22 August 1780
The Answer of George Washington, Esquire, Surviving Executor of the last will and Testament of Thomas Colvill, Gentn, deceased, to the Bill of Complaint exhibited against him by Benjamin Moody, Complainant.
The Defendant saving and reserving to himself all manner & benefit of exception to the said Bill of Complaint, and to the several matters therein contained, for Answer thereto or to such parts thereof as he is advised are material, he answers & saith.
That the said Thomas Colvill did make such a will & Testament as the Complainant has set forth, and among Others, such devises: That the said Francinia alias Frances, John West Junior & the Defendant who is the only surviving one, were appointed Executors of the same and took upon them the burthen and execution of it: That the Land mentioned by the Complainant was advertised by them to be sold on credit, and the Complainant became the purchaser of it, at the rate he suggests. But whether the Complainant frequently applied or not to the said John West "to have the whole Land surveyed to fix the figure and location of that devised to the Executrix Francis, and that devised to himself—to ascertain the bounds & quantity of the Residue, & to make him a Title, the Complainant promising that the money should be paid at any time, and that the said West promised to do it," are matters, which the Defendant can neither admit or deny—nor does he know that the locations of the different parcels devised were ever made or that the quantity of the whole tract was ever ascertained, except in the manner with respect to the Latter, mentioned by the Complainant.
But granting that the particular [parcels] devised were never located by an actual survey and partition; yet the Defendant most humbly conceives that the omission was not attended with any inconvenience or injury to the Complainant, as he admits, "that he proceeded to occupy and improve the Land," (the Defendant presumes the Residue of the Tract which he had purchased, as well as the 200 acres devised to him) and does not pretend that he ever met with the least interruption in the full & free enjoyment of it, or was ever under any apprehension about his obtaining a title, to prevent him making every profit from it. Nor does the Defendant conceive, that the want of a survey of the whole tract was ever attended with any damage or loss to the Complainant, or, considering the relation in which he stood with respect to the Land, as Devisee & purchaser of by far the greater part of the Tract; that the survey was very essential with respect to him, as the only part, Viz. 450 Acres, except what he possessed himself in those capacities, had been devised to the Executrix Francinia alias Frances, and was so described by the will of the Devisor, under the appellation of "the plantation called & known by the name of Tom’s Quarter," and by the restriction which placed the 450 Acres "near the plantation on which the Divisor had lived" that the whole was nearly well ascertained, or at least the part willed to Frances the Executrix was so designated, that the Complainant interested and possessed as he was of the whole Residue, might have easily made a reasonable location of the 450 Acres devised to her, which would of course, have fixed the remainder of the Tract, supposing the boundaries to have been known, which seems to be confessed, by the Complainants proceeding to occupy & improve the Lands and would have enabled him to pursue the prudent part at least, of making an actual tender of the money for the remainder he had purchased, according to the patent & Proprietors Rentall, in order to have prevented an accumulation of interest, and to shew that he was willing and in a condition to do all that was necessary on his part. And supposing that this mode of fixing the remainder of the Land, according to the amount of the Patent & Rentall, had not occurred to the Complainant, by which to regulate an actual tender—of the purchase money, this Defendant most clearly conceives, that he ought to have made a tender of the whole sum, or of the balance he acknowledged to be due, after the Survey made by George West and his Report of the Contents. For the Sale operating only as to the quantity—and not as to the quality of the Land—being of the remainder of the Tract at a certain sum for every hundred Acres—and the Complainant knowing the Contents of the whole and the deductions to be made on amount of the Devisee to himself and the Executrix Francinia, he had it in his power after the Survey was made, to know what money he was to pay and ought to have tendered the whole, or at any rate the ballance he acknowledged himself, the Complainant, so far from making a tender—either of the whole sum or of any part; now that the difficulty, was removed, if it ever existed, confesses, that "he could not avoid suspecting the Survey made by George West was erroneous as the quantity mentioned in the title paper & for which the Testator paid Quit rents was only 1300 Acres." By one of those principles—either the quantity contained in the Patent & Rentall—or that found by the Survey made by Mr West, the Defendant humbly apprehends the Complainant might & ought to have governed himself and made an actual tender of the purchase money, to prevent future interest and any other subsequent inconveniences to himself, which would have manifested a readiness and a capacity on his part, to do all that could be required, and would have made any ill consequences more justly imputable to the neglect and omission of the Executors. But the Defendant, besides this reasoning which he humbly apprehends might be good and conclusive of itself, begs leave to observe, that the matter does not rest entirely upon it. He positively avers, that after the sale of the Land and before he left Virginia, which was in May, 1775, Mr John West often told the Defendant, it was not in his power to bring the Complainant to a settlement for the Land which he had purchased—and if his memory does not greatly fail him, the Defendant himself called upon the Complainant for payment more than once, and in very pointed terms & under threat of a Lawsuit; but to no effect.
As to the payments & changes contained in the Complainant’s account—the Defendant will not undertake to deny the justice of them, so far as to say that they may not be perfectly right under certain limitations; but admitting this, yet he cannot but think that the charges, from the manner in which the Account stands, and from there being no Other Parties as Defendants to the Bill, than Himself, are at any rate generally inadmissible. The first change is stated as the ballance of an Account, without any exhibit of the Articles to shew how it arose, and implies a Private Debt subsisting between the Complainant & Mr John West, of which this Defendant can have no knowledge: The second is also in terms of generality, which it is conceived is not sufficient, tho the Account on which it is said to have arisen, is mentioned to have been delivered to Mr West, one of the Executors: the propriety of the Third charge is humbly submitted on such Documents as may be produced in it’s support; And as to the fourth and last, it appears to the Defendant, with all submission, that it is a matter that can only be settled and adjusted between the Complainant as Executor & Residuary Legatee of the said Frances Colvill and the Executors of the said John West, as it naturally involves a consideration of the Accounts and Agreements which may have subsisted between them, & to which this Defendant is an entire Stranger. For those reasons the Defendant humbly apprehends the charges in the Account exceptionable—first for want of particular exhibits of the Articles constituting them, & secondly for want of Other parties, the propriety of admitting which and the blending of so many interests apparently different, is humbly submitted to the Worshipful Court.
This Defendant admits that the Complainant applied to him to execute a Deed for the said Land "suggesting that he had contracted for the sale of it & had bound himself in a heavy penalty to make a title, and that the Defendant refused to execute a Deed" for the Reasons set forth by the Complainant. The correspondence between the Complainant and the Defendant on the subject was by Letters of the following tenor, which this Defendant prays may be considered and received as part of his Answer.
The Defendant humbly conceives he was justifiable, in refusing to execute a Deed, for the reasons assigned above in his Letter to the Complainant of the 18th of September 1779, which then appeared to him as they do now, to be founded in the clearest equity; and that the footing, on which he declared himself ready to conduct the business, was such, in his opinion, as the Complainant should not have rejected. And the Defendant cannot but observe, that the Complainants application to him, would have appeared infinitely less exceptionable, if he had made it soon after Mr West died, which he confesses was "early in the Year 1777," when Paper money & Loan Office Certificates were not much depreciated—and not postponed it till so late a period as the 1st of Septr 1779, when they had become of very little value; and when he could not but conclude from the tenor of the Complainant’s Letter of that date, that he wanted to pay what he supposed to be due for the Land, either in the one or the Other, without making any allowance for their great depreciation and which the Complainant more explicitly avows in his Bill where he charges that the Defendant had "refused to execute any Deed to him—was about to avail himself of the depreciation of our currency and insisted on his making good the deficiency &c." & [ ] more by [ ] the terms offered by the Defendants Letter of the 18th of Septr, and bringing his suit.
The Defendant admits, that the Money due for the sale of the Land, supposing the Debts of the Deviser, all paid, will belong when collected, according to the terms of the will, either to British subjects or to the Children of the said John West, but to which this Defendant will not undertake to decide, as it was devised under certain restrictions and limitations, the validity of the performance of which has not been yet determined. In the first Instance, after the Testators debts are paid, it is willed to British Subjects, Relations of his Mother Catharine Colvil—and Many persons under this description have entered claims for it, and within the time prescribed by the Testator, but the validity of the proofs adduced in support of their relationship, remain to be examined and properly decided. If the proofs of this fact are adjudged insufficient, the Defendant apprehends the Money will belong to the Children of Mr West, to whom in such case, or in case these claims were not preferred within Five years after the Testators death, it was given. But whether it shall belong to the One or the Other; the Defendant does not conceive that it can alter the matter. In either case the principles of justice are the same—and Equity requires that the payment for the Land should be made in something of solid & substantial value—which will amount to an adequate compensation for the sum originally intended & contracted to be given for it, or the ballance that may be really and bona fide due, with Interest. This the Defendant conceives to be indispensibly necessary to satisfy the demands of justice & the contrary would entirely, or at least almost wholly defeat the upright intentions of the Devisor, in appropriating the Money arising from the sale of the Land, as a fund for the payment of his Debts, is far as it might be requisite—and his benevolent purposes towards the Legatees, and make the Complainant the proprietor of the Land without giving scarcely any consideration for it.
The Defendant does not know whether Mr West has devised the Money to his family either conditionally or in any other manner.
With respect to what the Complainant has stated of his incapacity to prepare a Deed and his Interrogatory on that head—The Defendant humbly apprehends, that tho he might not have had it in his power to prepare a Deed, with the greatest possible formality, for want of an exact survey and partition of the whole Tract of the different parts devised; yet, that without those he might have easily prepared one, by which the whole Remainder of the Accotinck Tract might have been effectually and substantially conveyed to him—and that the more material use of the survey, would have been to ascertain with precision the exact amount of the money to be tendered or paid, than to transfer the property of the Land contained in the Remainder; and that the tender to satisfy every thing on the part of the Complainant, if the Executors declined making an accurate survey and partition, might have been made on one of the Two principles already mention[ed] A grant of lands lying between certain boundaries, without ascertaining the number of Acres—or by any description that will manifest the Land intended to be transferred, the Defendant apprehends, will vest the ownership in the Grantee or purchasor; so in the present instance, a Deed for all the Land contained in the Devisor’s Accotinck Tract; with proper & familiar recitals & excepting the 450 Acres devised by him to the Executrix Frances & the 200 Acres devised to the Complainant, would have conveyed the absolute title in the Remainder of the Patent to him. And the Defendant begs leave further to observe, that he cannot easily perceive, if the Complainant was always in a condition to pay the Money, why greater difficulties would have attended the Complainant’s preparing a Deed, immediately or soon after the purchase, or at any rate after the survey made by George West, than were found when he prepared the One transmitted with his Letter of the 1st of September 1779, since he confesses by his Bill, tho that Deed was antecedent to the bringing of it, that at the time of filing it, with respect to the quantity of Land, he "remained unsatisified, as no plot had ever been shewn or delivered him, and that in that situation he had remained, not knowing what to prepare a deed for."
In fine the Defendant begs leave to add, that he has not a wish nor never had, but to do the most impartial and complete justice to All the Parties concerned as well to the Complainant as to the Creditors and Legatees of the said Thomas Colvil; but he cannot conceive that this can [be] possibly done, unless the Complainant is decreed to pay, either before or at the time of the Defendant’s executing a Deed for the Land, the Whole of the purchase money or such balance as may be found to be properly due for the same and interest, in Gold or Silver, according to their established rates, or in such other Money as is made tenderable in payments by Law; allowing in the last case a sum equal to the difference of exchange & value, between this & Gold & Silver. And in case the Worshipfull Court should decree that a payment may be made otherwise than in Gold or Silver, the Defendant most humbly prays that they will direct, for his security and justification, in what manner he shall dispose of the Money for the use of the Devisor’s Creditors or Legatees, as they may be respectively interested in it. The Defendant &c.
I hereby certify that on the 22 day of August 1780, the above named George Washington, Esq., General & Commander in Chief of the forces of the United States of American, Defendant in the foregoing Answer in Chancery, included between page One & page seventeen, appeared before me the Subscriber, One of the Justices of peace, duly authorized and appointed for the said County, and made Oath on the Holy Evangelists of Almighty God, that the several Facts state & possibility in the said Answer, false of his own knowledge, [ ] as they are respectively started; [ ] stated as matters of hearsay or belief or false respectively, as stated, according of his knowledge & belief; and that those [ ] are so as [ ] forth. Even under my hand & Seal this 22 day August Anno Domini 1780