Lauderdale County, Alabama

Page 269

This defendant states expressly that the complainant well knew, in the lifetime of her said husband that the suit of Samuel Taylor and others against the said George M Savage, executor of the will of Samuel Savage decd had been instituted in the said District Court at Huntsville, and that the amount claimed by the Complainant in that suit was very large, greatly exceeding the value of the said Samuel Savages Estate, and this defendant believes that the complainant knows well that said suit is still pending, and undetermined in the Supreme Court of the United States.

This defendant denies that there is to her knowledge or belief any combination between her husband, the said Hervey Dillahunty and Vincent M Benham to cheat and defraud the Complainant or that her husband is the real manager in the administration of her said father’s estate. And from information which she believes to be true, this defendant denies that there was, or is any combination, or confederation between her said husband and the said George M Savage to cheat and defraud the said complainant and the other legatees of the said Samuel Savage or any of them, out of their residuary interest in said estate, or that it was with any such view that the said George did not carry into effect the 5th item of the will of his testator, on the contrary thereof no division of the proceeds of the crops raised on said plantation were ever made by the said George (as this defendant verily believes) because said estate was involved in heavy and doubtful litigation as herein before stated.

And this defendant further says that said Complainant has told her (this defendant) since the death of her intestate and since the removal of the said George M Savage from his office of executor of the will of Samuel Savage that she had always understood and believes from her own observation while residing with her husband (the said Samuel G Savage) on the plantation of the said Samuel Savage and from information derived from her said husband, and the said George, that he the said George had not and would not divide the net proceeds arising from the crops raised 
on said plantation until the said suit of Samuel Taylor and others against him as the Executor of his father’s will was finally determined.

All of which matters this defendant doth aver and plead in bar of the Complainant’s Bill, and of the Complainants demands, without this, that any other matter or thing in the said Complainant’s said Bill of Complaint contained material, or necessary for this defendant to make answer unto, and not herein or hereby sufficiently answered unto, 
confessed and avoided, traversed or denied is true. And this Defendant having fully answered said bill, humbly prays to be hence dismissed with her reasonable costs and charges in this behalf most wrongfully sustained. Hervey Dillahunty, solicitor for defendant

15 April 1846 Behethaland M Dillahunty

Page 270
Exhibits A and B

“That whereas a matter of controversy has arisen between the parties of the first part and second part hereto in reference to the interest which the said party of the first part (Ann R Savage), as the widow of the late Samuel Savage claims in the Estate of said Samuel Savage deceased, and the parties of the first and second part being desirous to settle and adjust the matter of difference between them in an amicable and friendly manner do mutually agree to submit the matters in dispute between them to the arbitrament and decree of disinterested and discreet 
persons - Benjamin Reynolds, John Lorance, James W Stewart and John Key.

Page 271
Property given to Ann R Savage.

Page 271
Answer of Samuel J Rucker

... This Respondent knows nothing of the proceeds of said estate or the management thereof, except that he Benham has been involved (and still is so involved) in much litigation with complainant and others about the business of said Estate. Respondent further says in answering that he believes it to be true that the family of the said Hervey Dillahunty have resided upon the plantation of the said Samuel Savage since the latter part of August 1842, but Respondent does not believe that complainant or the distributees of said estate have any just cause of complaint therefor, inasmuch as much of the time and attention of the wife of the said Hervey since he resided there has been bestowed in and about the business and care of said estate and this respondent having read the answer of the said Behethaland to this charge of complainant, believes that her said answer to said charge is true, and that neither 
complainant nor himself have been injured by the residence of the said family as aforesaid.

And in addition to the above, respondent says that he is informed and believes that the said Hervey by his unremitting personal attention to the litigation in which said estate has been involved has rendered very essential and important aid in the management of its affairs.

Respondent admits that William F T Savage was dead when the said Will was made, but he does not admit that the bequest therein to the said Samuel G was a vested legacy at the time he died. Respondent admits that 
the said Ann R Savage is dead but does not know when she died. Respondent insists that the estate of the said Samuel Savage has not been in a condition since the institution of the suit of the said Taylor and others to be distributed. - That it would be iniquitous to make a partial division of said estate before the said litigation shall have 
been closed, of the pendency of which respondent says complainant has long known.

Respondent believes that the said Benham has done and is doing all he can to bring said suit to a close, and that it is not the fault of said Benham or any agent of his that said suit is undetermined.

This Respondent is at the time of filing this answer of full age (ie of the age of twenty one years, and assents to the condition expressed in the Will of the said Samuel Savage upon which Respondent and his said Sisters are to take the bequest and devises in said Will made to them. And this Respondent having fully answered prays that he be hence dismissed with his reasonable costs. S C Posey, Solicitor

Samuel J Rucker, 1 May 1846

Page 274
Answer of Samuel T Johnson

... He admits it to be true that Samuel Savage the elder died several years ago, that he left a last will and testament devising and bequeathing his property as therein set forth, a copy of which last will and testament he believes is truly set forth in the answer of his mother Behethaland Dillahunty. Respondent being till November 1844 a minor took but little interest in ascertaining the facts in regard to the management of said Estate either by said George M Savage or by said Benham and has no knowledge thererof which is in its nature certain and can neither admit nor deny them and requires proof so far as he may be affected by the statement and charges in said bill.

He did see George M give Samuel G about $700 out of the proceeds of the crop of 1838 in order to pay his debts - Samuel G gave him a small sum out of it which he owed him. ... knowing the litigation therein mentioned exists, a considerable portion of which litigation is owing to the complainant herself and her father her agent or assuming to be so.

“If complainant is considered entitled the other legatees will be equally so, and no funds or property will be left to pay any demand against the Estate whether debts or expences, and the admr being personally responsible for fees to lawyers and on other contracts made by him for the benefit of the estate will be placed in a bad position if
distribution generally be ordered.” ...

James Irvine, Solicitor for Samuel T Johnson
4 May 1846

Page 275
Answer of Frances Matilda Rucker
20 September 1848

... “This defendant states that before her removal to the State of Tennessee, a suit had been instituted against George M Savage as executor of the will of Samuel Savage, in a court at Huntsville by the legatees of William T Taylor, which suit she was then informed and believes involved a very large amount, and she this defendant has read the answer of Vincent M Benham and the other defendants in this cause all of which she believes give a true statement of the facts in relation to the condition and management of said estate at the time said answers were filed.

Since that time the suit brought by the legatees of William F Taylor has been finally decided and the decree in their favor has been paid by Vincent M Benham as this defendant has been informed and believes, so that there is nothing now to prevent a division of the estate of the said Samuel Savage but the litigation brought on by the complainant and her father and brother. Further answering this defendant says that she is now of the age of twenty one years, and that she assents to the condition stated in the will of her grandfather, the said Samuel Savage upon which herself, her brother, and sister are to take the legacies given them. Frances M Rucker

Hervey Dillahunty, Solicitor for Defendant

Page 278
Answer of Ann Eliza Rucker, an infant over the age of fourteen years and a legatee under the Will of Samuel Savage deceased by her guardian ad litem William B Wood to a bill of complaint exhibited against Vincent M Benham ... No personal knowledge Ann Eliza Rucker

Hervey Dillahunty, her Solicitor

Page 279
Answer of Charles S Dillahunty, Samuel Savage Dillahunty, Hervey Dillahunty Junior and Milly S Dillahunty filed by their guardian ad litem Hervey Dillahunty Sr.. Charles and Samuel were infants over the age of 14 years, and Hervey Junior and Milly were infants under the age of 14. ... No personal knowledge
22 September 1848

Page 279

The answer of Gideon J Johnson (who is called in complainant’s bill by the name of John A Johnson) to a bill of complaint exhibited against Vincent M Benham administrator de bonis non, ...

He is the son of Behethaland M Dillahunty. ... at the time of filing said bill, he was as is alledged, an infant under the age of twenty one years, but has since that time attained said age, and prays leave of the court to answer and defend for himself. ... believes his mother’s statements. Suit with Taylor has been settled.

Page 281
Questions for James W Stewart

... Declare if you know about what time George M Savage left this county and where he resided at the time he left and how long he had resided at that place before his departure, and whether his family resided with him the whole of the time, and whether he and family derived their living from the estate of Samuel Savage, and whether they resided in the mansion formerly occupied by the said Samuel Savage in his lifetime, and declare if you know whether the said George had any visible means of his own from which he could have supported himself and family, and declare what his living and the rent of the houses he occupied was reasonably worth pr annum from the time he moved on said plantation untill he left it. Interrogatories prepared for Martha E Savage by her Solicitors Cooper, Walker and Baker

Cross interrogatories prepared by James Irvine, S C Posey and Hervey Dillahunty

Page 285
Jas Irvine, S C Posey, H Dillahunty, Solicitors for Defendants

Sterling A M Wood Esqr commissioned to call and cause to come before you .. James W Stewart, William R Garner, and Daniel Thompson, witnesses in behalf of the complainant in the suit pending in our said Chancery Court wherein Martha E Savage administratrix of Samuel G Savage is complainant and Vincent M Benham and others are defendants.

Page 286
April 22, 1846

William R Garner deposition

“I went to the plantation in the latter part of 1842 and resided there during the years 1843 and 1844 in the capacity of overseer, was employed by Mr. Benham and left there in the latter part of December 1844.

I had about twenty nine heads when I first went on the plantation, that worked on the plantation making about twenty hands. About the first of March, 18 or 20 of the negroes were taken away by the Marshall, and kept about one month; they were the choice negroes except the Blacksmith and one or two others. They returned about the 1st of April 1843, and remained all the time I was on the plantation. Nine more hands came on the plantation some time in December 1843, and remained on the plantation untill I left in 1844. I cultivated corn, cotton, wheat and oats. I raised in 1843 eighty odd bales of cotton, and in 1844 I raised about 135 bales - witness says he cannot state precisely. There was sufficiency of every thing except meat, raised on the plantation for its support. Meat was bought the last year, but the plantation supplied about three fourths of the meat the second year viz 1844.

Mr. Benham sold Mr. Saub sheep and beef cattle to about the amount of seventy or seventy five dollars in 1843. Witness knows of nothing else that he sold.

Mr. Dillahunty and his family were living on the plantation when I went there, and resided there untill I left, in the mansion house formerly occupied by Mr. Samuel Savage decd. They lived so far as I know off of the means of Savage’s estate, Mrs. Dillahunty cultivated about one acre of corn and four or five acres of cotton the last year and her garden which was cultivated by her both years. I think Mr. Dillahunty purchased somewhere about five hundred weight of bacon the second year, but am not positive to either the amount or the year in which it was bought.

Mr. Dillahunty had no servants of his own the first year, but had a small boy the second year in the latter part of the year that did not belong to Savage’s estate. Flour of the servants belonging to the estate of Samuel Savage stays about the house each year waiting on Mrs. Dillahunty’s family, cultivating the garden etc, viz one old negro man 
the cook (Morris) (Called Moses by Mrs. Dillahunty), one old woman very old unable to do much about the plantation named Aggy - One negro woman named Clarissa afflicted with the scrofula, able to work unless that disease injured her, but I am unable to say whether it would or not. One girl ten or twelve years old, who waited in the house named Diana never had worked out, but was larger than some I had out. Morris would have been worth $25.00 or $30.00 a year, Aggy would have (been) worth about $20.00 a year, Clarissa would have been worth from $40 to $50 (if not 
injured by the scrofulous disease) a year. Diana would have been worth from $20 to $25 a year. None of these Negroes were at all under my control. I gave out meat to them the two negro women were employed in spinning whether for Mrs. Dillahunty (who had control of the spinning) or for the plantation I do not know. The house was worth something, I do (not) know how much, but probably $25. or $30. a year. There were seven in Mrs. Dillahunty’s family. Mrs. Dillahunty had a horse the last year time enough to use him in cultivating a crop. Samuel Johnson (one of the family) usually kept a riding horse. The family including the four negroes annually consumed food and provender to the amount of about $70. or $80.

Mr. Benham was on the plantation a few times not often, he knew that Mr. Dillahunty and family lived there, he knew the manner in which they lived in part. I told Mr. Benham that there was four negroes about the house, and that they were old and not able to do much. Mr. Benham said if they were not able to do much good to allow them to remain. I was not directed in any respect by Mr. Dillahunty, we advised together he appearing to take a good deal of interest about the plantation.

Cross Interrogatories
William R Garner

I know nothing of the amount of means he carried or whether he carried any.. He had corn, plenty of wheat, a very fine crop, one hundred and fifty or two hundred bushels, and had some bacon together with a fine stock of hogs, about the time he moved to the plantation of Samuel Savage decd. I know that some hogs were killed at Savage’s plantation but do not know to whom they belonged.

Mrs. Dillahunty did send the old man Morris out in the field but I do not recollect the reason he was sent back. I think that Mrs. Dillahunty proposed taking Hannah and allowing Morris to go out in the field. I do not know whether Morris cooked for all the negro children or not; it is probably he could for some, and may be all.

There were near twenty negroe children. Old Amy cooked for some three or four of the negroe children. Mrs. Dillahunty attended to the spinning and weaving for clothing the negroes. I do not think the negroes had sufficient winter clothes, but had plenty of summer clothes. She cut out the clothes herself or had it done by one of the negroes and attended to the sick and negro children. I attended to the sick and negro children as much as an overseer usually does on plantations.

William R Garner

Page 288
Interrogatory - James W Stewart (a physician)

I am acquainted with the parties and have known them a good many years. I know that Burroughs was indebted to Savage about the year 1837 the debt existed before the death of Savage. I think it was by note and $150. was collected by George M Savage in 1840 leaving a balance due.

I am well acquainted with said plantation. I have lived from one to five miles not farther than that, and in the last six or seven years about three miles. I have frequently been upon said plantation, and my opportunity of knowing the extent has been good and since 1837 there has been about 35 hands regularly on said plantation.

I am a planter, the annual expences of such a plantation as Samuel Savage would be $1500.00 a year on an average.

I do not know what was raised each year having no distinct recollection about it. I think that four bales to the hand would be a fair average, does not know what each crop was respectively worth. I have been acquainted with the cotton market but cannot state the price of each year. Cotton has sold since the year 1837, sometimes as low as four 
cents and at others as high as 10 cents. I bought part of the crop of 1842 about 23 bales of V M Benham and paid 5 cents for it. I received it as cash for a medical account.

Witness states that he has before answered as to what he bought himself and does not know of the selling of any other part of the crop by Benham although it may have been sold by him. I was told by Savage and by S K Oates that Samuel K Oates had purchased a hundred bales at 5 cents pr pound.

He (George Savage?) left about the close of the year 1842. He resided upon the plantation of Samuel Savage decd. He was there about three and a half years. His family resided with him. They lived in the house of Samuel Savage decd. I presume he lived upon the estate as G M Savage had no visible means of his own. I think that $75 a year was as much as they would consume of things belonging to the estate, as to the house I think the estate was not injured, but its interest promoted by his living there, his wife being a careful tenant.

Mr. Dillahunty removed to the plantation of Samuel Savage decd in 1842 about the 1st of September and continued to reside there. He has six in family, besides two step sons. One has been there steadily, the other more than half the time, and perhaps not so much. Mr. Dillahunty one of the six has been there but little, very seldom. They occupy the Mansion house of Samuel Savage decd. I do not know of any means he has save his time and talents, and cannot tell what he makes. I think they would consume in living not more than $150. worth of things off of the estate. I have been there frequently. I have seen no one about the house save the old man the cook, and a little girl. The old man Morris would not be worth more than $25 or $30 a year. The little girl when I saw her would not have been worth more than her victuals and clothes.

I do not recollect the names of the Negroes taken away by George M Savage, and cannot tell their seperate or collective value. I know nothing of the horses and mules.

I paid $130. of the Burroughs debt to George M Savage in the settlement of a medical and lumber account, and I think twenty dollars more in that or some other way.

There are many causes which may increase the expences and I was paid $100. in 1839 by George M Savage for the purposes connected with a suit against the estate of Samuel Savage deceased.

The said George M Savage at the time he resided on said estate was the acting executor of Samuel Savage decd and was managing said estate.

I know that Mr. Dillahunty had family supplies, and know that he moved them to the plantation of Samuel Savage. He had meat and corn and wheat that were moved from his place with him to the plantation of Samuel Savage. I know that he had a crop of corn and cotton, and a good stock of hogs, and I know that some of the hogs were killed in 1842 for the use of Mr. Dillahunty the next year, and that some live hogs were hauled there. I know that corn was hauled there, but do not know the precise amount of either. I have seen her attending to the cutting out and preparing the negro clothes. I frequently gave my directions to Mrs. Dillahunty about the sick, and she did attend to taking care of them. Her services about the estate were worth $150.00 a year, and that a low estimate.

Jas. W Stewart.

Page 289
Interrogatory - Daniel Thompson

I went to the plantation of Samuel Savage about the last of December 1844 and remained untill November 1845. I was employed by Vincent M Benham, and remained there as overseer.

I had thirty five hands under my care of an average set for that number; I cultivated corn, cotton, oats and wheat. I do not know how many bales of cotton were raised nor whether sufficient bread stuffs were raised, and I know that there was not sufficient stock raised for meat.

Mr. Benham did not sell any provisions whilst I was there.

Hervey Dillahunty’s family lived there when I was there, were there when I arrived, and when I left. Had no means that I know of, save those of the plantation, all lived alike off of the plantation, they did not purchase any provisions that I know of.

There was a boy staying in Mr. Dillahunty’s family that did not belong to Savage’s estate. There were some of the Negroes of the estate of Savage about the house, waiting upon Mr. Dillahunty family and controlled by them entirely - There was four not under my control about the house and yard, Morris an old man who was the cook for Mr. 
Dillahunty’s family - a part of the year was the girl Diana up to the first of May, at that time I made an exchange with Mrs. Dillahunty and took out Diana in the field and sent Rachel a negro woman suckling a child to the house, another woman having died leaving an infant which caused the change; she remained there all the time after. When I saw 
here which was very seldom she was engaged in waiting on the family, never saw her otherwise engaged but do not know what she did the balance of the time, when I did not see her at all. Aggy an old woman and Clarissa, Aggy was engaged in washing for Mr. Dillahunty’s family, and milking and spinning, and he does not know who she did spin for, whether for Mr. Dillahunty’s family or for the use of the plantation, she did not spin for the plantation to my knowledge. Morris would be worth from $25 to $30 a year. Diana would have been worth about $30, taking her 
value in the place of Rachel. Aggy would have been worth about $15. Does not know what Clarissa would be worth. Don’t consider the house rent worth any thing. I suppose that $100 or $200 would cover all the family supplies that he used from the plantation.

Mr. Benham was down several times during the year, knew that Mr. Dillahunty family lived there. I do not know whether he was aware that the above mentioned negroes were waiting upon his family, he never saw them under my control. I attended to some things which Mr. Dillahunty suggested.

I was employed by Mr. Benham. I did not serve my time out according to contract. I was discharged by Mr. Dillahunty. I informed Mr. Benham, who ratified the act.

Cross Interrogatory

I had attended to the spinning of the field hands, and sent their produce to Mrs. Dillahunty who attended to having the cloth wove, and clothes made, she also attended very closely to the sick and Negro children.

Benham did not inform me that Hervey Dillahunty in discharging me had acted in the matter at his (Benham’s) request. I was discharged about the first of November, the hands were then engaged in picking cotton. I attended to them, and they picked the cotton out as clean as an average lot. I do not think it was so full of trash that it injured its value.

Morris 60 years old, Aggy about 70 years old, Diana between 12 and 14 years old. Clarissa about 40 years old, worth about $25. a year. I saw Morris cooking, Aggy washing, Clarissa making up beds and Diana waiting in the house, and had seen Aggy and Clarissa spinning, for what purpose I do not know. Aggy was too old to be of service in the field, but could do some little things about a plantation. I would consider Clarissa an invalid.

Daniel Thompson
Certified by Sterling A M Wood, Commissioner, 28 April 1846

Page 293
Interrogatory - Neil Rowell

I am acquainted with Samuel K Oates the reputed father of the complainant. I know that said Oates owns some land and several negroes. I am acquainted with the quality of his lands and would estimate their value at $8,000.. I am well satisfied from my knowledge of his negroes that he has at least fifty and he may have many more. I would estimate his negro property to be worth $20,000 at least. From all I know I should say that said Oates is not in embarrassed circumstances and also his property is not within my knowledge encumbered.

I derive my knowledge of the value of Mr. Oates’ property from having been on his place. Seen the negroes he had about him and from long acquaintance with the value of his lands. I have no means of knowing that said Oates in unembarrassed except from general reputation, and from that I would say that he is not embarrassed.

I was one of the appraisers who appraised the property of the estate of Samuel Savage decd at the time the defendant Benham took charge of said estate as Admr de bonis now with the Will annexed of said Samuel Savage. 
On that day Samuel K Oates who represented as the agent of the complainant took and carried away some eight or ten of the negroes belonging to said estate, there might have been more or less. My impression is that they were chiefly men and women not very old principally young. I would say that the complainant held the negroes in 
question about one year. They were in the possession of her brother David C Oates. I understood from neighborhood reputation that the complainant was interested in the crop raised, or rather had hired them to her brother David C Oates. I have no definite knowledge of what the negroes would have hired for, and further this deponent saith not. N Rowell

Page 294
Jno Simpson

I am acquainted with Thomas J Crow and have known him for twenty odd years. I have no knowledge of the full extent of his property. I know that he owns some real estate and some negroes. I would suppose he was worth at least five thousand dollars. I do not think he is in embarrassed circumstances or that his property is encumbered. I have lived in the same town with him and done business with him for upwards of twenty years, and if he were embarrassed ti should doubtless know it. His property consists in Town Lots and houses and some valuable negroes. 
I do not know the number of slaves he owns and further this deponent saith not and hereunto subscribes his name

John Simpson

Interrogatory
Dr. James W Stewart

I am acquainted with Samuel K Oates the father of complainant Martha E Savage. I have some general knowledge of the property of said Oates and know that he owns some valuable lands and several negroes. I would say that said Oates is worth from forty to fifty thousand dollars, and my impression is that he is worth more than the last named sum; my impression is that he is not embarrassed. I judge so from the fact that he manages his affairs smoothly and without apparent difficulty.

If his property is encumbered in any way I do not know it nor have I ever heard of it. I presume that if his property was encumbered I should have heard of it. I live from two to three miles from said estate.

I know said Oates to be worth 40 to 50 thousand dollars from my general knowledge of his property as stated above consisting in land and negroes. My means of knowing are my residence within 2 or 3 miles of him for a number of years, having visited his house, farm and seen his hands at work, etc..

In the latter part of the year 1842 (as well as I now recollect) I was at the plantation of Saml Savage decd when the property was appraised to V M Benham the present Admr de bonis non etc. of said Saml Savage. On the day of that appraisement Samuel K Oates ordered some 8 of the negroes belonging to said estate to gear up a waggon and go to the place formerly owned by H Dillahunty, then occupied by his son David C Oates. There were three men, two young and likely and the other advanced say of middle age, two women, one young and the other the wife of the elder of the men, and two children. I cannot state the age of said negroes my recollection is that said negroes were held in possession of David C Oates, brother of complainant about 12 months. I do not know on what terms he held them. One of the young negro men was sold by the complainant during the time they were under her control. Said Samuel K Oates stated that the negroes aforesaid had been set apart, a few days previous to Mrs. Savage the complainant as her portion, and that he thought it proper to take them away at that time. Jas W Stewart

Page 295
Interrogatory of Mrs. Amelia Oates
Franklin County

I am related (to the complainant) and I am her Mother. She was 24 the 13th day of January last.

Interrogatories by defendants.

Declare whether or no a family record has been kept of the time your children was born, if so declare whether or no. State the exact age of complainant from the record, and please to give in your deposition an exact copy of the record of the time said Martha E Savage was born.

Answer
There is a family record kept and the following is a true copy. “Martha E Oates, daughter was born January 13th 1823.”

Page 296
Final Decree

November Term of Chancery Court in 1848

“This case is submitted upon the bill, answers, demurrers, exhibits and proof for final decree. The bill is exhibited by Martha E Savage, who claims to be administratrix of Samuel G Savage decd against the Executor of Samuel Savage decd who has been removed office - the administrator de bonis non cum testaments annexed etc. who succeeded to the administration and also against the legatees and devisees of said Samuel Savage decd. It suggests a devastavit against George M Savage the executor and seeks an account both against him and the administrator de bonis non etc as well as the recovery of a legacy against the latter. The defendants for multifariousness, and that must be disposed of, before I can advance further in the case.”

Cites cases - “that if the bill set forth several distinct matters perfectly unconnected, or the case of each defendant is entirely distinct and seperate in its subject matter from the other defendants” then the bill is multifarious.

In the present case, relief is sought against George M Savage executor for failing to maintain and educate the complainant’s intestate, as directed by the will of Samuel Savage, as well as for a failure to divide the proceeds of the crop grown after he was 21 years of age, or to advance to him, out of the estate of the testator, as the (testator) had advanced to his other children. It is also sought to charge George M Savage with large sums of money received by him from the crops grown on the testator’s plantation after his death and before the removal of the executor, which it is alledged, were wasted by him and not applied according to the provisions of the will. In all this Benham the admr etc. is in no wise implicated, nor with it, does he seem to have any connection either in law or fact, except so far 
as he is charged to have received a portion of the judgment obtained by Savage the Executor against Dillahunty.

Benham is called on to account for various sums received by him as the proceeds of the crops raised since his administration commenced, and for payment of the legacy under the will, with neither of which the removed 
executor has even the slightest connection.

The bill also seeks to review and set aside a settlement made by Benham, as administrator, with the Orphans Court of Lauderdale County with which the Executor has no possible connection.

The rights, interests and liabilities of the executor, and the administrator de bonis non etc have no necessary or actual connection with each other, and the decree to be rendered, if the complainant should be entitled to recover, could not be joint against them, as neither is in any manner liable for the maladministration of the (other?) and this is laid down in the books on equity pleading as one test of multifariousness.”

(Debated points, said that, as the case would probably be carried up for review, he would pronounce his opinion upon the remaining points.)

“The next point is order, is the objection taken in Benham’s answer to the character in which the complainant sues, and is equivalent to the plea of ne unqueo administrator. ... The proof of Mrs. Oates, the complainant’s mother, as to the time of her (complainant’s) birth when compared with the date of the letters of administration, shows that 
complainant was only seventeen years old when the letters were issued to her. An age at which, by the law governing the spiritual courts in England untill the passage of the Act 38 Geo. 3 Chap 87, 7, persons were permitted to act as executors. I am not aware however that even by the liberal rules of those courts, administration was ever committed to a minor. ... “the statute of distributions in England requires administrators to give bond, which minors are incapable of doing.” ... “In addition to all this, an infant, in ordinary cases can neither sue nor be sued alone. From all this it is evident that an infant cannot hold the office of administrator in England .... I am not aware that a 
different rule exists here, and consequently, such an appointment in this state can confer on the disabled appointee neither the rights or powers which appertain to the office which he seemingly holds. Our own statute upon the subject of granting letters of administration, requires a bond to be given before such letters can issue. .... and her pretended appointment is a nullity.

“The proper course in cases in which an infant is nominated executor, or is first entitled to administration would be, for the court, having jurisdiction of the estate, to appoint the guardian of such infant, or some other competent person, administrator durante minore aetate? As the bond required by our statute is intended to protect the distributees of the estate from any loss which may arise from the laches? neglect or wilful mismanagement of the administrator, and as an infant cannot commit a devastavit, or be made liable for neglect the bond in this case 
can afford no such protection.

“It may be said, however that as the objection is not made by plea, specially setting forth the grounds of objection to the grant of letters of administration to the Complainant the court should not consider it. ....

“On this point therefore, as on the demurrer this case is in my opinion with the defendants. After a very careful examination of all the leading authorities cited on both sides. I am of opinion that the legacy sought to be recovered by the bill never vested in Samuel G Savage decd, and consequently no decree would have been pronounced for the complainant had her case been right in all other respects. By the terms of the 11th clause of the will by which the legacy is given to Samuel G Savage decd it is is clear to my mind, that the giving and possession of the legacy 
were intended by the testator to take place at one and the same time, viz upon the death of his wife. ... The complainant was of full age when this bill was filed as appears by a comparison of the date of her birth as proven by her mother with the time of filing it, she must therefore pay costs.

Let the decree be enrolled

It is ordered, adjudged, and decreed, that the defendants’ demurrer to the Complainant’s bill be sustained, that her bill be dismissed and that she pay all costs to be taxed by the Register.

D G Ligon, Chancellor

“And the said cause having been taken to the supreme court on Writ of Error, the foregoing decree of the Chancellor was reversed and said cause remanded. And afterwards to wit at the May term 1850, of said Chancery Court, the following decretal? orders were made by the chancellor to wit. The supreme court having settled the equities between the parties and directed the manner in which the account is to be taken in this case nothing remains for me to do except to carry out the directions of that court as far as I am capable of understanding them promising that in 
directing this account to be taken under the rules herein after laid down, I am by no means influenced by my own judgment but submitting mainly to the decision of the supreme court in the case.

Let the following orders be entered

It is ordered that the master take, state and report an account between the parties on the following principles and under the following directions.

First, He will ascertain the amount, kind and value of the estate of Samuel Savage decd both real and personal which came to the hands of George M Savage as executor, with the annual profits of said estate while under his management, computing interest on any money used by him for his own purposes, or which remain unappropriated in his hands from the time such money was used or received.

2nd He will give him credit for all sums he may have paid out to the debts of the estate, in the management and to the use of the estate and to the purposes required by the will in supporting, educating and clothing the younger children therein named and all other expences necessarily incident to the execution of the will of the testator. He 
will allow no commission to the executor.

3 He will also state an account with the defendant Benham as administrator de bonis non with the will annexed upon the same principles as a(re) laid down for his government in the case of George M Savage except that he will allow Benham commissions at the rate of five per cent for all monies received and two and a half per cent for all money paid out by him in the course of his administration.

4. Having ascertained the amount and value of the estate in the hands of George M Savage when his executorship terminated according to the rules herein before laid down he will deduct from it that portion which afterwards came to the hands of Benham as administrator de bonis non and which had been in the hands of George M Savage. If after this deduction there appears a balance against said Savage, he will proceed to apportion it between the several legatees under the will in such portions, and by the clear rules laid down in the Will itself.

5. He will also apportion and divide the estate in the hands of Benham according to the requirements of the will, ascertaining the value of each share. To ascertain the value of the slaves he may call before him such witnesses as he may think proper and in assigning to each legatee his or her portion of said slaves, he will be careful, as far as 
practicable, and consistent with a fair and equal distribution of them, to allot them by families, not seperating husbands and wives, parents and children when it can be avoided.

6. If any part of the expences of the support and tuition of Samuel G Savage incurred before he was 21 years old has been paid by the Complainant or by her intestate out funds other than those which came from the estate of the testator, or yet remain unpaid for which the complainant is liable in her representative capacity such sum or sums 
must be allowed her out the general fund before any distribution is made.

7. The portion which on this accounting may be found to be the distributive share of Wm T T Savage, he will distribute among the remaining legatees as the will directs.

D G Ligon, Chancellor

And afterwards, on the 19th day of May 1850, the Master made the following report ..

Page 302

Accounts:

Value of estate when Savage died.

Amount of appraisement of personal property, including 74 slaves on the 11th day February 1838: $36,413.00
Total value: $89,630.61

Net value of the estate at the termination of George M Savage Executorship: $77,430.61

Amount due from George M Savage to the other distributees: $17,906.67

On the 28th day of November 1842 Vincent M Benham was appointed administrator de bonis non of the Estate and immediately thereafter took possession of the plantation and all the personal property left by George M Savage administrator.

Total amount with which Benham is chargeable: $62,407.53

Cost of this suit was deducted ($340.65)
Funds in the hands of Benham subject to distribution: $11.496.57

It appears that John B Dillahunty died in 1841 leaving one son, Samuel Savage Dillahunty who is entitled to his mother’s interest in the estate, and to make his father equal to the older children as provided by the will, he is entitled by way of advancement to the sum of $1740. with interest thereon from the 25th day of November 1838.

All the distributees were opposed to selling the “negro property,” prefering its division in the manner directed in the decree of the chancellor.

Page 305

There are ___ slaves belonging to the estate which I have divided into five lots (keeping the families together as far as practicable) with their value fixed upon them, and allotted them to the distributees as follows

Lot number one drawn by Martha E Savage admx of Samuel G Savage

Frank $400.
His wife Hannah 200.
Child Ann Eliza 600.
Child George 800.
Child Dinah 600
Child Kerbo 600.
Martha 450.
Bolivar 800.
Carey 800
Lube 800
Patrick 300.
Lawney 100.
Laura 300.
Total: $7050.00

Lot No. 2 drawn by Samuel Savage Dillahunty

Rachel 400.
Child Abe 650.
Child Isaac 600.
Child Sammey 500
Child Bella 450
Child Joe 250
Child Morris 800.
Randal 800
Carter 800
Mariah 450
Minerva 600
Little Jack 800.
Total: $7100.

Lot No 3 drawn by Samuel I, Ann E and Matilda Rucker

Clarissa 450.
Child David 800
Child Moses 800
Child Celia 550
Child Forbes 650
Child Robin 450
Child Clara 250
Levi 300
Ann 200
Washington 800
Peter 500
Andrew 450
Friday 800
Total: $7000.00

Lot No. 4 drawn by Admr of John T Savage

Old Jack 150
Wife Charlotte 300
Jim Duckett 800
Sam - child 600
Adaline 500
Dick (Blacksmith) 900
Billy 800
Betsy - Billy’s wife 700
Infant 100
Charles 800
Simon 700
Ellick 700
Total: $7050.00

Lot No. 5 drawn by Mrs. Behethaland Dillahunty

Henry 800
Eveline 700
Solomon 500
Little Henry 350
Fanny 200
George 200
Phill 700
Shepherd 800
Caroline 650
Eleanor 600
Yancy 600
Edward 300
Jerry 700
Total: $7100.00

The slaves were allotted to the respective distributees as above set forth, and the account is now respectfully submitted to the Chancellor. May 19th 1850 S T Thustin, Master in Chancery

Page 307

Long lists of accounts for 1845, 1846 and 1847 for amounts paid to? various people including:

James Viser, B M Grady, Wm B Wood, W R Garner, E D Townes, Jesse Melton, R L Bliss, William Thornton, Kirkman and Andrews (for Moses Wood), Littleberry Underwood, Dr. James W Stewart (J G Johnson) ($100.00), Hugh Thompson, John Seveir, G Campbell, Old Jack (No voucher), Savages Boys for fodder (No voucher), Jno Simpson & Co., Thos Dewberry, Peter F Patrick, John Peters, A Askew, H Dillahunty, Charles McLuskey, Marshall Clark, Horse sold? Estate, Kirkman and Andrews, for Pork, Thustin and Kennedy, Jessee Denson, Murphy and Lackey, James Irvine ($500.00), 
Kirkman and Andrews, James P Oakley, Edward A O’Neal, D M Thompson, Bennet Pope, W P Pettus, Simpson McAlester & Co, Peter F Patrick, Benjamin Paterson, M C Gallaway ($10.00 - Gallaway was editor of a Florence newspaper), Dr. James W Stewart (G L Johnson) ($400.00), Benjamin Patterson ($6300.00), Peter F Patrick, Dr James W Stewart, 
James Young, Henry Darby, Richard B Baugh, J C Calhoun, G Dunn, Jack Johnson, D M Thompson, D Littleton, Wm Quillan, Samuel Martin, H Simpson, W T Hawkins, A H Wood, Benjamin F Karsner, Hugh Thomson, George W Sneed, W P Pettus, Ira Arnold ($300.00, 9.00, 2.25, 186.00), Benjamin Patterson (1291.90), Robt Kernachan, Elisha Rhodes, Charles Gookin, Wm B Wood, Dr. James Stewart, Mrs. B Dillahunty (for Jack Johnson ($50.00, $100.00), M & J Harkins, Bennet Pope, Joseph Bigger, Thos Darby, John M Harris, Jack Johnson (200.00), H I Posey, Martin and Cassity, H I Hoge, 
Saml T Johnson (570.23), Samuel Bromley, Richard M Beckwith (70.06), Margaret Brown, Wm Thornton (Duncan Corn Note), John Austin (Austin corn note - 214.00), Wm Lesle, Thos K Young, Benjamin F Rhodes, Bennett Pope, V M Benham (61.85), Hansboro, H D Smith (50.00), M Munn, George G Armistead, S C Posey, Pugh Houston, Saml T Johnson, Charles Gookin, D M Thompson, Wm Cooper (75.00), Jno Simpson & Co, Wm M McLuskey, Daniel M Thompson, W P Pettus, Levi Todd, Robert Kernachan, Daniel M Thompson (119.45, 50.00, 74.96), S C Posey (150.00), S T Thustin, David G Ligon (50.00), Shadrick Brown, B B Barker, Expenses to Huntsville (Primrose Case to pay bal. 10.50), H Willett, Aaron Askey, Robt Warren (Jack Johnsons order), Samuel T Johnson, L T Thustin (65,27), Simpson McAlester & Co, Jack Johnson, L P Walker, Wm R Garner (20.25), Saml T Johnson, A Wright (500.00), Jack Johnson, John Wilkinson for corn, M C Gallaway (21.00), William S Todd, J D Johnson, Wm B Barton, D Gresham, Rachel Gresham, E Lovelace, S A M Wood, Jack Johnson (Sloss? order - 23.75), Jack Johnson (for Thustin (15.00), Finch Scruggs, Jacob Fifer, David Gresham, Samuel T Johnson (1118.02), David Gresham, E W Beck, Jack Johnson (pr S McA & Co - 554.41), James Bromley, Bennett Pope, E D Townes (150.00), Jack Johnson pr Thustin (for Wightman - 1085.48), Jas Irvine, bal account - 1/1/1850 - 483.39), D Gresham for corn, E D Townes (50.00), H J Posey, Moses Wood, J B Lorance, Jack Johnson (for J A Baker 
- 192.45), Jack Johnson a/c to Hannay, H J Posey, Jack Johnson (order Billy Rodgers), Jack Johnson (Hays), Aaron Askew, Jas Irvine (200.00), A Musselman, John Bedford (G Campbell), John J Ormond (300.00), Finch P Scruggs (100.00), E A O’Neal order to Patrick (on Austin corn note - 16.00), Jack Johnson (a/c to Faulk - 132.38), Thos Shepherd, Jas S Clark 
(10.00), Aaron Askew, John Wightman

August 25, 1847

Commissions for discounting acceptance and interest on a bill of exchange drawn for the benefit of the estate and to pay the judgment in the U. S. District Court at Huntsville in favor of Taylor’s Heirs vs the estate of Savage (524.99 - 1849)

Simpson McAlester & Co, Martin Harkins (Bal on Duncan Corn Note, S C Posey, Jack Johnson, R Kernachan, W T Hawkins, Jack Johnson note to D Koger (200.00), Wm McCluskey, Wm B Woods fees for Jack Johnson, Mr. Brown (difference in horse trade - 10.00), C Gookin, D Gresham, E A O’Neal, J T and W P Horne? Advertising (8.00), H Dillahunty to pay expences to Montgomery, Supreme Court 50.25, 12/30/1848), expences in sending messenger to collect M Oates note (.50), H Dillahunty expenses to Tuscumbia to take deposition of Townes and others (1.00), Expenses to get commissioner to take Moses Wood deposition (1.00),

June 30, 1849
H. Dillahunty expenses to Montgomery to attend Supreme Court $40.00 plus 2.94 interest.

April 9, 1850
Paid for corn, etc. provisions for helpless negroes $20.00 plus .17 interest Paid boy for cutting and setting pork (.75), Simpson McAlester & Co. acct, F P Scruggs, Dean & Craig, J B Leftwich, Wm B Barton, Patton & Barker, Bal to credit of this administrator on his annual settlement in the Orphans Court as per decree of that court (872.69), William B Wood, Atty, auditing papers and stating Acct (May 20, 1850), Administrators commissions 5 per cent on $46,008.00 receipts (2304.44), Administrators commission 2 1/2 per cent on $33,509.94 disbursements (838.99)

Total: $5274.92

Page 312
Credits Include:

Amts received in 1846 and 1847 from cotton crops in 1845 and 1846 Amts received from Florence Bridge Company
Amts received from George W Foster on his note for land (2935, 500, 250, 550, 50, 37, 100, 50, 50, 50.) January to April, 1848

1848 - Net proceeds of sales of 160 bales cotton sold by King, Hunt & Walker: $4175.54

Amt. recd of William Koger advanced by him to meet Bill of Exchange $2119.15

Note - On the 25th day of August 1847 I drew a Bill of Exchange which was discounted in Nashville for $6611.45. for the purpose of paying the Judgt in favor Taylors heirs vs the estate. Said bill was endorsed by William Koger and Robert Kernachan to meet said Bill the above 192 bales of cotton were sold and applied, but being insufficient, William Koger advanced the above sum of $2119.15 to the estate. For the purpose of reimbursing said Koger I paid him on 5th April 1848 cash recd of John Simpson & Co. for and on account of G W Foster $1476.57 - 14 Bales of cotton which were sold and realized $251.22. ...

Jan 1, 1849 For amt of hiring of negroes of sd estate after applying $100. the hire of Carter to Wm Koger’s cash account from 15 February 1848 to January 1st 1849: $3049.50

January 1, 1850 For amt of hiring negroes of sd estate from 1 January 1849 to January 1, 1850 $2932.50

1849 For amt of hiring negroes of sd estate from 1 January 1850 to 1 Jan 1851: $3442.50

Jan 1, 1849 For this amt recd for 4 mules, 3 horses, 1 mare, 14 Carey ploughs, 5 sweeps, 6 shovels, 14 clevisy?, 14 single trees, 12 pr trace chains and hames and a set of blacksmiths tools etc (sold to S P Walker for) $589.00

R B Baugh for iron lot 73.80
B F Rhodes for 4 mules sold him 215.00
David Gresham for: 1 old wagon and 1 yoke of oxen, 35.00, 1 yoke of oxen, 17.50, 2 beaves, 9.72, 2 cos, 18.00, 2 heifers, 10.00, 2 cows, 11.00, 1 cow and calf, 12.00, 3 head cattle, 10.00

March 1848 Received of George Washington Foster for 1 wagon, 1 cutting knife, 1 large kettle, 1 lot old tools and irons, entire lot of hogs, fodder and oats and 335 bushels of corn ($335.) - Total received of GWF: $492.00, less work done ginning and hauling cotton, 14.42 - $447.60)

Jas P Oakley, 1 yoke oxen, 25.00, 54 sheep, 32.50.

Received of George W Foster, amt of second instalment on land, $4489.35 third installment $4489.35

Jas Letsinger for old saw mill irons 35.00
R Warren for a horse 35.00
H Mussulman for hire of negro girl Eveline 52.50
N Rowell for sale of a mare 65.00

Dec. 20, 1849 Samuel K Oates on settlement of suit in Circuit Court Franklin County S Savage Estate vs Oates: $2081.17 received

Total receipts: $46,222.18

Page 314

There is a bill of costs due the administrator Benham in case of himself vs Saml K Oates in Franklin County which is not included in this account or settlement because he has not yet received it. There is also a suit pending in Chancery Court in Fayette County in this State for the hire of Negroes against Martha E Savage. When these two sums shall have been collected, after paying all expences they are to be divided equally among all of the present legatees of Saml Savage (George M Excepted).

There is also a suit pending in Lauderdale Chancery Court favor of Kirkman Abernathy and Hanna vs said Benham as admr of Saml Savage. If a recovery should be had in this case it is also to be paid out of the two funds above named if sufficient. If not sufficient, then the same shall be paid by each one of the present legatees in equal parts to Benham.

Page 315

The Master’s report in this case having been made and now submitted without exceptions from either party, under these circumstances the report of the Master must be in all things confirmed. Nothing now remains but to decree a distribution according to the report, but the parties in interest will not be allowed to enforce the decree against 
George M Savage who is a non resident and has never submitted to the jurisdiction of this court untill the statutory bond for his indemnity is executed.

Final Decree

let the following order be entered and decree enrolled.

It is ordered that the Master’s report made in pursuance of the order of the present term be in all things confirmed.
It is further ordered, adjudged and decreed, that the legatees of Samuel Savage decd recover of George M Savage late executor of his estate, the amount following to wit

Hervey Dillahunty and Behethaland his wife, for the use of the said Behethaland, the sum of three thousand, five hundred and eighty one dollars and thirty three cents.

Hervey Dillahunty, guardian of Samuel Savage Dillahunty the sum of three thousand, five hundred and eighty one dollars and thirty three cents.

Samuel J, Ann E and Matilda Rucker, jointly, the sum of $3581.33.

Martha E Savage administratrix of Samuel G Savage deceased the sum od $3581.33

Hervey Dillahunty administrator of John T savage the like sum of $3581.33.

Before the parties take any benefit under this portion of this decree, they will severally enter into bond with good security, to be approved by the Register, and payable to the defendant George M Savage in the sum of $3600. conditioned as such bonds are required by law to be in cases of non resident defendants who have not submitted to the jurisdiction of this Court. It is further ordered, adjudged and decreed, that the said legatees recover of Vincent M Benham, the sums following to wit

Hervey Dillahunty admr of John T Savage decd the sum of Four thousand and forty nine dollars and sixty one cents

Martha E Savage administratrix of Samuel G Savage decd the sum of $4266.21.

Hervey Dillahunty guardian of Samuel Savage Dillahunty the sum of $3180.69, for which said several sums if not paid, with legal interest from the date of this decree within sixty days, the said parties may severally have execution.

It is further ordered adjudged and decreed that on the 25th day of December next, the said Vincent M Benham shall have in the Town of Florence the following Negroe slaves belonging to the estate of Samuel Savage decd, or such part of them as shall then be alive and the increase untill that time of the females thereof, and distribute them to 
the legatees as follows, to wit, to Martha E Savage admx of Saml G Savage decd he will deliver if living, Frank, Hannah his wife, Ann Eliza, George Dinah, Kerbo, John, Martha, Bolivar, Harry, Lube, Patrick, Lawney and Laura, with the increase of the females at that time.

To Hervey Dillahunty as guardian for Samuel Savage Dillahunty, Rachel, Abe, Isaac, Sawney, Bella, Joe, Morris, Randal, Carter, Mariah, Minerow and Little Jack.

To Samuel J, Ann E and Matilda Rucker, Clarissa, David, Moses, Celia, Forbes, Robin, Clara, Lewis, Ann, Washington, Peter, Andrew and Friday

To Hervey Dillahunty admr of John T Savage decd Jack, Charlotte, Jim Duckett, Sam a child, Adaline, Dick a blacksmith, Billy, Betsy, wife of Billy and her infant child Charles, Simon and Ellick

To Hervey Dillahunty and Behethaland his wife for the only proper use of the said Behethaland, Henry, Eveline, Solomon, Little Henry, Fanny, George, Phill, Shepherd, Caroline, Eleanor, Yancey, Edmund and Jerry.

It is further ordered, adjudged and decreed that Vincent M Benham pay all costs, out (of) funds of the estate in his hands not otherwise appropriated by this decree

D G Ligon, Chancellor
Recorded June 17, 1850