Bill in Chancery of Wayles’s Executors against the Heirs of Richard Randolph
[on or before 2 Mch. 1795]
To the honorable George Wythe esquire Judge of the honorable the high Court of Chancery, humbly complaining, shew unto your honor, your orators Francis Eppes and Thomas Jefferson executors of the last will and testament of John Wayles deceased; that on the 13th. day of December 1772, Richard Randolph esquire of Curles being indebted to James Bivins of the City of Bristol, in the sum of £740. sterling, executed a bond to the said Bivins, binding himself, his heirs &c. in the penalty of £1480. like money; to the payment of the said sum of £740. with interest from the 30th. September then next following, within twelve months from the date; the said bond was also executed by the testator of your orator as security to the said Randolph. That the said Bivins shortly after departed from this Country and left the bond aforesaid in the care and custody of your orators’ testator, taking a copy and a receipt for the original. That some few years after this, your orators’ testator departed this life, being then in possession of the said bond, no part of the principal or interest of which had been paid off by the said Randolph, so far as they know or believe. That in the year 17 a suit in Chancery was instituted by the representatives of the said James Bivins, in the Federal circuit court for this state, against Henry Skipwith and Anne his wife, late Anne Wayles executrix of the said John Wayles, for the recovery of the principal and interest due on the said bond, and at the May Session 1793, a decree nisi was entered for the sum of £740. sterling, of the value of 3288 dollars and eighty nine cents, with interest at five per cent per annum from the 13th. day of September 1773, till payment, and the costs. That neither the said Skipwith and his wife, nor your orators being able to shew any just cause against the decree, the same remains absolute. All which will more fully appear, reference being had to the said original bond now in the possession of your orators, and ready to be produced, and by the records of the said Federal circuit Court. That your orators having the management of the estate of their testator, have thought it belonged to them to pay, out of the assetts in their hands, the said debt, though they are not named in the decree; they have accordingly made considerable payments and are going on to make more; an account of all which will in due time be laid before this honorable Court. They further beg leave to shew unto your honor, that the said Richard Randolph, on the 21st. day of March 1786, made and duly published his last will and testament and thereby gave the residue of his estate after several devises and bequests to be equally divided between his four sons Richard Randolph, David Meade Randolph, Brett Randolph and Ryland Randolph, and he appointed his said four sons his executors. That shortly afterwards, he departed this life, and the said will was duly proved and admitted to record in the County Court of Henrico, as will more fully appear reference being had to a true copy of the said will, and to the certificate of the probate thereof, which are hereto annexed. That the said Richard Randolph deceased, died largely indebted, and the said executors give out in speeches that they have already sold all the slaves and the personal estate of their testator and applied the proceeds to the discharge of his debts so far as the same would extend, and that there are many debts to a large amount still due from the estate. Whether this be so or not, your orators are at present unable to say certainly, but they believe they have yet assetts in their hands. They further shew unto your honor, that on the 11th. day of October 1780, the said Richard Randolph being indebted on the bond and otherwise, to an amount equal to, if not exceeding, the whole of his estate, and being seized of a tract of land in Bermuda hundred in the County of Chesterfield, and possessed of a large number of slaves, did seal and execute a deed conveying the said tract of land and all the stocks of horses, cattle, sheep and hogs, and all the plantation utensils on the said land, together with nineteen slaves named in the said deed, unto the said David M. Randolph, his son, his heirs and assigns forever, for and in consideration of his natural love and affection for his said son, and for his advancement in life, as will more fully appear, reference being had to a true copy of the said deed which is hereto annexed (marked B.) That the said Richard Randolph deceased, being indebted as aforesaid, and being seized of a large and valuable estate in the said County of Henrico called Curles, did, on the 20th. day of September 1785, execute a deed conveying the same to his son Richard Randolph, above named, his heirs and assigns forever, after the death of him, the said Richard Randolph deceased, and Ann his wife; the consideration expressed in the said deed, being a marriage shortly to be had and solemnized between the said Richard, the son, and Miss Maria Beverley, the daughter of Robert Beverley, but the said Maria was not a party to the said deed. That the same was not proved until the third day of July 1786, as will more fully appear, reference being had to a true copy of the said deed, and to the certificate of the proof thereof in the County Court of Henrico, which are hereto annexed (marked C). That the said Richard Randolph deceased, was at the time of making his said will, and at his death, seized in fee simple of two considerable tracts of land in the Counties of Cumberland and Prince Edward, the one called Sandy Ford, the other Clover Forest; as also a valuable mill and acres of land adjoining, also in the said County of Prince Edward; he was also seized as aforesaid of a tract of land containing about 130 acres, lying in the County of Chesterfield, and another tract of about the same extent lying in the last mentioned County, known by the name of Elams. That by the said will he devised the tract called Sandy Ford to his said son Brett Randolph and his heirs forever; the land known by the name of Clover Forest and the tract opposite to Curles, he devised to his said son Ryland and his heirs forever. The mill and 50 acres adjoining, he gave to his sons Ryland and Brett, in fee simple, as tenants in common, and the tract called Elams he devised to his son David M. Randolph and his heirs forever, as will more fully and at large appear, reference being had to the said will. That the said devisees entered upon and were seized of the said tracts of land respectively and are now seized of them as aforesaid. That the said Richard Randolph the younger is the eldest son and heir at law of Richard Randolph deceased. That the aforesaid deeds executed by the said Richard Randolph deceased, were made by him when he well knew that his estate in possession was insufficient to pay his debts, and with intent to defraud his just creditors and that as your orators are advised, they are void as to the creditors not only for this reason but because the conveyance to David M. Randolph was not made on consideration good in law against creditors, and the conveyance to Richard Randolph was not recorded in due time according to the act of assembly in that case made and provided. That they are entitled, as they are advised, to a discovery of the personal estate and slaves that have come to the hands of the said executors, and an account of the manner in which they have been disposed of, and if any should now remain in their hands to have them applied to the discharge of the debt aforesaid, or to a reimbursement of what monies your orators may have paid in discharge of the same. That if the said assetts should prove insufficient, they are entitled to a like satisfaction out of all the said lands, or any other real estate of the said Richard Randolph deceased, they being entitled in equity as they humbly conceive in respect to the real estate of the said Richard Randolph deceased, to stand in the place of the original creditor on the bond aforesaid, and of any other creditors by specialty who have been paid their debts out of the assetts in the hands of the said executors. That they have in a friendly manner represented their just claims to the said executors and requested them to pay off the balance due on the said decree, and to reimburse them for such payments as they have made in discharge of the same. Your orators further charge that the said Richard Randolph, the son, hath conveyed the said estate called Curles to Anthony Singleton by way of mortgage, and the said Singleton is since dead, and William Fenwick and William Berkeley are his executors; the said Richard Randolph hath also conveyed the same estate by way of mortgage to William Heath, who, together with the said William Fenwick and William Berkeley, are prayed to be made defendants hereto. But now so it is, that the said Richard Randolph, David M. Randolph, Ryland Randolph and Brett Randolph, altogether refuse so to do. In tender consideration whereof, and for as much as your orators are only relievable in equity; To the end therefore that the said Richard Randolph, David M. Randolph, Brett Randolph, and Ryland Randolph, who they pray may be made defendants to this their bill, may on their corporal oaths make full, true and perfect answer to all and singular the premises, and that as if the same were herein again set forth and they thereto interrogated. That they may make a true discovery of the assetts that have come to their hands of the estate of the said Richard Randolph, and make up a full and compleat account of their administration; that the demand of your orators may if the personal estate is insufficient, be satisfied out of the real estate of the said Richard Randolph and that as well the lands and other property mentioned in the deeds aforesaid as those devised may be made liable thereto, and that your orators may have such other relief as is consistent with equity; may it please your honor to grant a writ of Subpoena, commanding the said Richard Randolph, David M. Randolph, Ryland Randolph and Brett Randolph &c. and your orator &c.
Tr (PRO: T 79/19); in claim of James Buchanan & Co.; exhibited in Virginia High Court of Chancery on 2 Mch. 1795; in hand of John Brown, clerk of Virginia Court of Appeals; consists of part of record of case of Eppes v. Randolphs, in 48 numbered pages sealed by Brown on 29 Dec. 1804 and certified by Governor John Page, 31 Dec. 1804. Enclosures: (1) Last will and testament of Richard Randolph, 21 Mch. 1786, specifying distribution of his estate and appointing his sons Richard Randolph, David Meade Randolph, Brett Randolph, and Ryland Randolph as executors and his friends David Meade, Richard Kidder Meade, Edmund Randolph, and Jerman Baker as guardians of his children, witnessed by Jerman Baker, James Currie, Henry Randolph, and Thomas Blodget, with attestation of Clerk of Court Adam Craig that the will was proved in a monthly court of Henrico County on 3 July 1786 by the oaths of James Currie and Henry Randolph (Tr in same, in hand of John Brown). (2) Deed, 11 Oct. 1780, Richard Randolph the elder conveying to David Meade Randolph an estimated 900 acres in Bermuda Hundred, Chesterfield County, with all its buildings and appurtenances, utensils, livestock, and 19 slaves, recorded at General Court in Richmond, 11 Oct. 1780, as attested by Clerk of Court John May (Tr in same, in hand of John Brown). (3) Deed, 20 Sep. 1785, Richard Randolph the elder conveying to Richard Randolph the younger the tract known as Curles in the parish and county of Henrico, with adjoining tracts and appurtenances, witnessed by Brett Randolph, Wilson Cary, and Thomas Nelson, Jr., also witnessed on 21 Mch. 1786 by James Currie, Jerman Baker, Henry Randolph, and David Meade Randolph, proved in Henrico County court on 3 July 1786 on the oaths of Currie, Henry Randolph, and David Meade Randolph as attested by Clerk of Court Adam Craig, with certification by Currie on 25 Mch. 1794 as to the dates of witnesses’ signatures (Tr in same, in hand of John Brown).
The lawsuit that commenced with this bill in chancery arose from an issue that had its origins in 1772, when the Bristol firm of Farell & Jones acted as broker for the consignment to Richard Randolph and John Wayles, TJ’s father-in-law, of a cargo of African slaves for sale in Virginia. Probably due to a copying error in the case record, in the above complaint an incorrect date, the 13th. day of December 1772, is attributed to the bond that Randolph and Wayles gave to James Bivins, the captain of the ship The Prince of Wales, on 30 Dec. 1772. The copy of the bond with Wayles’s receipt is described in the note to Wayles’s letter to Bivins of 25 Jan. 1773 (printed in Vol. 15: 655 as Document ix of a group of documents on the debt to Farell & Jones and the slave ship The Prince of Wales). Since this bond did not involve Farell & Jones, it was not part of the agreement negotiated in February 1790 between Richard Hanson, the firm’s agent in Virginia, and Wayles’s executors—TJ, Francis Eppes, and Henry Skip with (see Memorandum of Agreement between Richard Hanson and Executors of John Wayles, [7 Feb. 1790], printed in Vol. 15: 674–6). In 1791 Bivins’s executors had instituted chancery proceedings in federal circuit court, which in a decree in 1793 held Wayles’s executors liable for the payment of the bond (see List of Unretained Letters, [ca. 9 June 1794], and note).
The above bill in equity set the matter on a new course. Wayles had only been security for the bond to Bivins, with Randolph its principal. TJ and Eppes, therefore, sought to make the estate of Randolph, who had died in June 1786, responsible for payment. That was a formidable task, since any assets of the heavily indebted Randolph were presumed to be long gone and inaccessible to creditors—“they are making away with the Estate,” Hanson said of the heirs in 1791. Although the Richmond attorney John Wickham may have drawn up the bill of complaint printed above, it was TJ who contrived the key strategem: to challenge the disposition of the estate’s assets by probing, through technicalities, the legitimacy of two major conveyances of land from Randolph to his sons (Hanson to Farell & Jones, 17 Mch. 1790, 14 May 1791, extracts in Farell & Jones claim, PRO: T 79/30; TJ to Eppes, 28 Aug. 1794; TJ to Wickham, 20 Jan. 1797).
Since multiple court judgments already encumbered lands that had devised upon two of Randolph’s four sons, Brett and Ryland, by their father’s will, the suit hinged on whether or not their brothers, David Meade Randolph and Richard Randolph the younger, were “fair purchasers” of tracts their father had transferred to them by deed during his lifetime. If they were not, those lands would be liable to claims by creditors. The deed of the 11th. day of October 1780 for Bermuda Hundred, if based solely on Richard Randolph’s paternal affection for David Meade Randolph, lacked sufficient consideration to constitute a fair purchase under the law. The deed of the 20th. day of September 1785 could not be challenged on the same basis, for its conveyance of the Curles plantation to the younger Richard Randolph, made in consideration of his pending marriage, was adequate for a fair purchase. The Curles deed, however, might be vulnerable on the simple question of its date, for it was not proved in court until 3 July 1786. Under an act of assembly passed in 1748 “for settling the Titles and Bounds of Lands,” a deed had to be recorded within eight months of its “sealing and delivery,” a requirement found also in an act—part of the revisal of the laws—that was passed in 1785 to take effect in 1787 (Hening, description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, Richmond, 1809–23, 13 vols. description ends v, 409, xii, 154, 158; Call, Reports description begins Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia, Richmond, 1801–33, 6 vols. description ends , ii, 125–90; above in this series, Vol. 2: 405–9).
On the filing of Eppes’s and TJ’s complaint, the judge of the High Court of Chancery, TJ’s old law mentor George Wythe, granted the requested process of subpoena. David Meade Randolph submitted an answer as acting executor of his father’s estate and for himself personally on 6 June 1795, and his brothers filed individual answers on 12 Mch. 1796. In reply to the critical points about the two deeds, the Randolphs presented evidence that the Bermuda Hundred indenture, although it did not say so on its face, was “in consideration of the marriage,” part of a prenuptial bargain between David’s father and his prospective father-in-law, Thomas Mann Randolph, Sr., and they contended that the Curles deed dated not from 20 Sep. 1785 but from 21 Mch. 1786, when it was newly witnessed (Virginia Court of Appeals record, in claim of James Buchanan & Co., PRO: T 79/19; Call, Reports description begins Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia, Richmond, 1801–33, 6 vols. description ends , ii, 127–32).
In the spring of 1797, after depositions had been taken regarding the deeds’ technical points, other creditors of the Randolph estate, all of whom had old unpaid judgments for debt against Richard Randolph the elder, joined Wayles’s executors as plaintiffs in the suit. The new parties to the case were: John Lloyd, executor of the English firm of Capel Hanbury and Osgood Hanbury; Thomas Main, executor of John Hyndman, who was the surviving partner of James Buchanan & Co., another British firm; Thomas Pleasants of Virginia, the executor of Robert Pleasants, Jr.; and Charles Carter, as a trustee for William Byrd. The entry of new complainants required the filing of their bills of complaint and answers by the defendants, and introduced the question of whether the earlier court judgments constituted liens on the Randolph lands. On 25 May 1797, Wythe ordered Commissioner Andrew Dunscomb to submit an account of the properties of the deceased Richard Randolph beginning 16 July 1770, the date of the earliest of the prior judgments for debt (Call, Reports description begins Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia, Richmond, 1801–33, 6 vols. description ends , ii, 132–5).
Wythe issued his opinion in the case on 5 Oct. 1797. He held that the 1780 conveyance to David Meade Randolph was legitimately in consideration of marriage and could not be challenged, but he ordered that the lands of the younger Richard Randolph be sold to pay creditors, on the basis that too much time had expired between the writing of the deed in September 1785 and its recording the following July. Richard appealed the decision to the Virginia Court of Appeals, which simultaneously heard a suit initiated by his father-in-law, Robert Beverley, who had bestowed considerable property on his daughter as part of the marriage arrangement with the Randolphs and sought confirmation of Richard’s title. For eighteen months the Court of Appeals was delayed by the recusal of three of its five members who considered “themselves interested in the event of this suit, or otherwise disqualified to sit therein” (Virginia Court of Appeals record, PRO: T 79/19; Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , v, 148n). By the time replacements were found and the panel heard the case in November 1799, Richard Randolph the younger had died. It took three days to argue the suit, with Daniel Call, William DuVal, John Warden, John Marshall, and Edmund Randolph representing the appellants—the Randolphs and Beverley—and George Hay and John Wickham arguing for the creditors (Virginia Court of Appeals record, PRO: T 79/19; Call, Reports description begins Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia, Richmond, 1801–33, 6 vols. description ends , ii, 137–83).
In a decree read on 9 Nov. 1799 by Edmund Pendleton, the presiding judge, the Court of Appeals ruled in the Randolph heirs’ behalf. The court held that the deed to Curles was sealed and delivered on 21 Mch. 1786 and so had been properly recorded within the required eight-month period. The appeals court also affirmed that the conveyance to David Meade Randolph had been in consideration of marriage, and held that any liens deriving from the old judgments against the elder Richard Randolph had expired (Call, Reports description begins Daniel Call, Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia, Richmond, 1801–33, 6 vols. description ends , ii, 183–9). Conceding one point, the court did agree that Wayles’s executors should “be considered as bond creditors, standing in the place of” the original bondholder, Bivins (same, 188). That ruling entitled them to seek redress against the estate’s real property, in effect granting them higher standing in the long queue of demands against Randolph’s estate than they would have had as simple contract creditors (Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , v, 156n). But since no Randolph property was ruled liable to seizure by creditors, that designation had no practical effect, and TJ, Eppes, and Skipwith were left with the obligation to pay the 1772 Randolph-Wayles bond (TJ to William Short, 13 Apr. 1800).
The records of the High Court of Chancery are no longer extant. Some documents from the Buchanan & Co. claim (PRO: T 79/19) and Call’s Reports are printed with notes in Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , v, 117–60.