John W. Eppes, late of Buckingham was in his lifetime seised & possessed, in right of his wife, of a tract of land of 819. acres, in the county of Albemarle, called Pantops. the wife died, leaving an only child, the present Francis Eppes. the father, supposing it would be for the benefit of his son, sold the land during his infancy for the sum of 11,000. D. guarantying the confirmation of his son when of age. he gave his son a particular negro while under age. on his attainment of full age the son joined his father in a deed of confirmation, in which was this clause. ‘in considn of the conveyance and delivery to the sd Francis, at the close of this present year, 1822. of as many negroes as, on a fair valuation, shall be worth 4000. D. and in consideration also that the sd John W. Eppes will, at or before his death, as he hereby covenants to do, devise or convey to the sd Francis and his heirs so much of his estate in lands, or negroes, or both, at the option of the sd John W. as, at a fair valuation, shall be worth the further sum of 7000. D. the sd John W. & Francis do give, grant, bargain, sell & confirm Etc’ after this he gave him 5. negroes by a short deed, to be delivered at the end of this year, 1823. ‘in consideration of natural affection,’ and entirely silent as to any intention of their being, or not being, to go towards satisfaction of the 7000. D. which debt is not mentioned in the deed. the negroes of the value of 4000. D. accordingly delivered at the close of the year 1822. and in Sep. 1823. the sd John W. died, without having exercised his right of election by conveying or devising either lands or negroes to his son, or in any other way, towards satisfying the 7000. D. but he left a will devising his whole estate real & personal to M. B. Eppes, his wife, during her life, & expressly declaring that no advancement hitherto made to Francis, his son, shall preclude his right as a child; but, at her death, the estate shall be divided equally, share & share alike, among all the children.’ and he made his wife, his son Francis, & mr Burton her brother in law his executors.
The questions arising in this case are
1. In whom is now vested the right of election whether the 7000. D. shall be satisfied in lands, slaves, or both?
2. if in Francis, and if he prefers negroes (as is the fact) can he select them individually from the whole stock, or in what other way are they be allotted and valued?
3. if, consulting the convenience of the estate, he consents to recieve them, a part now, and other parts at other times, being himself an exr, will he be entitled to recieve interest on the balance or balances which shall remain, until satisfied by the actual delivery of negroes?
4. when he recieves a part, in negroes for instance, will that conclude his election as to the whole, or will his right of election, either of lands or negroes, as he shall chuse, continue until he calls for further delivery?
5. can the 5. negroes, given after the deed, in consideration of natural affection, be set off against the 7000. D.?
6. will his qualifying as exr, enable him the better to secure his rights? or would his declining the exrship, subject him to greater difficulty in securing them?
7. should he die before any election as to the whole or any part, in whom would the right of election then be?
ViU: Ambler Papers.