appears thereby the debt due by James T Borroughs was set forth in the same amount 575 dollars, so that it is not true as charged by Complainant that the debt due by said Burroughs was not mentioned.

Respondent amits that said Geo M Savage on or about the __ day of November 1842 clandestinely left the state and as respondent is informed took with him nine Negroes and Nine horses and Mules to carry them away, which conduct of said George was participated in by the father of Complainant, Samuel K Oates who was present when said George started with the property and aided him in his preparation therefor, and as respondent is informed and believes was acting as agent for Complainant, and as Complainant has stated in a bill filed in Franklin County against 
this respondent, said Samuel K Oates procured on that day a lot of cotton raised on the plantation of Samuel Savage decd by said George as Exr as aforesaid exceeding ninety bales for her as part of her husband’s portion under said last will and testament so that according to her own admission in a sworn bill said Oates was acting for Complainant as her agent with said George at the same time that he had a full knowledge that said George was making preparations to carry off said property clandestinely and actually aided him to do so as respondent is informed and believes.

Respondent further answering admits that soon after said George left the county his letters testamentary were revoked and annulled, and respondent was appointed by the Orphans Court of Lauderdale County admr 
de bonis non of said Estate with the will annexed. Said George left on Saturday night; on Monday following, Res’t was so appointed admr (after the revocation of said George’s letters testamentary) and on the next day he went to the plantation which was directed by the will to be carried on, to take charge of the property, at this time respondent was ignorant of what property did belong to said estate or in what condition the estate stood, and was necessarily obliged to call upon persons who did know for information on these subjects.

He met with Complainants father on said plantation on that day viz Samuel K Oates, and knowing that he had much to do with said George while Executor as aforesaid, on behalf of his daughter the Complainant, and believing he knew all the property of said Estate Rest called upon him to designate and point out the property of said Estate to him. This he freely did, but in pointing it out he claimed for his daughter as admx of said Samuel G Savage estate by reason of a pretended allotment to her by order of said Orphans Court during the time that said George acted as executor of the following negroes viz, Jack, Andrew, Dave, Washington and Bolivar, all men, and Charlotte and Betsy women, and a boy and girl named Sam and Adaline.

And Respondent then having confidence in said Oates not then knowing him as he now does, believed him, and on the same day to wit the 29th day of November 1842 Said Samuel K Oates as agent for Complainant, took the 
said Negroes away, and his daughter afterwards claimed them as admx of Saml G Savage, and hired ot pretended to have hired them to her Brother David C Oates, and she kept and retained the said Negroes, till the __ 
day of December 1843, not accounting for the hire or profits arising from the labor of said slaves to the present time.

Respondent further answering states that soon after his appointment as such administrator he ascertained the estate of said Samuel Savage deceased to be greatly embarrassed, owing many debts and being much envolved in litigation. The debts owing were chiefly created from the litigation in which the estate was envolved which were of an undisputed nature, said Savage having but a small amount of undisputed debts owing at the time of his decease. But it appears that soon after his decease, a suit was instituted against said George M Savage in the district Court 
of the United States for the Northern Division or district of the State of Alabama, held at Huntsville by the Heirs of one William T Taylor deceased of a very stale nature arising out of transactions which took place in South Carolina and Kentucky as far back as 1811, in which suit the Complainants claim an amount exceeding the whole value of the 
estate, and out of which suit large expences and were enacted against said Estate by said George, and about the time said George left the County and was removed a decree had been rendered against the estate for $5212.92 Dollars besides costs and Complainants not satisfied with this amount of recovery took the case by appeal to the Supreme Court of the United States when defendant was obliged to defend the estate. That in so doing he had necessarily to incur large expences in employing an agent, travelling expenses and lawyers fees.

Respondent succeeded in having the appeal dismissed, but the case was remanded and at the said district Court said Heirs of William Taylor at the November Term thereof held in the year 1844, again recovered the same amount with additional interest and cost against this respondent as administrator as aforesaid and respondent believing said decree to be erroneous as taken the case to the Supreme Court of the United States and the Complainants in that suit hath done so likewise where it is yet heading and undetermined.

Page 244

Respondent further answering states that when he came into the admr of said Estate he found another suit pending in the Chancery Court of this County wherein Kirkman and Andrews were plaintiffs and George M Savage and others were defendants, by which the complainants were seeking to recover property levied on by virtue of a Judgment and execution in favor of said George M Savage as Executor as aforesaid. Respondent after said George’s removal had to become a party thereto to guard the rights of the estate he represented, and in so doing had necessarily to incur 
large expences in feeing counsel and other things incidental to said suit. Respondent succeeded in dismissing said bill, but said Kirkman and Andrews have again renewed in a somewhat different way, and based upon a different state of facts, which suit has lately been instituted in your Hon Court held for this District.

This respondent further states, that the complainant and her said brother have severally instituted suits at common law against respondent for a re-caption of said Negroes so taken away by said Samuel K Oates as agent for complainant, which suits respondent has enjoined by the order of this Hon. Court on grounds therein mentioned which suits are yet pending and undetermined, and in prosecuting and defending which respondent has to be at much outlay.

And in answering Respondent further states that soon after he became admr as aforesaid he ascertained that said Samuel K Oates had purchased from said George M Savage as Exr as aforesaid a short time before he started from this country 92 bales of cotton or thereabouts and had paid but a very small part of the price therefor, and the balance was justly due the estate of said Samuel Savage. To recover the sum due, respondent instituted suit against said Oates in the Circuit Court of Franklin County, Ala. But during the last term thereof when respondent expected a 
trial of the cause said complainant had an injunction served upon him enjoining all further proceedings at law in the case mentioned and on reference to her bill filed to obtain an injunction she states that said Samuel K Oates obtained said cotton as her agent from said George M Savage in order to pay to her in part her husband’s share, which case is yet pending and undetermined, and attended with costs and charges against the estate in Respondents hands to be administered.

And in all the cases the costs and charges and expences are uncertain in amount and cannot be ascertained besides some part thereof which may be looked to as unavoidable and not yet created. Respondent further answering states that there are other debts and demands a gainst the estate in his hands to be administered to a considerable 
amount besides the cases mentioned, but he is unable now to state the exact amount, but will be able to exhibit them before a master if an account should be ordered.

Page 245

By the statements above made your Honor will perceive that the estate cannot be distributed amongst those entitled to legacies as by such distribution it would leave him no means to pay the liabilities created for said estate the most of which are personal liabilities on himself arising chiefly by his own contracts and proceedings, but wholly for the 
benefit of the estate of Samuel Savage decd and for it and on its behalf, and much of the litigation which at present exists has grown out of the complainant’s acts and the acts of her father and professed agent Samuel K Oates, and if distribution cannot now be made it is to some extent the fault of said complainant. Nor can the bond offered as 
exhibited in their bill entitle said complainant to distribution as respondent is advised, because it is not such a bond as would indemnify respondent and he submits that question to your Honor whether he would be safe in making the distribution the complainant seeks under the bond proposed by her and by her exhibited.

This respondent admits it to be true that Ann R Savage the widow of said Samuel Savage hath departed this life, she died, according to the best information and belief of respondent not in October 1840 as is stated in said bill but sometime in the fall of the year 1841, but although the event has happened upon which the estate was by said last will and testament to have been divided amongst the legatees entitled, yet as legacies are to be postponed to the payment of debts and necessary expences of carrying on the plantation and other incidental expences, the payment of legacies to those entitled cannot be yet made, because as above set forth there are yet many debts, and demands, expences, and necessary and proper charges against said estate many of which are from their nature uncertain in amount, and other claims in suit against the estate on which the judgment and decrees of courts must be had before it can be ascertained whether the estate of said Samuel Savage is liable for them or not.

Respondent further answering states that when he took upon himself the administration of said Estate in November 1842 he found but little cotton upon the plantation, compared with what ought to have been there and he afterwards ascertained that said Samuel K Oates took and carried away 92 Bales of that Crop; he had what was in the fields gathered and when all he could get was ginned and packed there was but 86 Bales and 20th of the inferior part of the crop; this he sold at 5 cents per pound amounting in all to the sum of $1737.39 dollars.

That on the 26th February 1844 he had a partial settlement of his administration with said Orphans Court, wherein he credited said Estate with that sum at the times received and with $74.78 dollars for stock sold as appears by a copy of the account stated with the county court a copy of which is exhibited in Complainants bill marked E. That account 
also sets forth the charges against the estate which he states to be just against the same, necessarily made, and for its use and benefits.

The sum of $252. was advanced to H Dillahunty for expences to and from Washington City and while there and the $150 Dollars was a compensation to him at the same time for his time and trouble in attending to the case of the appeal of Taylors heirs before mentioned, said Dillahunty knowing more about the case than respondent and as some person had to go to Washington City to carry up a transcript of the record and to employ counsel and to do other necessary business connected with the cause respondent believed said Dillahunty would be more useful than himself.

Page 246

The item of 210 Dollars and 52.5 Dollars Exchange was part of the fee paid to John Sargeant Esqr a Barrister of said Court in sound funds for arguing the cause mentioned on the appeal, said Sargeant and James T Moorehead another counsellor of that court who assisted in arguing said cause, each charging 250 Dollars fees, in the opinion of respondent not unreasonable, but very moderate.

The account of Jno Simpson & Co and Charles Gookin were for articles got for said plantation and applied to its use consisting of bagging, rope and twine, iron, salt, and other articles necessary, and here respondent although he has answered to the justice and correctness of said accounts submits it to your Honor whether he is subject to account as such admr with the Orphans Court as he has done and again with the court as if the accounts were open in both Courts. If not, he insists upon his rights as to accountability and not to be considered as yielding or waving the 
same by having answered as to what was adjudicated by said Orphans Court and more particularly whether said Complainant has a right to have the account opened by a general charge of incorrectness, without surcharging 
and falsifying.

Respondent admits that he raised crops on said plantation in the years 1843, 1844 and 1845, for which he is at all times willing to account with all persons entitled to an account from him. That in 1843 he made only 84 bales of cotton owing to two causes, one was that said complainant had during that year the hands mentioned as taken away by said Samuel K Oates as her agent, and the other was that the marshall of the district by virtue of an execution issued on the decree of Taylor’s heirs against said Estate took and carried away in the early part of the month of March 1843 upwards of 20 Negro men the most efficient part of the force on said plantation and kept them untill sometime in April next. These 84 Bales sold for the sum of $2616.24 Dollars.

The crop of 1844 consisted of 135 Bales of cotton and respondent sold it for the sum of $2344.11 Dollars. The crop of 1845 consisted of 153 Bales of cotton part of which has been sold and part not, and respondent has not received an account current from the commission merchant in New Orleans to whom the same has been shipped but he expects to hear it in time to lay before the Master if an account should be ordered to be taken by him. So far as respondent has received from cotton crops and from other sources since he settled his account with the Orphans Court in 1844 he presents in an account herewith filed marked P and prayed to be taken as a part of this answer, and in the same account is set forth the payments and outlay made for such estate and the compensation allowed him by the Orphans Court of said county allowed to him when the duplicate is filed.

Respondent further answering states that it is true the family of said Hervey Dillahunty has resided on said plantation since respondent took charge thereof, respondent found them there, and he did not direct them 
to quit. But said Dillahunty himself resides at a different place occasionally visiting his family. Respondent cannot live there himself and if Mrs. Dillahunty and her children did not live in the house it would be uninhabited as there is a house for the overseer on the place besides which was built for that use, so that so far as the house is concerned it is no loss to any one interested in said estate, and a benefit to the family which few people would grudge. As to drawing their whole living or supplies from said plantation so far as respondent knows it is not true; he believes they brought with them considerable supplies and the second year also they killed more pork than necessary for the 
family. If they drew supplies in the way mentioned in said bill of complaint, Respondent did not direct it.

As to the statements that said family of said Dillahunty had the exclusive use and services of four negroes of said estate it is untrue, they have had the exclusive use of but one negro since respondent to(ok) charge of said plantation and one an old man worth little or nothing in the field.

And in stating that Mrs. Dillahunty has had the exclusive use of this old man he will further state that she has only the exclusive control of him keeping him in the house as a cook but at the same time that he cooks for her and family he cooks for upward of twenty negro children of the Estate.

Respondent on enquiring finds that Mrs. Dillahunty has some times done by other negroes but not to interfere with the business of the Plantation to any material extent, such as making her bed and making a fire night and morning. This is all the use made of the negroes on the plantation by said Hervey Dillahunty and family according to the best 
information and belief of respondent, and respondent would say as his his belief that Mrs. Dillahunty has rendered to said estate a full equivalent at least for all the benefit she has derived therefrom from the use of the house, supplies to the extent drawn, and the use of the negroes to the extent she or her husband has used them, in this she has 
done the cutting of all or most of the negro clothing; she has superintended the weaving of the cloth for the use of the same; she has to a great extent attended to the sick negroes in seeing that they got proper medicine, nourishment, etc., and she has superintended the young negro children seeing that they were properly nursed and attended to in all respects.

Respondent therefore denies that said Dillahunty and his family had the exclusive use of any negro of said Estate, or that they drew all their supplies from the same, and so far as she has received services, supplies and shelter, from the use and occupation of the house she is in the opinion of respondent has fully compensated for the same as above 
mentioned.

Respondent denies that he has combined to cheat and defraud the said Complainant with said Dillahunty or any one else as alledged in said bill of Complaint nor is said Hervey the real admr of said Estate as is shown by the last will and testament of said Samuel Savage decd. Said testator had confidence in said Hervey and so has respondent, but to allow said Hervey to use him for purposes of fraud and injustice as Complainant has unkindly alledged is not true. That respondent has declined giving to complainant what she now demands by her bill is most true and for the reasons above stated. He denies that he has received more means from the proceeds of the crops and from all the means received by him of said Estate than is sufficient to pay the debts of said Estate and the just expences and charges against the same, which are real and pressing, not to take into calculation imaginary debts etc.. On the contrary he has obtained far from enough and to save the property viz land and negroes he has allowed himself to be harrassed by the claims of said Estate requesting indulgence, and time in order to make from the plantation the means of paying the demands against the Estate. If he had acted otherwise than from an earnest zeal for the 
interest of all the legatees he would have long since sold property and paid of all undisputed debts against said Estate. It would have been greatly to his comfort to have done so, as by this he would have got rid of annoying applications for money which he was unable to pay.

Respondent denies that he is paying the debts of said George M Savage or those of said Dillahunty; he denies paying any but the liabilities of said Estate of Saml Savage decd, or what he believes to be the liabilities of said estate, according to his own judgment and as he is advised by Counsel in cases of doubt and difficulty.

And Respondent having fully answered he prays the Judgment of the Court, whether he is an accounting party to said Complainant under the said admr granted to her under which right she claims an account and if accountable to her he prays that in the account she as such admx may be charged with wages of the Negroes of said estate so held by her from the 29th November 1842 to the day of December 1843 as an offsett to any claim she may have against said estate and for all other means or money she or her deceased husband may have had from said Estate, and that 
respondent may be allowed to prove the same before the person or persons directed to take the accounts.

And by way of demurrer said Respondent says that the said bill of the Complainant joins distinct matters of account against distinct and different defendants, that is to say she by her bill seeks to make George M Savage liable from a devastavit personally, for his actings and doings as Executor up to the period of his removal with which respondent 
is in no way connected and she seeks by her bill to make this respondent liable for his actings and doings since, and the said Complainant prays two separate accounts and decrees against said Savage and Respondent all of which will be seen by a reference to said bill wherefore Respondent says said bill is multifarious, and he therefore prays the same to be dismissed with costs, etc.. V M Benham Irvine Sol for Respt.

“This day personally appeared Vincent M Benham and made oath that the facts stated in the foregoing answer as on his own knowledge are true, and those facts stated as on the information of others he believes to be 
true. Sworn to and subscribed before me this 17th day of April 1846 J Bigger, J. Peace

Page 247
Exhibit P to Benham’s Answer

Estate Saml Savage in Acct Current and Interest with V M Benham, Admr

1844 (Interest calculated to 15th April 1846)

April Amt recd of Fellowes Johnson & Co for 43 bales cotton sold by them. $1607.03 plus 260.34 interest
May 1 40 bales cotton sold by Dick and Hill, New Orleans $979.16 plus $143.36 interest
1845 one bale cotton sold by Jno Simpson & Co. $30.00 plus 4.70 interest

January 1, 1845 S Brown for rent land 21.00

Sept 2, 1844 James Noel rent land 23.75

February 1, 1845 30 bales cotton sold by Fellowes, John & Co. 456.36

Other receipts for cotton


Page 249
Amounts received from settlement with Florence Bridge Company in 1845 and 1846 Total: $872.69


Page 250
Long list of people who were paid by the estate including:

Saml T Johnson, G N Arnett, Thos Ashford, Spencer Rhodes, Martin and Cassity, David C Oates, Wm P Horne, James W Stewart, E Fowler, L T Johnson, Jas H Reister, Jas Irvine (1197.08), H Dillahunty, Chas McClusky, Jas Brahan, John A Portlock, L Brown, Saml Martin, Jno M Branch (July 22, 2844 - $23.00), Jas H Viser, L T Johnson, B F Karsner, S C Stafford, J D Coffee, Wm M McClusky, H Thompson, A Askew, N Boddie, Wm M McClusky, W T Hawkins, Wm M McClusky, M Munn?, Jas H Reister, Wm R Garner (350.00), G Campbell, J T Moorehead (250.00), Moses Wood, Thomas 
Wright, Wm M McClusky, R L Bliss, T Thustin, Wm Koger, J B Leftwich, R M Patton, Wm M McClusky, Robt Kernachan, H Thompson, A Askew, W F Turnley, Mary Borroughs, Bennet Pope, B F Karsner, Jas Irvine (1082.00 on May 9, 1845), Barker and Benham (678.29 on May 8, 184 5), G I Houston, B F Rhodes, John A Portlock, W M Brandon, M Harkins,
E A O’Neal (49.93), G N Arnett, Jno Simpson & Co, (372.43), Jno Simpson & Co (202.23), James Irvine (250.00 on July 13, 1846), James Irvine (350.00 on July 14, 1846), Wm M McClusky, W M McCluskey, Wm M McCluskey, Wm M McCluskey, C Gookin (186.16 on Jan. 13, 1846), H H Brayton?, M Munn, Jas W Stewart, W Cheatham, Jas W Stewart, L C Moore, L T Johnson (1105.94 on March 4, 1846, L T Johnson (112.50 in 1845?), M Harkins (172.84), E A O’Neal ($5.00 on March 5, 1846), B B Barker, Smith & Lewter, Nathan Boddie, D M Thompson, Wm Cooper (100.00 on March 5, 1846), John McKorkle, Thos Shepperd, L T Johnson, L T Johnson, J H Craig, Boys for Coal, A Wright (500.00 on May 3, 1845), Edward 
Dillahunty (1000.00 on June 20, 1845), James Ham, N Boddie’s Negroes, corn, Savage’s negroes, corn, D M Thompson, W T Turnley, S A M Wood ($5.00 on April 13, 1846), V M Benham as for settlement (1035.83 on Feb. 26, 1844), L T Johnson, G W Lucas, W T Hawkins, E A O’Neal (16.80 on Apr. 15, 1846), Allowed admr by the Judge of the Orphans Court $300. per annum for 3 years 6 months (1050.00). Balance interest carried to principal (50.72).

Total amount paid in principal: $12,820.83. Total interest: 918.21 Benham swore it to be a true and correct account of his administration before Wm B Woods, Judge, on 15 April 1846 

 

 

Page 253
Hervey Dillahunty’s Answer

This defendant now and at all times hereafter saving and reserving to himself all, and all manner of benefit, and advantage of exception that can or may be had or taken to the many errors, uncertainties, and other imperfections and defects in the complainants said bill of complaint contained for answer thereunto, or unto so much and to such parts thereof as he is advised it is material or necessary for him to make answer unto answering saith,

That it is true that the complainant intermarried with Samuel G Savage and that he died intestate as stated in said bill, and that letters of administration on his estate were granted to complainant by the Orphan’s Court of Lauderdale County. He further admits that Samuel Savage the father of Samuel G Savage departed this life on the 25th day of November 1837, and that he had made a last will and testament having in his lifetime been seized and possessed of a considerable real and personal estate situated in said county, consisting chiefly of lands, slaves, and such stock as is usually kept on plantations. It is further true that the said Saml Savage in his lifetime cultivated cotton, and corn, and that by his last will and testament he appointed George M Savage, Finch P Scruggs and John Lorance the acting Executors of his will and this defendant, Finch Scruggs and Sidney C Posey, as advising executors to 
counsel with and advise the acting executors.

It is further true that George M Savage alone proved the will and took out letters testamentary on the estate of the said Samuel Savage, and shortly afterward took said estate into his possession but whether he returned a seperate inventory or not is wholly unknown to this defendant. He however believes that the return made by the said George M Savage to the office of the Clerk of the Orphans Court of said County exhibited the whole of the personal estate belonging to the said Samuel Savage at the time of his death.

This defendant does not admit that Exhibit C of the complainant’s bill is a true copy of the will of Samuel Savage, and he refers to Exhibit A of his wife’s answer as a copy of said will. It is true, that after providing for the payment of his debts, the said Samuel Savage by his will bequeathed a negro man named Jonah, and a liberal support to his wife Ann R Savage during her life, or widowhood, in lieu and bar of dower, but it is likewise true that the said Ann R Savage refused to accept of the provisions made for her by said will and came to Florence for the purpose of entering her dissent thereto, when by the advice of Counsel, the executor of the will of the said Samuel Savage and his children agreed to submit the matter in controversy to the arbitrament and award of James W Stewart, John Key, Benjamin Reynolds and John Lorance, and on the 29th day of December 1837 they together with the said Ann R Savage bound themselves in the penalty of twenty thousand dollars to stand to and abide the award of the said arbitrators, and on 
the same day the said arbitrators proceeded to make an award in writing by which the said Ann R Savage received from the estate of the said Samuel Savage the following slaves, namely Jonah, Charlotte, Glascow, Martha, Ann, Henrietta, old Polly, Sally Tom, and Amelia, Two beds and furniture, the family carriage, one brass kettle, two homespun counterpanes, two mattresses, three hundred pounds of lard, one hundred pounds of soap, and twenty nine hundred and twelve dollars in current Bank notes of the State of Alabama, as may be seen by reference to 
copies of said bond and award, made exhibit B and C to the answer of Behethaland M Dillahunty.

This defendant says that it is true that by the 4th Item of his will said testator directed his tract of land should remain undivided untill the death of his wife and his executors were empowered to do all and every thing necessary for the purpose of keeping up his plantation, by keeping the negroes, stock etc. on the plantation by employing 
overseers, and in all things to act for the prosperity of the plantation affairs as he had been accustomed to do, and that in pursuance of this provision the said George M Savage as Executor of the last will of said Samuel Savage conducted the affairs of said plantation from the time of said testators death untill the latter part of the month of November 1842, that he sold or directed the selling of the crops of 1837, 1838, 1839, 1840, 1841 and part of the crop of 1842, upwards of ninety bales of which he sold to Samuel K Oates, the father of Complainant, which has not yet been paid for as this defendant has been informed and believes.

This defendant has no doubt he saw an account of the sales of all the cotton belonging to said estate that was sold in New Orleans and that he was informed of all sales made in this country but he does not now recollect the sums for which said crops were sold; he however does not believe, or admit that they sold for the sums mentioned by complainant. It is true was a sale of some personal property made by the said George M Savage as mentioned by the complainant, but this defendant does not know that said George sold any stock or provisions from said plantation, 
and if any such were sold he is satisfied it was to an inconsiderable amount.

It is true that the said George M Savage resided on said plantation most of the time he acted as executor of the will of Samuel Savage, and so did the complainant and her husband from the time of their marriage in 1839 till his death in April 1840.

Further answering this defendant says it is true that the said Samuel Savage in the 5th item of his will expressed his desire that the net proceeds of his plantation (ie) from the crops after deducting what was necessary for the support of his wife and directed in the second Item and for the support, boarding schooling and clothing of his younger sons 
Samuel and Tacitus should be annually divided between his children who were married or of full age, and the amt thus paid over to them should be charged to each in accordance with the plan he had pursued, and in 
the final division of his estate as therein after directed the younger children who might not have had the benefit of such dividend were to be reimbursed that their portion with lawful interest out of the property to be divided, and in the division of such annual proceeds regard was to be had to his previous directions, but it is likewise true that said 
testator directed that his debts should be paid and that on the first day of September 1838 which was less than one year after his death a bill was filed by Samuel Taylor and others, representing themselves to be the legatees of William T Taylor late of Edgefield District in the State of South Carolina in the District Court of the United States for 
the Northern District of Alabama at Huntsville against the said George M Savage as executor of the last will and testament of Samuel Savage decd by which bill, claims and demands against the estate of the said Samuel 
Savage, were set up to an amount much greater than the value of said estate, that after said suit was brought and before the trial thereof the said Samuel Taylor died and the suit was revived in the name of his son William Taylor and others, and was prosecuted up to the November Term 1842 when a decree was rendered against the said George M Savage as Executor of the last will and Testament of Samuel Savage decd for the sum of Five thousand two hundred and twelve 92/100 Dollars, besides costs of suit amounting to about the sum of two thousand dollars more.

Page 255

From this decree the complainants appealed and the defendant by his agent prayed an appeal which was allowed but could not be prosecuted because the said George M Savage had been removed from his trust as executor of the Will of Samuel Savage and his letters testamentary repealed by the Orphans Court of Lauderdale County before said appeal was asked for, or granted by the District Court.

The Complainants however entered into the usual bond for costs, and took up a transcript of the record to the Supreme Court of the United States, where the cause was docketed for trial, but afterwards at the January term of said Supreme Court in the year 1844 said appeal was dismissed, and the cause remanded to the District Court at Huntsville for the purpose of making Vincent M Benham the administrator de bonis non cum testaments annexed, a party defendant to said suit, it appearing to the satisfaction of said Supreme Court that the said George M Savage had been removed from his office of Executor of the will of the said Samuel Savage about the time said decree was rendered.

In the meantime about the month of January 1843, the said Complainants procured the Clerk of the District Court of the United States for the Northern District of Alabama at Huntsville, to issue an execution against the estate of the said Samuel Savage deceased for the amount of said decree, and placed the same in the hands of the Marshall of the 
United States for the said Northern District of Alabama, who levied said execution upon about twenty of the most valuable slaves belonging to said Estate, and after this was done the said Vincent M Benham appointed this defendant his agent and attorney to defend the Estate of the said Samuel Savage in his hands to be administered and as soon thereafter as practicable a transcript of the record in said cause was procured from the clerk of the said District Court at Huntsville, by this defendant and carried by him to Washington City and filed in the office of the 
Clerk of the Supreme Court of the United States.

A petition was also filed, setting forth the facts which prevented the said Vincent M Benham from prosecuting his appeal by filing his bond in the District Court and showing that he was then prepared to give satisfactory security - said petition also prayed that the security offered might be approved and received, that the proceedings in the 
District Court might be superseded that the execution irregularly issued by the Clerk of the District Court as above stated might be set aside and such other relief granted as would enable petitioner to obtain a reverse of said decree. This petition was dismissed by the Supreme Court of the United States, but said Court in delivering its opinion declared that the Execution which had been levied upon the Negroes belonging to the estate of Samuel Savage decd as above stated, was irregular and void, and that a sale of them under it would convey no title to the purchaser, and upon delivering an authenticated copy of the opinion of the Supreme Court delivered on the matter of the petition above stated the said Marshall about the last of March or first of April 1843 returned all the negroes which he had taken from the plantation of the said Samuel Savage decd to the said Vincent M Benham.

Page 256

This defendant further says that while attending the Supreme Court in 1843 he employed John Sargeant and James T Moorehead Esqrs Counsellors admitted to practice in said Court to attend to the appeal of William Taylor vs George M Savage executor of the will of Samuel Savage and he states from information which he believes to be true that it was upon their motion, made at the January Term of said Court in 1844 said appeal was dismissed and the cause remanded to the said District Court and this defendant knows that sometime previous to the November Term of said 
District Court of the United States at Huntsville in the year 1844 a bill of revivor was filed in said court by the said William Taylor and others against the said Vincent M Benham administrator de bonis non with the will annexed of the said Samuel Savage deceased and that at said November Term of said District Court made an order reviving said decree against the said Vincent M Benham as such administrator and that from this order and decree the said Vincent M Benham prosecuted an appeal to the Supreme Court of the United States and that the said Complainants 
also prosecuted an appeal to the Supreme Court of the United States where both of said appeals are now pending and undetermined as he is informed and believes.

Further answering this defendant says that it is true that his wife Behethaland M Dillahunty and George M Savage were the only children of Samuel Savage who were of full age, or married at the time of his death, but it is utterly and wholly false that the whole of the net proceeds of the crops of said Estate, disposed of by the said George M Savage, has been divided between said George M Savage and this defendant or his wife; on the contrary thereof for the reasons herein before stated and of all which the complainants has full knowledge no division of the proceeds of said crops were ever made to the knowledge or belief of this defendant, nor does he admit that the net proceeds of the crops raised on said plantation after paying all expenses to have amounted annually to the sum of four thousand dollars.

This defendant admits that in the 4th item of the will of Samuel Savage he says “When my younger children (who were Samuel G and John T Savage) arrive at the age of twenty one years, it is my desire that they be advanced by my Executors by giving them as much property as I have given my children on their marriage or majority” and it is also true that he concludes this clause by saying “but in making this allotment I charge my executors to do it with a special regard to the management of my plantation to the best advantage” thus giving extensive discretionary 
powers to his executors with regard to the advancement to be made to the testators younger children and clearing showing, as this defendant believes, that the management of his plantation to the best advantage was the principal object of the testator.

Page 257

It is admitted that the said Samuel Savage had advanced money and property of the value of $3164.00 to the wife of this defendant and that he advanced to Francis T Rucker the sum of $3180.00, To William F T Savage the sum of $2700.00, To Charles L Savage one of the sons of said Testator who died at about the age of twenty three years he had advanced nothing. That to George M Savage he had advanced $1300.00 and to Sarah N Dillahunty the sum of $1400.00 as appears by book A, refered to by complainant.

It is further admitted that Samuel G Savage attained the age of twenty one years on the 28th day of March 1838, but it is not true that the said George M Savage as executor of the will of Samuel Savage did not advance to the said Samuel G Savage any amount either in property or money, either after the said Samuel G Savage attained the age of twenty one years, or after he was married; on the contrary thereof this defendant saw the said George advance the sum of Seven hundred and sixty dollars to the said Samuel G Savage of money belonging to the Estate of the said Samuel Savage, after the said Samuel G had attained the age of twenty one years, and this defendant has been informed and believes, that other large sums of money belonging to the estate of the said Samuel Savage were advanced to the said Samuel G Savage by the said George and other sums of money belonging to said estate were applied by the said George to the payment of debts contracted by the said Samuel G Savage since he attained the age of twenty one years, both before and since the said Samuel G Savage departed this life, and if this court should decide that the said Samuel G Savage had a vested right in the advancement mentioned in the 4th Item of the will of the said Samuel Savage, then this defendant submits that all the advancements made by the said George to the said Samuel G Savage since he arrived at the age of twenty one years, and that all sums which have been paid by the said 
George for, or on account of debts contracted by the said Samuel G since he attained the age of twenty one years shall be charged to the said Samuel G Savage, and allowed in the payment of said advancements.

This defendant does not believe, or admit that said George M Savage did not defray the necessary expences of the schooling boarding, education and living of the said Samuel G Savage prior to his majority as is stated by the Complainant, nor does he believe, or admit that many or any of the charges therefor have been paid by the complainant as admx of the estate of the said Samuel G Savage nor does he know or admit that some claims against the estate of the said Samuel G Savage still remain unpaid, and that the said complainant has no means of said estate wherewith to pay them.

This defendant has been informed and believes, and so charges that after the death of the said Samuel G Savage, the said George M Savage at different times placed money belonging to the estate of his testator in the hands of complainant for the purpose of paying the debts of Samuel G Savage, but whether this was done before the complainant was appointed administratrix of the estate of the said Samuel Savage this defendant is entirely ignorant, but he feels well assured if the Complainant did pay any of the debts against the estate of the said Samuel G Savage that she paid them with the money furnished to her by the said George M Savage as above stated.


Page 258

It is true that George M Savage left the State of Alabama in the month of November 1842, and that he has not returned to Lauderdale County since that time and it is also admitted that he took away with him nine Negroes, and nine mules and horses belonging to the estate of Samuel Savage decd and has as this defendant believes and admits converted them to his own use but he does not believe, or admit that they were of the value of seven thousand dollars. Further answering this defendant admits that George M Savage was removed from his office of Executor of the will of Samuel Savage decd by the Orphans Court of Lauderdale County on the 28th day of November 1842 and that on the same day Vincent M Benham was appointed administrator de bonis non with the will annexed of Samuel 
Savage decd by the same court and that on the next day afterwards he took into his possession all the remaining property of the estate of the said Samuel Savage except the following negroes namely Jack, Andrew, Dave, Washington and Bolivar who are men, Charlotte and Betsy women, and a boy and girl named Sam and Adaline, who were taken from the plantation of the said Samuel Savage decd by Samuel K Oates the father and agent of the Complainant on or about the 29th day of November 1842, and detained untill about the __ day of December 1843, when the said Vincent M Benham got them into his possession, and has continued to keep them to the present time. And it is also true that said Benham has employed the hands of said estate such time as he has had them in his possession in the cultivation of corn and cotton chiefly.

It is further true that the said Benham received upwards of eighty bales of the cotton raised on the plantation of the said Samuel Savage in the year 1842, and that he sold the same and applied the money arising from the sale to the payment of debts against said estate. It is likewise admitted that he has sold the crops raised on said plantation in the years 1843 and 1844, but it is not true that the said crops amounted to one hundred and fifty bales each of those years or that said crops sold for the sums mentioned by Complainant; on the contrary thereof this defendant has no doubt that the account of Vincent M Benham exhibited with his answer to Complainant’s bill shows the exact amount of the cotton raised on said plantation in the years 1843 and 1844 and sums it was sold for and that the facts stated in his answer sufficiently account for seemingly short crop of 1843.

This defendant admits that himself and family (such part of the time as he has been with them) have resided upon the plantation of the said Samuel Savage decd since the latter part of the month of August 1842, but it is utterly and wholly false that they have been supported therefrom with all their family supplies; on the contrary thereof this 
defendant states that he carried with him an amount of bacon, wheat and corn more than sufficient to support his family for one year, and that in the ensuing winter pork to the amount of four or five thousand pounds was killed out of his stock hogs which were left on the plantation formerly owned by him and which had run at will in his cornfields.


Page 259

It is likewise false that this defendant and his family have during all the time they have been on said plantation had the exclusive use of four negroes belonging to said estate as servants to wait on them; on the contrary thereof the family of this defendant have not had the exclusive use of one negro belonging to said estate and he here refers to the answer of his wife as containing all the facts relating to this allegation.

Further answering this defendant denies that it is by the 7th item of his will that the said Samuel Savage disposes of the residue of his estate it is by the eleventh Item of said will that said testator disposes of his Estate both real and personal and he refers to the Copy marked exhibit A, to his wife’s answer.

That defendant believes that William F T Savage was dead at the time Samuel Savage made his will and that the legacy bequeathed to him is lapsed. It is not admitted that Ann R Savage the widow of said testator departed 
this life on the 7th day of October, 1840; on the contrary this defendant has been informed and believes that the said Ann R Savage died sometime in the fall of 1841.

This defendant admits it to be true that by the provisions of the will of the said Samuel Savage his executors were directed to divide his estate both real and personal and give the same as therein directed upon the death of his wife but owing to the litigation in which said estate became envolved shortly after the death of said testator as herein 
before stated, it has never been in a condition which in justice to all the parties interested therein would authorize a division to be made, and he knows that said Vincent M Benham has done, and caused to be done all that was in his power to bring said litigation to a close and that its continuance to the present time is not from the fault or neglect of himself or of any agent has has employed, and it is submitted that it would be gross injustice to make a partial division of said estate before said suit is finally ended and determined.

This defendant denies that he has combined and confederated with the said Vincent M Benham for the purpose of cheating and defrauding complainant or that he has been misapplying the funds of said estate as charged by the complainant, or that he is the real administrator of said Estate. And he also denies that there was or is any combination between himself and George M Savage to cheat and defraud the Complainant and the other legatees of said Samuel Savage or any of them out of their residuary interest in said estate, or that it was with any such view 
that the said George did not carry into effect the 5th item of the will of his testator. On the contrary thereof for the reasons herein before stated there was no division made of the nett proceeds of the crops raised on said plantation as the Complainant has known from a short time after her intermarriage with her intestate to the present time.

Nor did this defendant receive any sums of money from the said George M Savage as executor of the will of Samuel Savage “in right of his wife” or “in his character of husband of his said wife” “the receipts for which” were fraudulently transferred” in to a debt as is falsely charged by the Complainant; nor was the Judgment mentioned by the Complainant fraudulently confessed.

But this defendant is advised and believes that he is not bound to answer to the Complainant in this Court, for, or touching any of the dealings and transactions between himself and the said George M Savage as Executor of the will of Samuel Savage deceased.

And this defendant doth deny that any other matter or thing in the Complainant’s said bill of Complaint contained material or necessary for him to make answer unto and not herein well and sufficiently answered unto confessed and avowed, traversed or denied is true to the knowledge or belief of this defendant and this defendant having fully answered, said bill prays to be hence dismissed with his reasonable costs in this behalf most unjustly sustained.

Hervey Dillahunty Solicitor for himself
30 April 1846

Amendment to Dillahunty’s Answer

Amendment to the enclosed answer filed by consent. Said Hervey Dillahunty in answer to the bill here states and says that the judgment as alluded to pr $7773.83 was for and on account of monies of the estate of Samuel Savage loaned to him this Respondent by George M Savage the Executor of the will of said Samuel and no other 
consideration than monies and effects, assets of said estate, and whilst said George M was such acting Executor.
And that Respondent then at time of said judgment was and yet is insolvent.


Page 260
Mrs. Dillahunty’s Answer

First day May 1846 Mrs. Behethaland M Dillahunty filed her seperate answer in said cause to the bill of complaint of Martha E Savage Admx etc in the words and figures following to wit.

The seperate answer of Behethaland M Dillahunty wife of Hervey Dillahunty to a bill of complaint exhibited against herself, her husband, her children, namely Samuel T Johnson, Gideon J L (who is called by the complainant by the name of John A Johnson), Charles Dillahunty, Hervey Dillahunty Junior and Milly Dillahunty and against her nephew Samuel Savage Dillahunty, and her nephew and nieces Samuel J Rucker, Frances Matilda Rucker and Ann Eliza Rucker, and against Vincent M Benham administrator de bonis non with the will annexed of Samuel Savage deceased and George M Savage late executor of the last will and testament of said Samuel Savage deceased by Martha E Savage Admx of the Estate of Samuel G Savage deceased in the Chancery Court. ...

Behethaland (Defendant) admits that complainant intermarried with Samuel G Savage about the time stated in her bill, and that he died about the 28th day of April 1840 in said County of Lauderdale intestate and that letters of administration were granted to the complainant by the Orphans Court of Lauderdale County as mentioned in her bill. She further admits that Samuel Savage the father of this defendant and Samuel G Savage departed this life on the 25th day of November 1837 having previous to that event made his last will and testament and that he was in his 
lifetime seized and possessed of a considerable real and personal estate situated in said County, consisting chiefly of lands, slaves and such stock as is usually kept on plantations, but whether or not said estate was “of the value of seventy five thousand dollars” this defendant is wholly unable to state.
...
This defendant does not admit that Exhibit C to the complainants bill is a true copy of the last will and testament of her father Samuel Savage decd, on the contrary thereof she is advised and believes that said pretended copy differs materially from the original and she herewith files a copy marked (A) to which she prays reference may be had by the court on the final hearing of this cause. She admits that after directing the payment of his debts the said Samuel Savage bequeathed by his will a negro man named Jonah, and a liberal support to his wife Ann R Savage during her life or widowhood in lieu and bar of dower but it is also true that the said Ann R Savage refused to accept of the provisions made for her, by the said will and came to Florence for the purpose of entering her dissent to the provisions of said will when by the advice of counsel she agreed to submit the matter in controversy to the 
arbitrament and award of James W Stewart, John Key, Benjamin Reynolds and John Lorance, and on the 29th day of December 1837 the said parties above named and the said Ann R Savage bound themselves in the penalty of 
twenty thousand dollars to stand to and abide the award of the said arbitrators, and on the same day the said arbitrators proceeded to make an award in writing by which the said Ann R Savage was to receive and 
did receive from the estate of the said Samuel Savage the following slaves, namely Jonah who had been given to her by the will of the said Samuel Savage, Charlotte his wife, Glascow, Martha Ann, Henrietta and old Polly and Sally, Tom and Amelia, children of Charlotte, two beds and furniture, the family carriage, one brass kettle, two home spun 
counterpanes, two mattresses, three hundred pounds of lard, one hundred pounds of soap and twenty nine hundred and twelve dollars in current bank notes of the State of Alabama .... (Same as deposition of Hervey Dillahunty)


It is true that by the 4th item of his will the said Samuel Savage directed that his tract of land should remain undivided untill the death of his wife and his executors were empowered to do all, and every thing necessary for the purpose of keeping up his plantation by keeping the negroes, stock etc. on the plantation, by employing overseers, and in all things to act for the prosperity of the plantation affairs as he had been accustomed to do and that in pursuance of this provision the said George M Savage as the executor of the will of the said Samuel Savage 
conducted the affairs of said plantation from the time of said testators death untill the latter part of the month of November 1842, that he sold or directed the selling of the crops of 1837, 1838, 1839, 1840, 1841, and part of the crop of 1842 upwards of ninety bales of which were sold by the said George M Savage to Samuel K Oates the father of complainant and has not as yet been for as this defendant is informed and believes.

Of the amount or value of the other crops raised and disposed of by the said George M Savage this defendant has no certain knowledge; she however believes the estimate made by the complainants is greatly exaggerated.

This defendant knows that there was a sale made of some personal property consisting of household furniture by the said George M Savage about the time mentioned in complainants bill but whether the amount stated by the complainant or whether such amount was collected by the said George in the course of his administration this defendant is wholly ignorant, nor does she know whether said George sold any stock or provisions from the plantation of his testator she however believes if he did sell any it was to an inconsiderable amount.

Further answering defendant states that said George did reside with his family (consisting at first of himself and wife, with the addition afterwards of one child) on the plantation the greater part of the time of his administration of said estate, but whether the supplies he drew from said estate were of the value mentioned by the complainant this 
defendant is entirely unable to state.

Page 263

It is true that the said Samuel Savage in the 5th item of his will expressed his will and desire that the net proceeds of his plantation ... (Same as Hervey Dillahunty)

Page 264

Further answering this defendant admits that herself and George M Savage were the only children of Samuel Savage deceased who were of full age or married at the time of his death, but it is utterly and wholly false that the whole of the net proceeds of the cotton crops of said Estate, disposed of by the said George M Savage has been divided between the said George M Savage and this defendant, or her husband. On the contrary thereof for the causes and reasons above set forth and of all which the complainant long since had full knowledge, no division or distribution 
of the proceeds of said crops were ever made to the knowledge or belief of this defendant nor does she admit or believe that the net proceeds of the crops raised on said plantation after paying expences to have amounted annually to the sum of four thousand dollars.

It is true that in the 4th Item of his will the said Samuel Savage says “When my younger children (who were Samuel G and John T Savage) arrive at the age of twenty one years it is my desire that they be advanced by my executors by giving them as much property as I have given my children on their marriage, or majority,” but in immediate connection he adds “but in making this alotment I charge my executors to do it with special regard to the management of my plantation to the best advantage” thereby as this defendant is advised, and believes clothing his executors with large discretionary powers with regard to the advancement to be made to the testators younger children, and showing that the management of his plantation to the best advantage was the principal object he had in view.

This defendant admits it to be true that her father Samuel Savage between the month of September 1822, and the time of his death gave to her, property consisting of Negroes, horses and money amounting to the sum of $3164.00 and that he gave to Frances F Rucker the sum of $3180.00. To William F T Savage the sum of $2700.00 To Charles S Savage one of his sons who died at about the age of 23 years he advanced nothing, that to George M Savage he advanced $1300.00 and to Sarah N Dillahunty he advanced the sum of $1400.00.

Defendant also admits that Samuel G Savage attained the age of twenty one years on the 8th day of March 1838, but she denies that the said George M Savage as executor of the will of Samuel Savage did not advance to the said Samuel G Savage any amount either in property or money after the said Samuel G Savage attained the age of twenty one years or after he was married; on the contrary thereof this defendant saw the said George advance the sum of $760. of money belonging to the estate of the said Samuel Savage, after the said Samuel G had attained the age of 
twenty one years and this defendant has been informed and believes and so charges that other large sums of money belonging to the estate of her father were applied by the said George M Savage to the payment of debts contracted by the said Samuel G Savage after he attained the age of twenty one years, both before and after the death of the said Samuel G Savage, and if this Honorable Court should be of the opinion that the right to the advancement mentioned in the 4th item of the will of the said Samuel Savage had vested in the said Samuel G Savage before his 
death, then it is insisted that all sums that have been paid to, or for, the said Samuel G Savage since he attained the age of twenty one years shall be charged to the said Samuel G and allowed in the payment of his advancement.


Page 265
... (Same as Hervey Dillahunty - expenses for Samuel G)

and she further says that the said George M Savage was the acting executor of the will of the said Samuel Savage on the 28th day of April 1840 when the said Samuel G Savage departed this life and that he had been the acting __ of said will from the month of December 1837 up to that time and so continued till the latter part of the month of November 1842 and that all persons who had just claims against the Estate of the said Samuel Savage for, or on account of the support, boarding, schooling and clothing, or for either of them, might have presented them (and if such claims did exist) no doubt did present them to the said George M Savage for payment, when it became his duty according to the will of his testator to pay the same, and this defendant further says that if the persons holding claims for the necessary support, boarding schooling and clothing of the said Samuel G Savage prior to his 
attaining the age of twenty one years (if any such there were which is not admitted) failed or refused to present them to the said George M Savage and to collect the amount from him such failure or refusal was as this defendant is advised, at the peril of the creditor so failing or refusing to present such claim to the said George M Savage and collect the amount from him, and would transfer no right to the complainant to prosecute a suit against the representatives of Samuel Savage decd for debts or claims due to other persons.

Defendant has been informed and believes, and so charges, that after the death of the said Samuel G Savage the said George M Savage handed to the Complainant divers sums of money belonging to the estate of Samuel Savage for the purpose of paying the debts of the said Samuel G Savage, but whether this was done before or after the complainant was appointed administratrix of the said Samuel G Savage this defendant does not know but she verily believes that if complainant has paid any of the debts against the estate of the said Samuel G Savage she paid them with the 
money handed to her by the said George M Savage as above stated. 

... (Same as Hervey Dillahunty - George M Savage left Alabama - took slaves and mules with him - Samuel Oates took slaves - Benham sold crop - short because Oates family had their slaves - also slaves taken by the Marshall for the N.C. lawsuit.)

Page 266

Slaves, Jack, Andrew, Dave, Washington and Bolivar, who are men, Charlotte and Betsy, women, and a boy and girl named Sam and Adaline?, were taken from the plantation by Samuel K Oates, the father and agent of the Complainant on or about the 29th day of November 1842 and detained until about the day of December 1843, when the said Vincent M Benham got them into his possession and has continued to keep them on the said plantation to the present time.

Page 267

... This defendant states that it is true, that herself, her husband (such part of the time as he is at home) and their family have resided upon the plantation of her father, the said Samuel Savage decd since the latter part of the month of August 1842 but it is utterly and wholly false that they have been supported therefrom with all their family 
supplies, on the contrary, thereof this defendant states that when her husband was broken up in the month of August 1842, the sheriff did not levy upon or in anywise intermeddle with the family supplies then on hand which were therefore removed with the family, and she states that the supplies then on hand was more than sufficient for one years support of their family diminished as it was then in numbers, and she further states that during the ensuing winter pork to at least the amount of four or five thousand pounds was killed out of her husband’s stock of 
hogs, which were left on the plantation formerly owned by him and which had run at large in his corn fields. Wheat and corn also to a considerable amount for the support of their family, were brought from said plantation. It is also false that this defendant and her husband have during all the time they have been on said plantation had the 
exclusive use of four negroes belonging to the Estate of the said Samuel Savage as servants to wait on themselves and families; on the contrary thereof this defendant has not had the exclusive use of one negro since she removed to the plantation of her father.

It is true that an old negro man by the name of Moses (should be Morris?) who was for many years cook for her father has most of the time since her removal in 1842 cooked for herself and family but he also cooks for upwards of twenty negro children belonging to said estate and she has also had the use of an old negro woman by the name of Aggy (who, on account of her age had been withdrawn from the field by the father of this defendant in his lifetime) to wash and iron for herself and family; besides this her bed is made, and the rooms swept in the morning sometimes by one of the women, and sometimes by another, care being taken not to hinder a field hand - choice generally being made of one that is nursing a young child, or who from some indisposition is not sent out to work. Wood also is cut, and a fire made for this defendant night and morning by a negro man, or boy, when a fire is necessary but this is done at such times as not to interfere with the labors of the field.

And this defendant further states that since herself and family have resided on said plantation she has devoted most of her time to advancing the interest of said estate by attending to the spinning and weaving of cloth to make the negro clothes, by cutting out their clothes, and having them made in due season, by attending to the negro children and to the sick negroes and having them properly nursed and taken care of, and in general by doing all that was in her power to promote the interest of said estate, and if your Honor should determine that the Complainant is entitled to an account for house rent, negro hire, or any thing else she submits that in equity and good conscience, she too is entitled to compensation for her services above stated.

It is true that defendant and her family have resided in the house occupied by her father in his lifetime, since the month of August 1842 but said house is of but little value, and not occupied by this defendant would be of no use, or value to those interested in said estate as there is an overseer’s house and plenty of negro houses on said plantation.

Further answering, this defendant says it is not true as stated by the complainant that said testator disposes of the residue of his intestate by the seventh item of his will, it is by the eleventh item in said will as may be seen by the copy hereto annexed that said testator disposes of his estate, both real and personal. In said last mentioned item said testator says, “Upon the death of my dearly beloved wife it is my will and desire that all my property of every kind and description both real and personal, then in the hands of my executors shall be equally divided between my children, that is one seventh part of it shall be given to the children of my daughter Behetheland Dillahunty or the survivors of them in equal proportion, one seventh part of it to the children of my deceased daughter Frances T Rucker upon the considerations and limitations expressed in the seventh item of this my will, one seventh to Samuel Savage Dillahunty as directed in the eighth item,, one seventh to my son William T T Savage, one seventh to my son George M Savage, one seventh to my son Samuel G Savage, and one seventh to my son John Tacitus Savage.”

But as the will of the said Samuel Savage is the foundation upon which the complainant claims his estate this defendant refers your Honor to the whole will being advised that no further notice of the garbled extracts therefrom or the strained constructions put thereon by the complainant is necessary in her answer.

This defendant believes and therefore admits it to be true that her brother William T T Savage was dead at the time her father the said Samuel Savage made his will, and that his legacy is lapsed. She further admits that the advancements made by said testator were charged in a book marked A, and that the entries therein were recorded in the Orphans Court of Lauderdale County. ...

This defendant does not admit that Ann R Savage the widow of the said testator departed this life on the 7th day of October 1840, on the contrary she has been informed and believes, and so charges that the said Ann R Savage died about the month of October 1841.

This defendant admits it to be true that by the provisions of the will of the said Samuel Savage his executors were directed to divide his estate both real and personal and give the same as therein directed upon the death of his wife, but owing to the litigations in which it became envolved shortly after the death of said testator as herein before 
stated it has never been in a condition which in Justice to all the parties interested would authorize a division to be made. She believes that the said Vincent M Benham has done and caused to be done all that was in his power to bring said litigation to a close, and that its continuance to the present time is not from any fault or neglect of his 
or of any agent he has employed to attend to said suit, and she submits to the court that it would be iniquitous to make a partial division of said estate before said suit is finally ended and determined.

 

Page 269

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

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

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

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

15 April 1846 Behethaland M Dillahunty

Page 270
Exhibits A and B

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

Page 271
Property given to Ann R Savage.

Page 271
Answer of Samuel J Rucker

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

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

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

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

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

 

Samuel J Rucker, 1 May 1846

Page 274
Answer of Samuel T Johnson

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

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

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

James Irvine, Solicitor for Samuel T Johnson
4 May 1846

Page 275
Answer of Frances Matilda Rucker
20 September 1848

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

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


Hervey Dillahunty, Solicitor for Defendant

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

 

Hervey Dillahunty, her Solicitor

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

Page 279

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

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

Page 281
Questions for James W Stewart

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

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

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

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

Page 286
April 22, 1846

William R Garner deposition

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

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

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

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

Mr. Dillahunty had no servants of his own the first year, but had a small boy the second year in the latter part of the year that did not belong to Savage’s estate. Flour of the servants belonging to the estate of Samuel Savage stays about the house each year waiting on Mrs. Dillahunty’s family, cultivating the garden etc, viz one old negro man 
the cook (Morris) (Called Moses by Mrs. Dillahunty), one old woman very old unable to do much about the plantation named Aggy - One negro woman named Clarissa afflicted with the scrofula, able to work unless that disease injured her, but I am unable to say whether it would or not. One girl ten or twelve years old, who waited in the house named Diana never had worked out, but was larger than some I had out. Morris would have been worth $25.00 or $30.00 a year, Aggy would have (been) worth about $20.00 a year, Clarissa would have been worth from $40 to $50 (if not 
injured by the scrofulous disease) a year. Diana would have been worth from $20 to $25 a year. None of these Negroes were at all under my control. I gave out meat to them the two negro women were employed in spinning whether for Mrs. Dillahunty (who had control of the spinning) or for the plantation I do not know. The house was worth something, I do (not) know how much, but probably $25. or $30. a year. There were seven in Mrs. Dillahunty’s family. Mrs. Dillahunty had a horse the last year time enough to use him in cultivating a crop. Samuel Johnson (one of the family) usually kept a riding horse. The family including the four negroes annually consumed food and provender to the amount of about $70. or $80.

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

Cross Interrogatories
William R Garner

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

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

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

William R Garner

Page 288
Interrogatory - James W Stewart (a physician)

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

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

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

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

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

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

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

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

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

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

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

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

Jas. W Stewart.

Page 289
Interrogatory - Daniel Thompson

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

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

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

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

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

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

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

Cross Interrogatory

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

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

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

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

Page 293
Interrogatory - Neil Rowell

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

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

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

Page 294
Jno Simpson

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

John Simpson

Interrogatory
Dr. James W Stewart

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

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

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

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

Page 295
Interrogatory of Mrs. Amelia Oates
Franklin County

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

Interrogatories by defendants.

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

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

Page 296
Final Decree

November Term of Chancery Court in 1848

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

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

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

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

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

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

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

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

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

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

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

Let the decree be enrolled

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

D G Ligon, Chancellor

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

Let the following orders be entered

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

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

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

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

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

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

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

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

D G Ligon, Chancellor

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

Page 302

Accounts:

Value of estate when Savage died.

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

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

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

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

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

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

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

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

Page 305

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

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

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

Lot No. 2 drawn by Samuel Savage Dillahunty

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

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

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

Lot No. 4 drawn by Admr of John T Savage

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

Lot No. 5 drawn by Mrs. Behethaland Dillahunty

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

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

Page 307

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

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

August 25, 1847

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

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

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

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

Total: $5274.92

Page 312
Credits Include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Total receipts: $46,222.18

Page 314

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

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

Page 315

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

Final Decree

let the following order be entered and decree enrolled.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D G Ligon, Chancellor
Recorded June 17, 1850