From John Taylor, with Jefferson’s Opinion on Mary Wayland
[16 Aug. 1782]
Your most Curious Council is required on the following Cases.
|Case the 1st.||Adam Wayland of Culpeper County in the Virga. State, after 1st. Lawful Marriage had 6 Children by his wife and She pregnant with the 7th.—Made a Will by which will he bequeath’d his wife one full Third part of his Estate, his wife in time of her pregnancy was Taken with the Small pox and Died—after remaining a widower Some Time he married again. The remainder of his Estate by the aforesaid Will he left to be Eaqually Divided, among (all) or as the Executors have it his Children, without nominating So much as even One of them—having a View as must be Suppos’d by that Omission of a future posterity, which According happen’d by his Second Lawful married wife, and then himself died Leaving 2 Small Children (a Son and a Daughter) without any Other will than that made in his first wifes Lifetime, which said Will was prov’d in Court, orders Issued for appraisers to appraise the Estate and Gentlemen to divide, giving the widow her Thirds And her Two Children an Eaqual part with the 6 by his first wife. The Court Granting her the Guardianship to her own Children, and to be (possess’d of their) or at least to have the Care of their Estates during their Minority, which Accordingly was Set apart and put in her possession by the Executors.|
|Case 2d.||The Executors by Some Council Since received Cavil with her that her 2 Children have no right to Any part of the Estate, and She Only a right to her thirds of the Lands Slaves and mills and Only a Childs part of the movable Estate (viz.) 1/7th. and Threaten to Sue her for Her 2 Childrens part and what She has received over a Childs part of the Movable Estate (or 1/7 th.).|
|Case 3rd.||There is 3 Tracts of Land, one whereof the heir at Law pretends to Hold as a Gift from his father; by Marriage Contract, he neither Married the Woman, has no Deed or record from his father nor Any proof his own Oath Excepted. How are Those Lands to be Divided to do the widow Justice—She having renounc’d the will in Nine Months after Probate.|
|Case 4th.||The Widow on the Mannor plantation Sow’d a field with wheat last fall which in april Last the Executors Came and offer’d to rent out with the Cornfield And pasture Ground, the widow warn’d them to Concern themselves with nothing Concerning the Mannor plantation, upon which they at that Time desisted Only Among themselves Judging the Quantity of wheat they thought the field might Make, but Since the wheat has been reap’d they Came and fore[warn’d?] the widows Overseer (not her) from removing the wheat out of the field, the widows Right in the mannor plantation relating to Croping, working none but hers and her Childrens people with an overseer thereon required.|
|Case 5th.||The Executors Sent the Collector to Collect the widows and Her Childrens Taxes which She paid by the Hand of Capt. Henry Field, who on her behalf Took receipt for the Same as may appear—whether this Does not in Measure Establish hers and her Childrens property is the Case.|
|Case 6th.||The Heir at Law has a Negroe man in his possession which he Says his father gave him, but has neither record nor witness to prove it. Your opinion in that Case is desired.|
|Case 7th.||There is another Tract of Land, Seperate from the Other Three Adjoining Tracts, is the widow to have her Thirds Laid off in Quantity And Quality of Each Tract Seperately, or her thirds Taken off the Mannor plantation and Tracts Binding thereon and Adjoining it in One Tract, [is?] the Case required.|
Monticello Aug. 16. 1782.1
I am of opinion that the widow is not entitled to any thing under this will.2 That therefore she is put to claim her legal rights which are one third of the lands and slaves for life as of her dower, and a child’s part, that is, one ninth of the personal estate in absolute property, the testator’s debts being first paid. In allotting dower, all lands adjacent to each other are to be considered as one tract and the dower to be laid off in one parcel: but separate tracts must be separately divided.
I think that the two children born after making the will are entitled to share equally with those born before. The cases of Garbland v. Mayot 2. Ver. 105. Cook v. Cook ib. 545. and Bateman v. Roach 9. Mod. 104.3 have so decided; and the late case4 of Coleman v. Seymour 1. Vez. 209. admits it.5 The particular circumstance of this case, which is of a father making provision for his children, all of whom are equally near to him, can leave no doubt but that had he been asked at his death whether he intended that his two children born after making the will should take? he would have answered affirmatively. 2 Vez. 84. and if his intention be admitted, it will be carried into execution.
Though there be no words of limitation annexed to this devise to the children they will take a fee simple, a devise of a man’s ‘estate’ having been often determined to pass all his interest in the subject.
The tract of land which the heir at law claims under a marriage settlement must be submitted6 to division among the children, unless the settlement be proved by witnesses or writing to have been stipulated, and the marriage take effect in consequence:7 and even if so proved, will yet be subject to the widow’s dower. The Slave in his possession and claimed as a gift,8 will9 be subject to dower and division; that gift not having been made by deed and of record as required by law.
The wheat which the widow sowed and reaped on the manor plantation is hers undoubtedly:10 as the law allows her to retain possession of11 the mansion house and plantation, without rent, till her dower shall be assigned. While she retains possession, I think her liable for the taxes leviable on it.
RC (ViU); in a clerical hand, undated, unsigned, and unaddressed; with TJ’s dated opinion subjoined in his own hand; on detached sheet in an unidentified hand: “Legal Opinions of Thomas Jefferson & John Taylor. 1782.” Dft (DLC: TJ Papers, 233: 41736); consists of TJ’s opinion only; entirely in his hand, unsigned and undated; the most significant revisions are recorded below; endorsed:
“Mrs Wayland’s case.
divests ‘children’ if those born
after shall take.
devise of ‘estate’ passes fee
gift of slave under act of 1758.
Widow’s Quarentine.” Tr (Office of the Clerk of the Circuit Court, Madison County Court House, Madison, Virginia); copy of TJ’s opinion in the hand of Richard Vawter; at foot of text: “Copy Test Richd. Vawter”; filed with the case of John Wayland et al. v. Daniel Utz and Wife, “the Opinions of Col John Taylor & Mr Jefferson” being referred to several times therein.
Taylor, the Virginia lawyer and future agrarian political economist, was at this time devoting himself to his legal practice (Robert E. Shalhope, John Taylor of Caroline: Pastoral Republican [Columbia, S.C., 1980], 32). TJ’s legal opinion in this case is one of six he is known to have prepared during the brief time in 1782 when he resumed his law practice, three others having been previously published in this series (Vol. 6: 145–6, 151–4, 180–2). TJ was paid 21s. 3d. the day after he wrote it (MB description begins James A. Bear, Jr., and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal Records and Miscellany, 1767–1826, Princeton, forthcoming in The Papers of Thomas Jefferson, Second Series description ends , 17 Aug. 1782). The opinion was closely followed six years later in the final disposition of the case of Mary Wayland, the second wife and widow of Adam Wayland of Culpeper County, Virginia, whose 16 May 1775 will was made out while he was still married to his first wife, Elizabeth (John C. Wyllie, ed., “The Second Mrs. Wayland, An Unpublished Jefferson Opinion on a Case in Equity,” American Journal of Legal History, ix , 64–8).
1. In Dft TJ prefaced his opinion with this paragraph: “Adam Wayland of Culpeper having three separate tracts of land, slaves and personal estate and a wife Elizabeth and 6 children and his wife enseint with another made his will bearing date May. 16. 1775. in which he bequeathed ‘unto his beloved wife Elizabeth the third part of his estate and the rest of his estate to be equally divided among his children.’ The wife dies during her pregnancy. The testator marries again, has two other children and dies in 1781. The eldest son holds one of the testator’s tracts of land pretending a marriage contract, whereas he <never> can produce no proof of such contract nor did he ever marry the woman with whom his marriage was in contemplation. He has also a slave of the testator’s which he sais was given but without proof. The widow was appointed guardian to her own two children. Persons were appointed by the court to divide the estate, who allotted the widow her thirds and delivered her the share of her two children. She sowed and reaped the manor plantation and has paid the taxes of it.”
2. In Dft TJ wrote in the margin next to this sentence “Swinb. 7. 11. 6. bequest to the parish in which he lived and removes after to another parish. Legacy goes to the first.”
3. In Dft TJ here canceled “are pretty clear.”
4. In Dft TJ first wrote “have decided in their favour and that” and then altered it to read as above, inadvertently canceling the last two syllables of “decided.”
5. In Dft TJ here inserted an asterisk to reference a note he wrote in the margin: “The doctrine seems to be that there are in these cases 3. times worthy of notice. 1. the time of making the will. 2. that of the death of the testator. 3. when the legacies become payable. The Chancellors have declared that these cases cannot be subjected to any general rule, but that every one must be decided on it’s particular circumstances. 1. that primâ facie the time of making the will, not of the death of the testator is to be regarded. Swinb. 7.11.6. 1. P.W. 342. Northey v. Strange. S.C. Pr. Ch. 489. 1. Vezey. 295. 2. that words de futuro or circumstances may extend it to the death of the testator. <Weld v. Bradbury 2 Ver. 705.> Coleman v. Seymour 1. Vez. 209. 3. that the words of futurity must indeed be very express which shall carry it beyond the testator’s death when the will becomes complete, to the day of paiment Musgrave v. Parry 2. Ver. 710 and 4. that express words shall be overruled which would carry it beyond that period, because it would suspend the right to property too long, or leave the divisions to be perpetually unravelled and resettled. Ellison v. Airey 1. Vez. 111. Lomax v. Holmden. ib. 295. Horsley v. Chaloner. 2 Vez. 83. econtre Weld v. Bradbury. 2. Ver. 705.
6. In Dft TJ here canceled “to the widow’s dower at any rate, and also.”
7. Remainder of sentence interlined in Dft.
8. In Dft TJ here canceled “unless that gift can be proved by writing or by witnesses.”
9. In Dft TJ here canceled “in like manner.”
10. Remainder of text interlined in place of “but unless that plantation has been allotted to her in dower, I think she is liable to pay rent for it, in which she must be allowed for the taxes she has paid, and also for her right to a third of the land from the time of her making a legal demand of dower.” TJ canceled the same passage in Dft.
11. In Dft TJ first wrote “remain in” and then altered it to read as above.