Record Book F
Pages 65 - 94
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]
Sarah Dillahunty vs Nathan Boddie
Be it remembered that on the 14th September 1846 Sarah Dillahunty filed her bill of complaint against Nathan Boddie.
The bill of complaint of Sarah Dillahunty who is a citizen of Maury County in the State of Tennessee. ... On the 7th day of January 1827 one Thomas Dillahunty whose last place of residence was Lawrence County in the state of Alabama, made and published his last will and testament ... in the month of August 1828 the said Thomas Dillahunty departed this life, without having revoked or altered his said will in relation to the legacies thereby given to your Oratrix, and that on the 22nd day of October 1828 said will was duly proven .. and was admitted to record in the county court of said Lawrence County. Hervey Dillahunty and John B Dillahunty two of the executors therein named, duly qualified and took upon themselves the execution of the duties imposed upon them by the terms of said will.
Your Oratrix further shows that she is the widow of said Testator, and that in the second item of his said will among other devises and bequests made to her he says “I also lend to my wife three negroes, male or female, as she may choose and also a negro girl named Roset, to be, and abide to her use during her natural life ... She further shows, that shortly after the death of said Thomas Dillahunty, the said Hervey and John B Dillahunty executors of the will of the said Thomas, settled up the estate of said Testator and assented to the devises and bequests in said Will and about the month of January 1829 delivered all of the property bequeathed by said Testator to your Oratrix into her
possession, and that she continued in the possession of said girl Roset, from the month of January 1829 until some time in the year 1842 when one Thomas U Lassiter, with whom your Oratrix had been living for several years previous to that time removed from Lauderdale County in the state of Alabama to the Town of Tuscumbia in Franklin County in said state, and there wrongfully, and not only without the consent but against the express commands of your Oratrix, carried said girl Roset to the Town ofTuscumbia, where he detained her a few months to wit from about the month of ____ in the year 1842 untill about the first of September in said year, at or about which time your Oratrix recovered the possession of said girl Roset and continued therein untill about the month of July 1844, when she hired her for the term of one year to one Nathan Boddie and at the end of said term she again hired said girl Roset to said
Nathan Boddie for another term ending on the 31st day of July 1846.
Your Oratrix further shows that before the end of said last mentioned term for which she had hired said negro girl Roset to the said Nathan Boddie, she came to the determination to hire her no more, and so informed him, in an interview which she had with him, a few days before said term expired. This interview between your Oratrix and the said Nathan Boddie took place as she believes and states, on Wednesday the 29th day of July 1846, and the said Boddie then agreed and faithfully promised that on the next succeeding Monday, he would send the said negro girl Roset together with her children to the house of one David Gresham, who is a citizen of said Lauderdale County, and who is married to one of the daughters of your Oratrix, and to which place she desired to have said negroes carried and where she intended them to remain, but the said Boddie failed to send said negroes according to his promise.
Your Oratrix further states that the negro girl Roset and her children are family negroes - that your Oratrix raised the mother of Roset, as well as herself, from an infant, and that chiefly with her own hand, and pretty much in her own household, and among her own children, and that she has a strong affection for and attachment towards the said girl Roset and her children, growing as well out of the circumstances above stated, as from the dutiful obedience of the said Roset to your Oratrix, and the further fact that your Oratrix regards her in the light of a gift, or loan, more sacred, than if she claimed her by purchase, or even by descent, so that your Oratrix, in fact says that damages in money will not be an adequate compensation for them, and she further states that she has good reason to believe and does believe that it is the intention of the said Nathan Boddie to run, or remove the said negro girl Roset and her children beyond the limits of the state of Alabama, and to sell, or secrete, or so otherwise to dispose of said negroes, as that you Oratrix will lose them,, and that your Oratrix is apprehensive and really fears, that unless the said Nathan Boddie is required to give good and sufficient security to have the said negro girl Roset and her
children forthcoming at the termination of this suit, that she will entirely lose them.
Your Oratrix has called on said Nathan Boddie, at his residence since the time for which he hired said negroes had fully expired, and demanded the said negro girl Roset and her children to wit Susan, Harriett, and Charles, but he disregarded her demands and absolutely refused to deliver said negroes into her possession. And your Oratrix being quite old, and much averse to getting into litigation with the said Nathan Boddie and desiring nothing at his hands, but what she conceives to be her indisputable right, hath since she demanded her said negroes from the said Nathan Boddie, as above stated, procured the kind offices of a friend, who in her behalf applied to him to restore her negroes to her, as in Justice and equity he ought to have done, but he still refuses to return them to your Oratrix.
But now so it is may it please, Your Honor, that the said Nathan Boddie to color? his refusal to comply with your Oratrix most reasonable and just demand gives out and pretends, that in the year 1842, and when in the possession of the said negro girl Roset, the said Thomas U Lassiter who is married to Harriet Thomas, the youngest daughter of your Oratrix, made and executed a certain deed of trust to one William C Dillahunty, whereby he conveyed the said negro girl Roset to the said William C Dillahunty, for the purpose of securing the payment of debts then due, and owing by the said Thomas U Lassiter to certain persons in said deed mentioned, and that in pendance? of said trust deed, the said William C Dillahunty, on the 30th day of August 1842, sold said negro girl Roset, and that one Thomas Kirkman bought her at said sale, and hath since that time sold her and her children above named to the said Nathan Boddie, whereas your Oratrix charges that the said Nathan Boddie well knows that the said Thomas U Lassiter never was rightfully in possession of the said negro girl Roset and knows that when he carried her to the town of
Tuscumbia as herein before stated, he done so arbitrarily, and without the leave or consent of your Oratrix, and finally, your Oratrix charges that said Nathan Boddie well knows, and has known ever since the pretended sale of the said girl Roset to the said Thomas Kirkman on the 30th day of August 1842, that the life estate of your Oratrix in the
said girl Roset was reserved, and excepted in said sale.
All of which actings doings pretenses and refusals on the part of the said Nathan Boddie are contrary to equity and good conscience, and tend to the manifest wrong and injury of your Oratrix in the premises.
In consideration whereof and for as much as your Oratrix can only have adequate relief in a court of equity where matters of this nature are properly quizable and ulivable?. To this end she prays that the said Nathan Boddie, who is a citizen of said Lauderdale County, may be made party defendant to this bill, and that he may upon his corporal oath, to the best and utmost of his knowledge, remembrance, information and belief, full, direct and perfect answer make to all and singular the matters aforesaid, and that as fully and particularly as if the same were here repeated, and he distinctly interrogated, thereto, and more especially, that he may answer and set forth whether he hired said negro
girl Roset from you Oratrix, at the times, and for the terms herein stated?
Whether he promised to deliver said girl Roset and her children to your Oratrix at the time and place herein mentioned and whether he did deliver them according to his promise, and if he did not, why not?
Whether since the term for which he hired said girl has fully expired, your Oratrix called upon him at his residence, and demanded her negroes now in his possession and whether or not he refused to restore them to her?
Whether since the demand made by your Oratrix any other person has applied to him on her behalf and urged him to restore her negroes to her, and if so when was such application made and if made more than once state how often, and where?
And your Oratrix prays that said defendant may be restrained by the order of your Honor from removing the said negro girl Roset and her children, or either or any of them, out of the jurisdiction of this Honorable Court, and that writs of attachment may issue to the sheriff of Lauderdale County in the state of Alabama commanding him to seize and take into his custody the said negroes Roset, Susan, Harriet and Charles and that he retain and hold them untill the defendant give good and sufficient security not to remove said negroes beyond the jurisdiction of this court and to have them forth coming to answer the order and decree of Your Honor in the premises. And that upon the final hearing of this cause the said Nathan Boddie may be compelled by the decree of this Honorable Court to deliver up to your Oratrix the said negro girl Roset and her children herein above named, with any other or others she may have at the time such decree is rendered, and to pay a reasonable hire for said negroes for the time he unjustly detains them. And that your Oratrix may have such other and further relief as to your Honor shall seem meet, and the nature and circumstances of this case may require, and that a subpoena may issue, etc. and your Oratrix will ever pray, etc..
Hervey Dillahunty, Solicitor for Plaintiff
Luther T Thustin, Register of the Chancery Court of Lauderdale County, stated that Sarah Dillahunty made oath to the statements in the foregoing bill on 14 September 1846
The Register of the 28th district of the Northern Chancery Division will issue a writ of attachment according to the prayer of the foregoing bill, upon the complainants entering into bond with sufficient security, conditioned that she will pay all such costs and damages as the defendant may sustain by the wrongful suing out of said attachment, said
bond to be taken in the sum of five hundred dollars. He will in said attachment require the sheriff to take charge of the slaves named in said bill, and keep them untill the defendant give good bond and security in the sum of fifteen hundred dollars, conditioned to have the said slaves ready to abide the final order and decree to be made in this
cause. If defendant fail in five days to give such bond, the complt may give it and receive said slaves. He will also issue a writ of injunction enjoining and restraining said defendant from removing said slaves out of the jurisdiction of this court. D G Ligon, Chancellor
Subpoena for Nathan Boddie - 28 September 1846 - Issued by Thustin, Register
Attachment issued to take the said negro slaves and hold the same subject to the decision of the court (Roset, Susan, Harriet and Charles)
Will of Thomas Dillahunty
In the name of God amen. I Thomas Dillahunty of the state of Alabama, and Lawrence County being near sixty one years old and thro’ the mercy of God in health and sound mind do make this my last will and testament, as follows
1st I give my soul to God who gave it, and my sinful body to the grave, till the morning of the Resurrection, when I hope to arise to glory thro’ the merits and righteousness of Jesus Christ my Lord.
2nd I lend unto my beloved wife Sarah during her natural life the following property (viz) one third of my land and farm house garden and water, and one third of all my stock, of every discription with my wagon, one third of all my household goods and tools every discription, and one third of all the corn and meal and other provisions that may be
on hand at my death, with one set of silver spoons. I also lend to my wife three negroes, male or female as she may choose, and also a negro girl named Roset, to be and abide to her use during her natural life, and further my will is that the present crop of cotton, one third of which belongs to Hervey of right (my two thirds) one half of which, I
give to my wife and Harriet Thomas my daughter, and the other half to my son, John Bunyan, to them and their heirs forever ... As I have in my lifetime given to my deceased children (viz) Lewis and Elizabeth and Susan a part of all my property and now confirm it to their heirs forever, as their full share of my estate.
Item The two quarter sections of land I live on, I give unto my two sons Hervey and John B reserving my wife’s dower in it containing three hundred and twenty acres and that they my sons Hervey and John B have power and authority from me and with the consent of their mother to cultivate and enjoy the said track of land jointly between them, and their mother and her hands and they my sons Hervey and John B further have my leave and authority jointly to sell and dispose of said farm and make a good and lawful deed to the purchaser for the same and as there
may be a small balance due to Government on the same and let it be little or much that Hervey and John B shall pay into the treasury the said balance out of their own private funds and not out of my estate to them, and their heirs forever.
Item. I give unto my youngest daughter Harriet Thomas, one feather bed and furniture, one set silver tea spoons, one toilet glass, also my negro girl Chana? and her four children (viz) Roset, Henry, Sam and Fel, and also one hundred dollars to buy her a horse and saddle, the said negroes all and severally, they and their increase to said Harriet T.,
and her heirs forever, as her full share of my estate, and further my wish and desire is that my sons as soon as I am buried proceed to take an inventory of all and every part and particle, remainder and remainders, not before given away or loaned to my wife shall be sold to the highest bidder, on a credit and the money arising from them, to be
equally divided among all my children )viz) Polly Yiser?, Rachel Sutton, Hervey, Edmund, Nancy Hamilton, John, to them and heirs forever; this will include all my estate except my negroes which I wish to be divided by appraisement or otherwise among themselves, and divided equally to Polly, Rachel, Hervey, Edmund, Nancy Hampton, and John, to them and their heirs,
Dear children, it is well known to me, and I think to you, that some of you has received more or less and in order that an equal distribution be made among you (Thos. Dillahunty) that each of you render to each other a faithful account of what you have received, so that Nancy and John, who has received but little may get their equal right. My will is that should any of my heirs or any body for them not comply with the above requisition and prove contentious that my three sons with their mother proceed to set and divide according to the true intent of this will and the contentious person heirs or who soever it may be shall have no redress in law or equity.
My will and desire is that at my wife’s death all of the property and negroes and increase shall be equally divided among all my children, male or female, that may be alive, at her death, and no others to them, and their heirs forever. My will is further to explain that my son John have and take Stephen, as he was a gift to him from my father to himself and I give him further four hundred dollars out of the present crop of cotton and sold to ___ Stout? to buy him two young negroes to him, as he helped to make it and it is the legacy I mention before be divided between him and his mother and sisters.
There was $300. loaned to Ira Collton, out of which I wish my neighbourhood debts paid, funeral expenses and tomb stone (the best and cheapest can be got at Columbia Tennessee to be set at my grave, and the remainder applied to the education of the fatherless children of Polly and Lewis.
My dear wife and children I will close my will, praying you to fear God and meet me at his right hand, love God and love one another and God will bless you.
I constitute and appoint my wife and our three sons, Hervey, Edmund, and John, my Executors, and my further will is that this will shall never go to court, nor be proven, nor my executors be qualified. You all know my hand writing therefore safe (save) the trouble and expense. You my heirs are all of age and pass receipts to each other for your legacies and dividends and that makes it lawful without costs to you and it is further my will and desire that if Congress does pass a law in my favor as purchaser of the following lands on all of which I have paid one fourth (Viz) 1 quarter section in 25, 1 in 30 and the Et? adjoining 2 quarters in Sec 33, 1 in 28, 1 in Sec 29, that in Section 28 has one
excellent spring on it. These six all lie in the 3rd and 4th Townships and 8th and 9th Range and the NE quarter of Section 11 and 5 Township 9 Range, my will is that what ever interest or profits that may hereafter arise to me on those seven quarter sections of land, or any part of them, may be equitably divided among my children now named (viz) Poly, Rachel, Edmund and Nancy to them and their heirs forever.
I give my cotton gin to my wife and sons Hervey and John B revoking all other wills and sign and seal this be the only one, twenty seventh of January in the year of our Lord 1827. Thos Dillahunty
In Witness, G G Williams, Perry Bradly.
Whereas I Thomas Dillahunty of the county of Lawrence and state of Alabama aforesaid did on the 27th of January 1827 make and publish my will and whereas in my said will, I did devise to the orphan children of my daughter Polly and son Lewis, the remainder that might be left, after certain charges that are therein expressed were taken out of it, if three hundred dollars then loaned? to and due from Ira Carlton and as the said Ira Carlton has since that time paid and satisfied the said debt, now for these and other good causes I give and bequeath to my sons Hervey and John the sum of three hundred dollars, which said sum is to be held by them in trust for the children of my deceased son Lewis, which said sum of three hundred dollars shall be applied for the purpose of educating grandchildren aforesaid.
I hereby revoke all that part of my said will which made the children of my daughter Polly jointly interested in the devises to which this codicil has reference. August 14, 1828 Thos Dillahunty Witness: G G Williams, Terry Bradley, Daniel Wright.
State of Alabama, Lawrence County
County Court in vacation, return day October 22, 1828. Present the honorable Peter W Taylor Esq Judge of said court. An Instrument or writing purporting to be the last will and testament of Thomas Dillahunty late of said county was proven by Daniel Wright, Terry Bradley, two of the subscribing witnesses thereto, they having deposed
that said deceased acknowledged said Instrument in their presence, and that they subscribed their names thereto as witnesses at his request and in his presence and they believed him to be of sound mind and disposing
memory, upon which proof said instrument of writing is considered to be fully proven as the last will and testament of said deceased so far as relates to the personal property therein mentioned, and the same is hereby ordered to be recorded. The foregoing last will and Testament of Thomas Dillahunty deceased was recorded in Book B Pages 346-351.
Answer of Nathan Boddie (Summarized)
Boddie said that he knows nothing whatever of Thomas Dillahunty, nor of his death, his will, etc.. “This respondent states privately that he never heard of said instrument purporting to be the will of the said Thomas Dillahunty untill long after he purchased the negro woman Rosetta as hiring after mentioned. But Respondent raises here the question, and asks your Honor to considered it whether even conceding the existence of the instrument designated “Exhibit A” the complainant can take any thing under it, as a will the same not having been proved according to law - the more especially as against this respondent, who purchased said negro Rosetta without any notice either actual or constructive of said pretended will - and he now insists upon this as a defence.
Boddie said that even if the will was legal, that it gave Rosette to two people, not just to Sarah Dillahunty - that he is the owner of a negro woman named Rosetta whom he purchased on the 6th August 1844 together with her two children named Harriet and Susan from Thomas Kirkman. This respondent has no knowledge that the girl Roset pretended to be disposed of in said pretended will, and the woman Rosetta purchased by him of said Kirkman are the same person and of this he requires proof.
Rosetta was purchased at a sale made by one William C Dillahunty as trustee ... under a deed of trust executed by Thomas U Lassiter bearing date on the 4th day of April 1842 - certified copy shown here.
Lassiter is the son in law of Sarah, the Complt, having married Harriet Thomas, daughter of Complt, and the person to whom said negro Roset is bequeathed by the said third item of said pretended will and who is the only person under said will as respondent is advised and believes who has any interest in said negro.
Boddie said Lassiter had been in open possession of said negro for three years immediately before the making of the deed - exercising right of possession over her in Franklin County.
Lassiter took her to Tuscumbia and sold her to Kirkman, and no declaration of title on the part of complainant was made in either of said counties.
This Respondent further answering states that is grossly fabulous, and wholly untrue, that he ever contemplated running said negroes from this state or secreting them in any way whatever. He admits that he did hire said negro Rosetta from complainant the date of its commencement ... but he conceives that he is not thereby prevented either from denying her title, or disproving it ...
He had respect for her age and condition and was not disposed to litigate the title with her so long as he could purchase his peace on fair terms, this he was willing to do by paying her hire for the negro, and he was still at the commencement of this suit willing to do so rather than incur the expense and vexation of chancery litigation, the
end whereof no man may tell. But the complainant became dissatisfied with this amicable and peaceful arrangement and demanded the possession of said negroes. At first Respondent contemplated gratifying her even in
this rather than go to law with so respectable and aged a female as Complt who is now as he is informed upwards of eighty years old. But on reflection many difficulties presented themselves to respt suggestive of a more prudent course and justifying in his opinion that which he finally adopted. The Complt was very aged and like all persons at her time of life easily controlled and influenced. She had sons and son in law who had it in their powers if the disposition existed to ? his rights by evil counsels - In addition to which she lived and yet lives out of this state and by removing said negroes to Tennessee as respondent verily believes she would greatly weaken the chances of his
ever getting them again, so he determined to assert his rights, it once however complainant it might be rather than risk so much and when the demand was made upon him as stated in the bill he refused to deliver them up altho he had previously promised to do so, whether more than once he does not recollect, and his belief now is that that promise was upon condition that complt would give security for the return of the Negroes to respt at her death. ....
Nathan Boddie 24 April 1848
Walkers Solicitors for Respondent
Sale of Rosette made on 4 April 1842 between Thomas U Lassiter of Franklin County, and William C Dillahunty and Hervey Dillahunty of Lauderdale County. Lassiter was indebted to $1300. and $1352. and $2741.85 and $800. and $2000 - notes dated in the summer of 1841.
Lassiter sold to William C Dillahunty slaves in his possession in Tuscumbia: Grace, 35, Charity, 28 and her infant boy child at the breast, Anaka, 21, Kate, 22, Cloe, 23, Ann, 13, Armenta, 11, Major, 9, Haywood, 7, Alfred, 6, Andrew, 4, Susan Eliza, each about 1 year old - also Hanna an infant (motherless), also Lewis, 30, Anderson, 25, Robin, 28, Daniel, 28, Mack, 18, Jessee, 18, Felix, 16, Willis, about 15. Also the estate in remainder in Rosetta about 25 years old, the estate in
remainder after the death of Mrs. Sarah Dillahunty - also other property.
Demurrer of Boddie
Interrogation of Mrs. Sidney Caldwell, a witness to be produced, sworn and examined in behalf of the plaintiff in the above state cause.
Are you, or not acquainted with the parties, plaintiff, and defendant in the title of these interrogatories named, or either, and which of them and how long have you known them? 2nd. Were you or not acquainted with Thomas Dillahunty in his lifetime,, if so how long did you know him and where did he reside and if you should answer that he resided in the neighbourhood of Nashville in the state of Tennessee, then declare if you know how long he resided there, and declare also whether or not you resided in the same neighbourhood with him and if you did how long? Did he or not remove from the neighbourhood of Nashville, in the state of Tennessee, if yea, when and where did he go? 3rd. Declare, whether or not the said Thomas Dillahunty had in his possession as owner at any time within your knowledge, a female negro named Chaney, if yea declare if you know the age of the said negro Chaney when you first knew her, and whose property she was at that time, declare also by whom she was raised, and all you know in relation thereto. Declare your knowledge fully and particularly. 4th Was or was not the plaintiff above stated
cause the wife of the said Thomas Dillahunty, and declare if you know, whether or not he is living or dead?
Williamson County, Tennessee
...”I David Campbell one of the said Commissioners have caused to come before me on the 21st day of April 1848 at the dwelling house of Tilman F Atkerson in the county of Williamson in the state of Tennessee, Sidney Caldwell aged 67 years, a witness on the behalf of the complainant in a certain matter of controversy in said chancery court ...
1st I am acquainted with the plaintiff, Sarah Dillahunty, she is my sister and of course I have known her all my life, But I do not know the defendant.
2nd I was acquainted with Thomas Dillahunty in his lifetime. I knew him from the time of my earliest remembrance. He resided in the neighbourhood of Nashville say some six or eight miles from Nashville on Richland Creek. I come out to this county in the year 1796 and I found Thomas Dillahunty here, he having come out some four weeks before and he continued to reside on Richland Creek in the neighbourhood of Nashville, till his removal to the State of Alabama, which if my memory serves me took place about 1818. I have already said he removed from the
neighbourhood of Nashville to the state of Alabama, and as well as I remember about the year 1818 I lived in the same neighbourhood, and within 2 1/2 or 3 miles of him from 1796 till his removal.
3rd I know the said Thomas Dillahunty had in his possession a negro woman named Chaney. I knew and recollect this negro as well as one of my own. I suppose the negro was about two years old when I first knew her. I Recollect that Sister Dillahunty had to keep her in the cradle of nights. She said child Chaney was the property of said Thomas Dillahunty when I first knew her and so continued till he removed to Alabama and he took her with him there. Said Thomas Dillahunty and his wife raised said girl Chaney, she was nearly grown when he removed to Alabama. I lived in the same neighbourhood with said Thomas Dillahunty up to the time of his removal to Alabama, and was frequently at his house, between the time when I first knew the negro Chaney, and that of his removal to Alabama.
And I know he and his wife raised the said negro Chaney. Sister Dillahunty kept raise negro Chaney in the house, and raised her with her own children and did not let her go out with the other black ones.
4th She was the wife of Thomas Dillahunty; he is dead, and has been so for many years.
Sidney Caldwell, Her Mark 21 April 1848
The foregoing deposition of Sidney Caldwell was taken before me on the day and at the place in the Caption mentioned and the answers of the said witness to the annexed interrogations were reduced to writing by me
in her presence, and then the whole of them, as well, as the interrogatories, were carefully read over to her, and she subscribed said deposition in my presence by making her mark, being unable from infirmity in her right hand to sign her name, neither plaintiff nor defendant being present at the taking of said deposition. ...
Deposition of Samson? D Reaves, witness in behalf of the complainant
“Pursuant to the annexed commission to me directed, I have called and caused to come before me at Raymond, at my office in said town in the County of Hinds, in the State of Mississippi, Samson? D Reaves a witness ... Sarah Dillahunty .. Nathan Boddie. “Said witness says that he is acquainted with the parties, he became acquainted with the plaintiff about the year 1835, and with the defendant about the year 1835.
2nd In answer to the second interrogatory, said witness says I was employed by Thomas U Lassiter as an overseer and lived with him in that capacity about twelve months. He left him about the month of May in the year 1836. Said Lassiter resided in Colbert Reserve, Lauderdale County and State of Alabama, when I lived with him. Sarah Dillahunty the plaintiff resided in the family of said Lassiter all the time I did afterwards, untill I left Lauderdale County to reside in the State of Mississippi in the month of January 1838.
3rd In answer to the third interrogatory said witness says I know that the plaintiff Sarah Dillahunty claimed to be the owner of three negro women that were at Lassiters at the time I was living with him, the names of the negroes were Maria, Phillis and Roset. I frequently heardLassiter say while I was living with him that the negroes above named
belonged to his mother in law Mrs. Sarah Dillahunty and he frequently heard Lassiter say “If his Mother (as he called Mrs. Sarah Dillahunty) was displeased at his treatment of her negroes, she might take them away.”
4th In answer to the fourth interrogatory, said witness says, I know that Mrs. Sarah Dillahunty had the girl Roset in her own room every night, and usually of wet or rainy days, and seemed to exercise the priviliges of ownership of her, as also of the other two, and further this deponent saith not, and hereto subscribes his name, S D Reaves
Deposition of Lucinda Carpenter
“Pursuant to the annexed commission to me directed, I have caused to come before me on this the 29th of April 1848 at the residence of Hervey Dillahunty, in the Town of Florence, County of Lauderdale and State of Alabama, Lucinda Carpenter the witness in said commission ....
1st Deponent is acquainted with complainant and has known her 35 or 40 years. Does not know the defendant.
2nd Deponent was acquainted with Thomas Dillahunty decd in his lifetime he resided in Davidson County, Tennessee, near Nashville, when she first knew him. He resided in Lawrence County, Alabama, at the time of his death, and died about the month of August 1828 at his their place of residence.
3rd Deponent states that the complainant in this cause is the widow of the said Thomas Dillahunty decd. Deponent was with the said Thomas Dillahunty decd all the time during his last sickness, present when he died, and present at his burial.
4th Deponent states that said Thomas Dillahunty was the owner of a negro woman named Chaney, at the time of his death. He was the owner of said woman when deponent first knew him, which was long before his death, say 20 years. Deponent further states that said negro woman Chaney did have children, the oldest of her said children was named Roset, the woman now in controversy.
5th Deponent states that she knows that said complainant had the possession, claiming owner, the said oldest child of said Chaney, to wit Roset, after the death of said Thomas Dillahunty decd and continued to be the owner and have the possession of said woman so far as this deponent had any knowledge. This deponent saw said negro woman in the possession of said complainant last, in the summer of 1844.
Lucinda Carpenter 29 April 1848
Deposition of Mrs. Margaret Smith
Pursuant to the annexed commission to me directed I have caused to come before me on this 26th day of April 1848, at the residence of John A Smith in the Town of Florence ... Margaret Smith ...
1st Witness answers that she is acquainted with the parties plaintiff and defendant in said cause, and known them 10 or 12 years.
2nd Witness knows that Thomas U Lassiter did reside in Lauderdale County, Alabama, he resided in Colbert’s reserve 10 or 12 miles west of Florence. He resided there from the time deponent knew him untill he left the county, which was in the spring or summer of 1842 or 1843. Witness does not distinctly recollect the year he removed from his said
place of residence to Tuscumbia, Franklin County in this state.
3rd Deponent did often visit the family of said Thomas U Lassiter while he resided in this county, and Sarah Dillahunty the plaintiff in this suit resided in the family of said Lassiter up to the time that deponent last visited the family of Lassiter which was in the summer of 1839. The wife of said Lassiter was the daughter of said Sarah Dillahunty the plaintiff. Deponent knows this from having heard both mother and daughter oftentimes say so.
4th Deponent did become acquainted with a servant girl living in the family of said Thomas U Lassiter, during her visits there, said servant
girl was named Roset, and said Sarah Dillahunty the plaintiff claimed to be the owner of said girl while she was in the family of said Lassiter. Witness often heard said plaintiff say she was the owner of said girl for her life, or had a life estate in said girl and at her death said girl would go to Mrs. Lassiter and her children. Said girl often waited upon said plaintiff and slept in the room with said plaintiff when deponent was there and deponent heard plaintiff say that she permitted said girl to go out in the plantation to work. Deponent never saw said girl waiting on any other member of the family besides the plaintiff. Deponent further states that she visited the family of said Lassiter
once or twice every year and would stay two or three weeks each visit (deponent makes the latter part of this answer as part of her answer to 3rd inter.).
Margaret C Smith
I do certify that the foregoing deposition was taken by me at the time and place mentioned in the caption, that the same was reduced to writing by me in the words of the witness as near as may be, in the presence and
by her signed in my presence, and that the same was not out of my possession until sealed. In witness whereof I have hereunto set my hand and seal on this 26th day of April 1848 Wm B Wood, Commissioner
Deposition of Mrs. Frances Gregg
Pursuant to the annexed commission, I have called and caused to come before me, on the 18th day of April 1848 at the dwelling house of William Gregg in Lawrence County, Alabama, Frances Gregg, a witness in a certain suit ....
1st I am acquainted Mrs. Sarah Dillahunty the person named, and have known her from my childhood - since about 1820.
2nd I was acquainted with Mr. Thomas Dillahunty from about 1820 to the time of his death, which occurred as well as I recollect about 1828. My father lived about a mile from Mr. Dillahunty I should think. I visited the family frequently. He died at his residence near my Father’s in Lawrence County.
3rd He did own a servant by that name at the time of his death, I know, she had several children, the oldest a yellow girl named Rosetta, familiarly called by the family Letta Zetta? and sometimes Rose.
4th Yes. she was in possession of Mrs. Sarah Dillahunty and owned by her as I always understood.
Frances Gregg 28 April 1848
Moses Wood - acquainted with the parties to this suit and has known them about 15 years. Knows that Thomas U Lassiter resided in Lauderdale County. Said Lassiter came to this county in the spring of 1834 and left this county in spring of 1842 having resided in said county all the intervening period. He knows the negro woman Rosetta and three of her children now in the possession of the defendant to this suit. Knows that Rosetta lived at Thomas U Lassiter’s from the time Lassiter came to this county until he left it and Sarah Dillahunty claimed said negro woman as her property while she was living with Lassiter and said negro woman having waited on her as her servant. Witness has also seen said girl waiting on Lassiter’s family and also at work in the farm of said Lassiter.
Doesn’t know whether or not Lassiter exercised acts of ownership over said negro. He had seen said woman at different times working alternately in the field and in the house, does not know her to have been regarded as a field hand. Said woman worked in the field at times every year after she was large enough to go into the field to work until said Lassiter removed from the county. ...
Deponent states that said Rosetta has three children, that he knows, the oldest Susan is 7 or 8 years of age, he does not know the names or ages of the others. Defendant obtained possession of said negroes by hiring them from the complainant at thirty dollars per annum. Deponent states that said defendant told him that he had hired said negroes from Mrs. Dillahunty and was to give her thirty dollars per annum for them, this was Boddie’s language to deponent as near as he can recollect. Defendant obtained possession of said negroes from complainant in the summer of 1844.
William C Dillahunty
Deponent states that he is acquainted with the parties to this suit has known complainant all his life and the defendant 10 or 12 years. He is the trustee designated in a trust deed now here shown to him Marked No. 1, and as said trustee he sold all the property conveyed to him in said deed except four of said negroes which were included in the trust deed made to Neander H Rice, the names of said negroes as well as he recollects, were Felix, Jessee, Anderson and Willis. He sold said property about the 30th of August 1842 in the Town of Tuscumbia ... He sold the negro woman, Rosetta, therein mentioned to one Thomas Kirkman..
He sold said property at the request of Samuel W Probasco Esqr, James Kirkman and James W Stewart the agent of James Noel.
Witness states that he sold at said sale only a contingent right to said woman Rosetta; said woman was sold subject to the life-estate of Mrs. Sarah Dillahunty, the complainant - He sold only the interest which said Lassiter had in said woman and so proclaimed at the time. He delivered said woman into the possession of Thomas Kirkman, who was the purchaser at the sale ... whether said Kirkman really ever took possession of said woman witness does not know.
Witness answers that he is the person mentioned as the security of said Lassiter in said deed, and he further answers that he was the security of said Lassiter on some paper and indorser on other, to the persons and
for the amounts or thereabouts as well as he recollects as is mentioned in said deed marked No 1. And further this deponent saith not and hereunto subscribes his name. Hervey Dillahunty
Witness states that he was during the latter half of the year 1836 overseer for said Lassiter, during Lassiter’s residence in this county, and during that time said negro woman Rosetta did work under him as said overseer, upon the farm of said Lassiter among the other hands of said Lassiter.
I know both of the parties, and have done so for many years. I resided with and was in the employment of Nathan Boddie the defendant as his overseer during the years 1843 - 1844 and 1845. I know that the defendant Boddie hired from the complainant about the latter part of July 1844 a negro woman named Rosetta. I was informed by defendant
Boddie that he was to pay complainant $30. per year hire for said negro woman and feed and chothe her two children. The time for which he first hired her was 12 months from the latter part of July 1844 and then he hired her on the same terms as I learned from him for twelve months more so that the term of the last being expired in the latter part of July 1840. The names of the children of said woman Rosetta were Susan and Harriet, the former is now I suppose about six years old, she may be seven, the latter about four years old. Said woman, Rosetta, was pregnant when I left Boddies in January 1840.
L E Powers
28 April 1847
I am acquainted with the parties and have known them for six or seven years. I was present when a conversation took place about the last of July 1846 between complainant Dillahunty and defendant Boddie, at the house of Hervey Dillahunty in Lauderdale County. I come up at the time the complainant and defendant were conversing about a negro woman that defendant had hired from complainant. I understood from the parties that the time for which defendant had hired said negro woman was then about out. Complainant stated that she wanted to send the negro woman then at defendants house up to David Gresham’s and have her and her children there and take a woman of hers then at said Gresham’s and who had no children away to wait on her the complainant. Defendant Boddie promised her that in a few days he would take the negro woman and children then at his house up to Martin Cassity & Co Factory; so that Gresham might get her from that place. Said Gresham was present, and said Boddie asked
Gresham to meet him at said Factory and take said negro woman and children home with him. But said Gresham stated he had no means of conveying said negro from the Factory; to which Boddie replied that Gresham must meet his negro boy and waggon at the Factory and show him the way to his (Gresham’s) house, and he Boddie would send them all the way to said Gresham’s house.
I did after the conversation above detailed, call on defendant Boddie and request him to send complainants slaves to her. I was requested to call on defendant for the slaves in question by complainant. Said Boddie said in reply to my demand, that he would not do so unless complainant would give him a bond and security - that he had bought the woman from Thomas Kirkman, and he would not be safe, or would have no recourse back on Kirkman unless he took a bond for the negroes.
The bill charges that under the will of Thomas Dillahunty, the husband of complainant, she became entitled to a life estate in a certain slave named Rosetta, which she took into possession and kept untill the year 1842 when Thomas U Lassiter who had married the daughter of complainant to whom the remainder in the slave was bequeathed by Thos Dillahunty, took her to Franklin County against the wish and positive prohibition of the complainant.
That Lasiter conveyed the interest of his wife to Wm. C. Dillahunty by deed of trust, expressly reserving the life estate of complainant, that Dillahunty sold the slave and her children under the deed, and one Thos Kirkman became the purchaser, that Kirkman sold them to the defendant who hired them from Complainant a year or two and when the last term of hire was out refused to deliver them to complainant, and claimed them as his own. That the slaves are family slaves for which complainant has a great affection having raised the woman in her own family - and because
of her great fidelity to and affection for Complainant - and further because they were bequeathed her by her husband, for these reasons she values them more highly than their price in money, and that a pecuniary
compensation would be inadequate.
To the bill is attached a certified copy of the will and its probate before the orphans court of Lawrence County on the 22nd October 1828 which is tendered as an exhibit, and prayed to be made a part of the bill.
The Complainant prays that the slaves be delivered to her, and for compensation by way of hire for their detention. To this bill a demurrer is interposed, and under it the following grounds are relied on to sustain it and impeach the Complainant’s right to recover.
1st That the will under which the Complainant claims as exhibited has no sufficient evidence of probate upon, which it should have been recorded, and that untill it is proven, no rights to personal estate can be asserted under it.
2nd That between the clause of the will under which the plaintiff claims a life estate in the slave Rosette, and a subsequent claim in which the same slave is given absolutely to Harriet T. the wife of Thomas U Lassiter there is so great a repugnance that both cannot stand together, and the last must prevail which divests the complainant of all claims to the slave.
3rd That if the complainant is entitled to the life estate, the defendant is entitled to the remainder, and in a bill like the present, the complainant should offer to secure the remainder to the defendant, or failing to do so the bill is fatally defective.
Upon the first ground of demurrer it is contended, that as the order of probate does not recite that notice was given to the next of kin, or show that there were non such residing in the state, it is fatally defective, and the probate is void, inasmuch as such notice or reason for not giving it, is necessary under the act of 1820 (Clay’s Digest 303, 34) to give the Orphans Court jurisdiction to take the probate of wills.
By the act of 1807 (Clay’s Digest 302, 26) it is provided that “The County Court shall have full power and authority to take probate of wills.” By this act a general jurisdiction over the subject of proving wills is conferred on the Orphans Court, and in my view of the act of 1820 its provisions are not necessary, nor were they designed, to confer
jurisdiction over wills upon that court. It is merely directory and a failure to comply with its provisions would at most make the act of that court voidable, and not render it void. Again by the 54 of the Act of 1806 (Clay’s Digest 595 15), a time is limited within which persons interested in an estate must litigate the validity of a will, or the
rights of legatees will be perfect and not liable to be disturbed by persons claiming as heirs of the testator.
This time is five years. In the present case more than three times that period has elapsed, during all which the parties in interest have acquired in the will ____. But it is contended that this limitation operates only against the heirs at law and next of kin, and cannot affect a stranger in blood and that the defendant in this case must be regarded as a stranger. If any weight were due to this argument, in a proper case it certainly can avail nothing here, as the defendant is a privy in estate with one of the legatees, and claims under a deed which expressly recognizes the right and protects the claim of the complainant.
Kirkman bought Lassiter’s right, and sold no more to the defendant. Again the defendant himself by hiring the slaves has recognized the rights of complainant and estopped himself from denying it.
The second ground taken is also untenable. The two clauses of the will are not irreconcilable, or repugnant but both may well stand and when this can be done and full effect can be given to every part it is the duty of the court to do so. Again the last reason assigned against the first ground of demurrer is equally fatal to this. Upon the third ground
of demurrer, it is sufficient to say that the present does not belong to that class of cases in which the complainant is required to offer any thing to the defendant before she will be allowed to seek her rights through the medium of this court. In fact, unless a strong case of hazzard to the rights of the remainder now were made out, and this danger arising from the fraudulent conduct of the owner of the present interest a court of Equity will never interfere in behalf of the former, so as to disturb, for a moment, the enjoyment of the latter.
For these reasons the demurrer must be overruled. On the merits of the case, the complainant has shown all that is necessary to entitle her to the relief she seeks. It is, however necessary that an account should be taken of the value of the slaves, by way of hire, since the defendant has had them in possession, and for this purpose the case must go to the Master.
Let the following decree be enrolled and orders entered.
It is ordered, that the Master take, state and report an account between the parties, ascertaining the annual value of the slaves named in the bill, by way of hire, for the time during which they have been withheld by the defendant, and for which he has paid her no hire and that he calculate interest on each year’s hire at the legal rate from the 1st
day of January in the succeeding year untill the taking of said account. It is ordered, adjudged and decreed, that upon the coming in and confirmation of the Masters report, the defendant pay to the complainant the sum reported to be due her within thirty days from the rising of this court with legal interest thereon from the time of taking said
account untill such payment. And in case he fails that the Register issue execution therefor.
It is further ordered, that the Register issue to the sheriff of Lauderdale County immediately on the rising of this Court an order requiring him to take into his possession and deliver to complainant the negro woman Roset and her children, Susan Harriet and Charles, and any other child which may have been born of her since the filing of this
bill in this case, if to be found in the possession of the defendant, or any person claiming under him since the commencement of this suit. It is further ordered, adjudged, and decreed that the defendant pay all costs to be taxed by the Register.
D G Ligon, Chancellor
... To arrive at a fair estimation of the value of the services of the negroes I have examined as Witnesses, Baylor B Barker, Neander H Rice, Henry Richard and Stephen C Harrah in addition to the testimony on file in the cause and from their testimony I find that said negroes were worth in the year
It appears that the defendant is indebted for the services of the negroes from the 1st of August 1846 up to this date. The account therefore stands as follows
Hire for 1846 five months $12.50
Interest up to 11 May 1849 2.35
Hire for 1847 $30.00
Interest up to 1 May 1849 3.27
Hire for 1848 25.00
Interest to 11 May 1849 .70
Hire for 1849 up to this date 5.41
I find therefore that the complainant is entitled to a decree against the defendant for the sum of seventy nine dollars and twenty three cents as of this date, May 11, 1849. S T Thustin, Register
The case was confirmed by the Chancellor.