Spotsylvania Co., VA; Estes vs Golding ~ Amended bill [of complaint] 1823
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September 24, 1823

Fredericksburg Circuit Court
File 95

To the Honourable Wm. Brown Judge of the Superior Court of Chancery for
the Fredericksburg District.

Humbly complaining shew to your Honour your Complainants William
Estes and Frances his wife, William Estes Jnr. Littleton Estes, Sarah
Harvey, and William Golding that the said Complainants William Estes,
William Estes Jnr, Littleton Estes Sarah Harvey and William Golding
heretofore filed a bill of complaint in the said Superior Court of
Chancery against Reuben Golding Richard Golding John Golding Elizabeth
Estes, Polly Pugh John Stone and Sally Stone, and now by way of amendment
to the said Bill with leave of the Court for that purpose first had and
obtained your Complainants respectfully shew to your Honour that William
Golding formerly of Orange County made his last will and testament
bearing date on the 13th day of March 1809 and died on the 26th day of
August 1811 without altering or changing said will which has been duly
presnd. & recorded in the County Court of Orange and a copy thereof is
exhibited with the bill heretofore filed in this Cause as is prayed to be
considered also as a part of this amendment. After the death of said
testator the said Reuben and Richard Golding the Executors who proved and
undertook the execution of said will delivered to Thomas Foster the
specific devisee & Legatee named in said will the land & negro therein
devised and bequethed to him which he sold & then removed to the Western
Country where he died during the late war with G.B. intestate, insolvent,
unmarried & without issue & no person has taken administration upon his
estate in the state of Virginia. That the said Executors sold a portion
of the testators estate immediately after his death and as your
Complainants imagine has recd the whole or a considerable part of the
proceeds thereof, but has not as yet fully accounted with the respective
legatees many of whom purchased at the said sale for their respective
shares thereof. Your Complainants further shew that Sarah Golding the
widow of the testator and the tenant for life under the will departed
this life in October 1818 intestate & not having intermarried with any
person after the death of the said William Golding, possed of the real
and personal estate devised and bequeathed to her by sd Wm Golding, and
also possessed of & entitled to sundry Goods Chattels rights & credits
which she had acquired in her life time after the death of said testator.
That upon her death the said Reuben and Richard Golding as the testators
Executors resumed possession of the personal estate which the said Sarah
had held under the will & recd. the rents issues & profits of the lands. 
They also as Executors de son tort took possession of the proper Goods
and Chattels of the said Sarah & Collected the debts due to her
particularly sundry debts due to her for the hire of her negros. All of
which they have converted to their own use & refuse to account with the
distributees of the said Sarah for any part thereof. Your Complainants
further shew that after the death of the said Tenant for life the said
Executors in order to effect a division sold the Real & personal estate
held by her under the will which said sale was made by the said Executors
without the knowledge or consent of several of the Legatees particularly
Sarah Harvey, William Golding John Golding & Polly Pugh & probably
others, under a belief that the said will empowered them to sell the same
& indeed such were the impressions of your Complainant William Estes who
became the purchaser of a part of the land as heretofore stated. But
your Complainant the said William Estes has been since advised that the
said Executor was not authorized by the will to sell either the said land
or negros. That the authority to sell was confined exclusively to the
negros which the testator directed to be divided immediately after his
death and did not extend to the land & negros left to his widow. At any
rate the authority to sell (if any) was conditional depending on the
disagreement of the parties to a division in kind, which condition could
not be ascertained to exist until the persons interested had in due form
signified their election to have the property sold which was not done. 
Your Complainant the said William is therefore advised that in this view
of the Case he has not a good title to the land so purchased by him
having a deed from the said executors alone and that it would be
competent for any of the devisees who may not have formerly assented to
or subsequently ratified said sale to assert their rights to their shares
of said land hereafter, although your said Complainant should have paid
every cent of the purchase money, which your said Complainant apprehends
would be done in the event of said Executors failing to pay over to them
their share of the purchase money and this your said Complainant believes
the said Executors will fail to do from their past conduct, & being
imprudent & improvident and declining rapidly in their pecuniary concerns
your said Complainant seriously apprehends the insolvency of said
executors one of whom does not reside in this state & as it may be well
questioned whether their securities would be bound for the acts of said
Executors in relation to the funds arising from the sale of this land,
the only recourse which would avail the said devisees would be to come
against your Complainant for their shares respectively of the land. In
this view of the case your said Complainant & the said William Estes Jnr
& Littleton Estes his securities frankly ask whether it would be right
under existing circumstances to compel them to pay the purchase money for
said land? They respectfully suggest that it would not. Your
Complainants Sarah Harvey says that it is pretended by the said Richard
Golding that he purchased out her interest in said land during the life
term of the tenant for life & your Complainant William says it is
pretended by said Richard that he purchased of him his share in said
land. But your Complainants decry the fact they say that the said land
was real estate until the sale was made by the said executors, and as
such no contract for the sale thereof can be charged upon them or carried
into execution unless a memorandum of the agreement were made in writing
and signed by the parties agreeably to the act of assembly in that case
made & provided which in this case has not been done. Your Complainants
Sarah Harvey & William Golding say that even if they had made a parol
agreement with said Richard it ought not to be binding upon them because
of the gross inadequacy of consideration the price being very low &
extremely unreasonable price which is alledged to be agreed to be given
1. Maddox. 336 & because such contracts by Executors are against public
policy and more especially as even this sum has not been paid to them. 
Your Complainant Sarah Harvey denies that she has ever [?] recd a cent of
said Richard Golding for her share of said land. The credit on her bond
for $120 to the Contrary notwithstanding, which your Complainant believes
was indorsed [?] since the institution of this suit as the character &
condition of the ink indicates. Indeed the bond being given to both of
the Exexutors, the credit necessarily suffers from its phraseology that
the sale was made to both the executors (which is not pretended) and in
any view of the case it appears from the defendants own shewing that the
whole trade was carried on & effected (if at all) upon the funds of the
estate of the testator at which time the said Executors were largely
indebted to several of the legatees & still remain indebted to them. 
Your Complainant William Golding says that John Golding was not his agent
to receive of said Executors particularly money for the sale of his land
more especially to make a contract for him the said John being about to
remove with his family from Orange County to the state of North Carolina
where the said William resided [2 or 3 words illegible] Executors being
largely in his debt for his interest in the personal estate sold by them
immediately after the testators death the said William authorised said
Executors to lend this money out to them by said John Golding but which
bye the bye they did not do. The said Executors choosing rather to hold
on to the funds no doubt with a view to further fraud & speculation.
Your Complainants further shew that the Children of said Wm. Golding
& Sarah Golding who are entitled under the will to the testators estate &
who are also distributees of said Sarah Golding are as folllows. William
Estes & Frances his wife, Sarah Harvey William Golding, Reuben Golding,
Richard Golding John Golding, now decd, Elizabeth Estes, widow of Elisha
Estes decd, Polly Pugh & John & Sally Stone Children of Nancy Stone decd,
making on the whole nine shares. That the said John Golding died in
North Carolina in 1814, intestate, leaving a widow who died in a day or
two afterwards, and 7 children, towit Milly wife of Joel Hill Betsy wife
of James Hollingsworth, William, Robert & John Golding (adults) & two
infant sons whose names are unknown to your Complainants. That there has
been no administration in Virginia in said John Goldings estate. That
Sally Stone who was a grand-daughter of the testator intermarried with
Warner Cox of Orange & she died in the year 1822 and was survived by said
Cox 4 infant Children whose names are not known to your Complainant. 
That there has been no administration on the estate of said Sally. That
the said John Stone for valuable consideration and in due form sold his
interest in said land to your Complainant William Estes & now resides in
Alabama. That the said Elizabeth Estes also sold her interest in said
land to said William Estes for valuable consideration. The said Polly
Pugh resides in Caroline County & has 9 children whose names are as
follows, Richard Pugh, Nancy Pugh, Betsy Pugh, John Pugh, Wm Pugh,
Golding Pugh, Fernille [?] Pugh [name of Fernille Pugh has been crossed
out], & Thomas Pugh, & James Pugh infants.
That the said Executors have not account for said testators Estate
and your Complainants further shew that there are no debts due from the
estate of said Sarah Golding as far as they know or believe nor has there
been any administration on the same.
In Consideration of the premises and for as much as your
Complainants are without adequate relief at law but are peculiarly
relievable in this Court to the End therefore that the said Reuben
Golding and Richard Golding in their own rights and as Executors of
William Golding decd. Joel Hill & Milly his wife, James Hollingsworth and
Betsy his wife, William Golding & John Golding (& the other two Children
of said John Golding decd whose names are unknown at present to your
Complainants (by a Guardian to be appointed for them by the Court) when
their names are discovered) Elizabeth Estis, Polly Pugh and her Children
named above mentioned [7/8 inch of vertical space is inserted in the
document at this point] John Stone, Warner Cox and the infant Children of
said Sally Cox formerly Sally Stone, (by a Guardian to be appointed for
that purpose by the Court) may be made defendants to this bill and answer
the premises. That the said Executors may now come to settlement of
their accounts of administration on the said estates, that is to say the
estate of said William & the proper estate of said Sarah Golding the last
of which they have recd as executors de son tort. That said defendants
may answer and say whether they confirm the sale of said Land, if not
that such relief as is proper in that case made be extended to your
Complainant William Estes. That the said Executors may be compelled to
make distribution of said estates according to the said will the act of
distribution of intestates estates & the several rights of the parties. 
That the said pretended purchases by the Executors or either of them of
the share of Sarah Harvey & Wm Golding may be declared null & void & the
said Executors made to account with them for the value of the same
according to the sale made to Wm. Estes, the said Sarah Harvey & William
Golding being willing that the same shall be paid by Wm Estes over to
their attornees [?] in fact in the first bill mentioned. That such other
& further relief as in the premises is proper may be extended to the
plaintiffs [3 or 4 words illegible] & your Complainants will ever pray
&c.
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File contributed for use of the USGenWeb by Scott Simpson
scott.simpson@juno.com

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