Alabama Supreme Court Case: Heiers of Capel vs McMillan, Wilcox, Alabama http://files.usgwarchives.net/al/montgomery/court/capel-vs-mcmillan.txt =============================================================================== USGENWEB NOTICE: All documents placed in the USGenWeb Archives remain the property of the contributors, who retain publication rights in accordance with US Copyright Laws and Regulations. In keeping with our policy of providing free information on the Internet, these documents may be used by anyone for their personal research. They may be used by non-commercial entities so long as all notices and submitter information is included. These electronic pages may NOT be reproduced in any format for profit. Any other use, including copying files to other sites, requires permission from the contributors PRIOR to uploading to the other sites. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. This file was contributed and copyrighted by: Larry E. Caver, Jr. ================================================================================ January 2005 Alabama Supreme Court Case Heirs of CAPEL vs. McMILLAN, Adm'r, 1839 Error to the Circuit Court of Wilcox County, exercising chancery jurisdiction. The bill in this case stated that the father of complainants, before his death, which took place in 1830, made his will, which contained the following clauses: I will and bequeath unto my son, William, and my son-in-law, Young W. GRAYSON, the following slaves, to-wit: a man named Allen, and his wife Aggey, And their three children, Caesar, Altamore and Amey, with their future increase… I will and bequeath unto my son-in-law, Young W. GRAYSON, one yellow horse Named Dungannon, and a good bed and furniture, as his full part and portion of my estate… I will and bequeath until my son, William M. CAPEL, a certain slave Named Albert, to be considered as payment of what I am, or would be due to him, for property of his that came into my hands. I also will and bequeath unto my son, William CAPEL, one grey colt, a good bed and furniture, and my silver watch; the watch to be given him when he arrives at twenty-one years of age, as his full part and portion of my estate… I will and bequeath unto my beloved wife, Sally CAPEL, one slave named Nelson, and his wife Esther, and child Amelia, for and during her natural life, and at her death, the slaves so bequeathed, with their future increase, to be equally divided amongst my heirs, not already provided for… I also will and bequeath unto my beloved wife, one bay mare, and one grey mare, and one Indian horse, during her widowhood, and at her marriage, to be divided amongst the rest of my heirs not provided for… It is my will and desire that my slaves, not bequeathed, be hired out yearly, and my plantation rented by my executrix and executor, hereinafter appointed; and that my wife, Sally, should be entitled to receive out of the proceeds thereof the sum of two hundred dollars, in each and every year, for the support and education of the children, during her widowhood, or until my son, Alexander, shall arrive at the age of twenty-one years… It is my will, that all my slave property, land, stock of every description, and all my estate, both real and personal, except that specially bequeathed to my son-in-law, Young W. GRAYSON, and my son, William M. CAPEL, shall be divided amongst my younger children (the complainants) equally, and that they shall be entitled to receive the same, when they arrive at the age of twenty-one years, or marry, except the property already bequeathed to my wife… I appoint my wife, Sally, executrix, and Irwin R. CAPEL, executor, of this my last will and testament. Shortly after the death of the testator, the executor, Irwin R. CAPEL, also departed this life; and that Sally CAPEL, took upon herself the execution of the will, and in November 1831, intermarried with John NUGENT, the present guardian of complainants; that said Sally was thereupon displaced from the office of executrix, by the Orphans' Court of Wilcox, and Alexander GORDON, appointed administrator, who settled the estate, and resigned the administration. David McMILLAN, the defendant, by virtue of his office of coroner of the county, was then appointed administrator de bonis non, with the will annexed, who possessed himself of the estate; that complainants were the younger children, and that William M. CAPEL, Young W. GRAYSON, and Sally, have received their bequests as mentioned in the will, and that the residue of the estate is in the hands of defendant, who had annually hired out the same, and that it had considerably increased. Complainants, in 1834, removed to Mobile where their father-in-law, John NUGENT (step-father), was appointed their guardian; that the slaves could be Hired out in Mobile to better advantage than in Wilcox, and that it would be greatly to the injury of complainants to permit defendant to manage the property, until the arrived at mature years, and that some competent person in Mobile ought to be appointed to manage the property. Complainants, from their youth, were unable to do anything for their own support, and were maintained by their father-in-law (step-father), the amount allowed them by defendant being inadequate for their maintenance; and that their guardian had applied to the defendant for the property, and for a settlement, which had been refused. Complainants prayed for an account, and that the property might be transferred to their guardian. The answer admitted in the statement contained in the bill, and furnished an account and schedule of the estate in the hands of the defendant; had no objection to surrendering the estate, which consisted of twenty slaves, sundry notes, lands, if the court should so order; thought the slaves would be exposed to injury in health and morals by removing them to Mobile, and doubted the competency of the guardian to manage the estate. The chancellor was of opinion that the will required that the estate should remain in the hands of the executors until the children arrive at the age of twenty-one years, or married, and that the court had no right to remove an executor without cause; that a guardian is not entitled to the possession of the ward's property, unless the right of possession vests in the ward… Assignment- that the chancellor erred in decreeing that the property of the wards should be retained and held by the administrator, and in not decreeing the same, to be, by the said administrator, the defendant in error, surrendered to the plaintiffs. [Decision]… That the intent of the testator may be effectuated, the decree of the Circuit Court is reversed, and the cause remanded. And it is further adjudged and decreed, that such proceedings be taken in the Circuit Court, as may lead to a settlement of the administration accounts of the defendant, upon such principles as may be just and proper. It is further ordered and adjudged, that upon the execution of a bond or bonds by John NUGENT, as guardian, in a sufficient penalty, and with adequate security, before the judge of the County Court of Mobile or Wilcox County… that then the defendant be directed to pay over to the guardian all monies, and deliver to him all bonds, notes and slaves, and relinquish to him the possession of the lands belonging to the infant complainants, and the costs of this cause are to be paid by the defendant, out of the estate of the testator in his hands unadministered. Source: Reports Of Cases At Law And In Equity Argued And Adjudged In The Supreme Court Of Alabama, Vol. VIII (1839), pg. 197-210.