I. Jefferson’s State of the Case and Opinion thereon
Monticello Feb. 15. 1782.
James Freeland having cohabited with Mary Williams and by her had issue a son Robert Williams, and having afterwards intermarried with the said Mary, made his last will and testament bearing date the 14th of Mar. 1770. duly proved and recorded and therein lent1 to his wife Mary for her life or widowhood all his estate real and personal, consisting of lands, slaves and mere personalties and after her death or marriage gave it to the said Robert Williams in fee. The testator died. Robert Williams became felo de se during the life of the widow leaving neither wife nor child. And the question is What goes with the estate?
The remainder to Robert Williams was a vested remainder2 and therefore capable of transmission to his heirs had he had any (1. Salk. 237, ib. 224). But a doubt is expressed whether, as having been a bastard, he could have any heirs? And if he could, whether the transmission to them be not cut off by the felony committed on himself? With respect to the latter question, a felo de se does not forfeit his lands of inheritance, and this by the rules of the common law, and by our act of assembly of 1727 slaves are not forfeitable except in cases where lands are subject to forfeiture. Therefore they are not forfeitable for a felony de se. But all his other chattels real and personal are forfeited for this cause. In answer to the former part of the question Whether Robt. Williams could have any heirs I observe that a bastard being deemed in law the child of nobody can have no heir who is obliged to derive his descent through the blood of the father3 or mother. That is, he can have no collateral heir: but heirs of his body he may have. However the bastard in the present case having none such, his lands of inheritance whether in possession4 or remainder are escheated to the commonwealth for defect of blood.5 As the bastard can have no heirs but of his body to claim the inheritance of his lands, so is he denied relations, except they be of his body, to claim his personal estate. (Jones v. Goodchild 3. P.W. 33). Under our former government therefore the king became entitled to his personal estate and by letters patent granted it to such person as he thought proper and administration was thereupon granted to the patentee, Manning v. Napp, 1. Salk. 37. Under our present government the commonwealth becomes entitled instead of the king to the personal estate6 in such a case. As to the slaves a doubt may be raised on the proviso of the act of assembly of 1705, declaring that slaves shall not escheat on the death of a person without lawful heirs but that in that case they shall be accounted and go as chattels and other personal estate. But to me this proviso appears to carry a contradiction […] in itself and therefore to be nugatory for I know no instance wherein lands of inheritance are liable to escheat but [not?] the personal [estate which?] goes to the public also. When therefore the first member of the proviso says that slaves shall not escheat, and the second that they shall in that case go as personal estate, it is saying first that they shall not go to the commonwealth, and then that they shall. If however we must give some meaning to this proviso I should suppose it would be extended only to the cases of persons convicted of capital crimes where it might be allowed to revive the rights of relations in these instances wherein the law acknowleges such relations to exist but I do not think it should be further extended to the double of effect first of creating a relations heir between a bastard and his collaterals contrary to one fundamental principle and then in opposition to another to give to those collaterals his personal estate.7
Upon the whole then my opinion is that the lands, slaves and personalties of Robert Williams whether in possession or remainder are become the property of the commonwealth for defect of heirs and next of kin to him.
As to the lands, the act of May 1779 concerning Escheators has made it a duty in the escheator of the county to proceed to have the escheat found by inquest, to return that inquest to the General court where after it shall have laid one year without traverse he is to proceed to sell them to the highest bidder. But I think there has been8 one instance where on escheat from an alien and application to the General assembly they have granted the lands to a relation of the decedent, and would therefore advise Mr. Mace Freeland uncle to Robert Williams on the side of the father9 to apply to the assembly for a grant of them, and to rest his application on the ground of natural relationship, but more especially on that of the lands having been10 originally the inheritance of his house.
As to the slaves and personal estate, no cases have arisen under the present government to determine whether the Executive may by letters patent grant either the property or care of them to any one, or whether the application must be to the assembly. I would therefore advise a petition to the Executive for such letters patent, and that the petition to the assembly before recommended be extended to the slaves and personalties also.
Dft (DLC); much revised and interlined, some of the more important alterations being indicated below.
The act of May 1779 Concerning escheators was drawn by TJ, as was its predecessor of 1777 (see Vol. 2: 168–71, 279–85).
1. TJ wrote “gave” and then deleted it, interlining the word “lent.”
2. TJ wrote “sufficient … had he died a natural death to transmit” and then deleted the words.
3. TJ first wrote “which is obliged to derive his line of descent through a father or mother” and then altered the words to read as above.
4. TJ first wrote “reversion” after the word “possession” and then deleted it.
5. TJ first wrote and then deleted: “but it is not so as to his slaves.”
6. At this point TJ added the words: “of such a person, but no cases have arisen to settle the question whether the Executive may issue letters patent disposing of the personal property or whether […]” and then altered the passage to conclude the sentence as above.
7. This passage interpreting the effect of the Act of 1705 appears to have given TJ more difficulty than any other part of the case, if one is to judge by the number of alterations, interlineations, and marginal revisions. It would needlessly complicate the presentation of the text to attempt to follow these many revisions, none of which seems to vary in important particulars from the final version.
8. TJ first wrote: “I have known one instance” and then altered the clause to read as above.
9. TJ first wrote and then deleted: “[…] by whom the lands came.”
10. TJ first wrote and then deleted “[…] transmitted from his father.”