1. Difficulties had arisen in executing the 1787 will of James Madison, Sr., whose last testament, as JM had noted, did “not cover all the property” he had owned and was, moreover, “ambiguous in some important points.” Property not covered included a merchant mill in Madison County, Virginia, which James Madison, Sr., had built in partnership with three of his sons in 1795–96; some land in Orange County, Virginia, amounting to about 560 acres; and also claims to land in Kentucky. The disposal of these assets was complicated by the facts that not all of the property James Madison, Sr., had bestowed on his sons before his death had been legally conveyed by deed; that two of his sons—Ambrose and Francis—had predeceased him; that both these sons had died intestate; and that Francis had left six young children in the care of his widow, Susana Bell Madison. Furthermore, JM’s youngest sister, Frances Taylor Madison Rose, had not yet received an equivalent share of the slaves and personal property that had been advanced to her sisters, Nelly Madison Hite and Sarah Madison Macon, during their father’s lifetime.

As the surviving sons of James Madison, Sr., JM and William Madison were the executors of their father’s estate, but after July 1801 JM withdrew from the task and left it to his brother. In dealing with the problems arising from the will of James Madison, Sr., it seems that the family members tried to agree among themselves whenever possible and to have recourse to legal procedures only when it was necessary to do so. In the case of the Madison County mill, the issue was to find ways of conveying to the three daughters of James Madison, Sr., the value of one-half of their father’s one-quarter share in the property while also protecting the claims of the children of Francis Madison. Here the only practical solution, the family agreed, was to sell the property and divide the proceeds amongst all the heirs. With respect to other undevised personal property and real estate, the daughters also had to claim their respective shares, and they requested that William Madison execute the will accordingly. He refused to do so on the grounds that he could not fairly divide this property and protect the interests of his deceased brother’s children without the assistance of legal proceedings to ensure that the will was executed according to law.

The family therefore decided to initiate a friendly suit in chancery to obtain a division of the undevised personal property and real estate and also to petition the Virginia General Assembly for permission to sell the Madison County mill. This last course was probably dictated by a variety of considerations. The agreement made by James Madison, Sr., and his three sons restrained them from alienating their shares outside the partnership, and the family evidently received legal advice that in cases where the value of each claimant’s share might exceed one hundred dollars, the courts could not authorize a sale under the existing laws. The General Assembly, however, rejected the family petition in December 1801. Its reasons for doing so are unclear, but the family was later informed that the sale they had requested would not be binding on the children involved without the sanction of a court of chancery. Consequently, the mill was later subjected to equity proceedings in chancery in order to ascertain its value prior to its sale in 1808. The friendly suit to divide the slaves and other personal property that had belonged to James Madison, Sr., was settled in Richmond in March 1803 when the court, after deciding that the bequests to his predeceased sons had lapsed, ruled that the property be divided among Nelly Conway Madison and her five surviving children (JM to Jefferson, 7 Mar. 1801, PJM-SS description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (2 vols. to date; Charlottesville, Va., 1986—). description ends , 1:6; “To the honorable George Wythe Judge of the Richmond District Chancery court,” n.d. [InHi: English Collection, Hite-Bowman Papers]; Petition to the General Assembly of Virginia, ca. 3 Oct. 1801; bills of complaint and answers, 1805–12, in Hite v. Madison Papers [Madison County, Virginia, Circuit Court Records]; decree in the High Court of Chancery for the Richmond District in Madison v. Madison, 3 Mar. 1803 [DLC]).