William S. Vanpelt/Gasner H. Messick Chancery Cause 1872 - Rockingham Co. VA ************************************************************************ USGENWEB ARCHIVES NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. Persons or organizations desiring to use this material, must obtain the written consent of the contributor, or the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. ************************************************************************ File contributed by Harriet Welch hwelch@rica.net ******************************************************** To the Hon Judge of the Circuit Court of Rockingham County, Virginia, Humbly complaining showeth unto your Honor your Orator & Oratrix William S. Vanpelt and Eliza J. Vanpelt his wife late Eliza J. Messick, that in the year 1863 your Oratrix Father George Messick of said County departed this life leaving three sons, Gasner H., Jewett (?) & Asher & two daughters, your Oratrix & her sister Mrs ___ Linaweaver (the wife of David Linaweaver) surviving him, that before his death he divided his farm in said County between his said three sons, giving to each one of them about 100 acres of superior land worth not less than five to six thousand Dollars, but required each of said sons to pay to your Oratrix five hundred dollars, and provided that it should be expended for or invested in lands for her and her heirs & that if not so invested during the life time of her said Father it should be paid to your Oratrix in money. They farther show that the said sum of $1500 was not invested in land as aforesaid during the life time of your Oratrix Father, but before his death he made & published his last Will and testament in which he devised the said $1500 to your Oratrix, and required his said son Gasner, either as Executor, or as agent or trustee to collect & pay over to your Oratrix the money ($1500) aforesaid immediately after his death, and he also gave to your Oratrix in said will a quantity of bedsteads, beds & bedding, Tables, Bureaus & other household & kitchen furniture (worth from $300 to $500 as they are advised) which he then had & which at the time of his death he left with his said son Gasner H. for your Oratrix, which said will was subsequently to his death admitted to probate in the County Court of said County and the said Gasner H. (your Orator & Oratrix are advised) qualified as the Executor, or as the Administrator with the will annexed of his said Father George Messick. They farther show that the said will was afterwards destroyed with the other records of said Court by fire & no copy thereof now remains so far as they are advised unless there is one in the hands of said Gasner. They farther show that said Gasner H. Messick in whatever capacity he may have been acting has never paid to your Oratrix and Orator or either of them one cent or dollar of the said fifteen hundred dollars, nor any interest thereon, neither has he delivered to them, or either of them any part or parcel of the personal property given to your Oratrix by said will as aforesaid, although both the money & property aforesaid have been in his hands and possession ever since the death of his said Father & now are in his possession or under his control. They farther show that he now denies that there were more than $1000 left to your Oratrix by said sales or divisions & the subsequent will aforesaid & that he had expended much of that in the support of his father after the division of the farm aforesaid amongst his fathers said sons, and under that & various other pretexts he avoids the payment of any thing to your Orator & Oratrix. They farther show that your Oratrix said Sister received from her Father 98 acres of land worth at least $1500 and several horses, cows, household & kitchen furniture & other personal property amounting together to $500, exclusive of said land, and therefore it is obvious that he intended that your Oratrix should have $1500 in land or money & the personal property aforesaid, all of which her said Brother Gasner H. Messick refuses to pay or deliver to her, although she is justly intitled (sic) thereto, But your Orator and Oratrix are remediless in the premises at Common law & are only properly relievable in a Court of Equity to which end they pray that the said Gasner H. Messick be made a defendant to this bill and be required to answer the same under oath, and when the premises shall have been heard & considered your Orator & Oratrix pray your Honor for a decree against said Gasner Messick compelling him to pay said money and deliver said personal property over to your Orator & Oratrix, and that they have such other farther & general relief in the premises as may be necessary just & legal and as in duty bound they will ever pray &c William S. Vanpelt Eliza J. Vanpelt by their attorney Berlin & Harnsberger -------------------------------------------------- The Commonwealth of Virginia, To the Sheriff of Rockingham County, Greeting You are hereby commanded to summon Wm R.H. Messick Administrator of Gasner H. Messick Deceased, J.A. Harrisman (?) Administrator of George Messick Deceased, Wm.A. Vanpelt Sarah E. Vanpelt Preston T. Vanpelt Alice C Vanpelt George A. Vanpelt and Mittie J Vanpelt to appear at the Clerk’s Office of our Circuit Court, holden for Rockingham County, on the First Monday in May next, to answer an Original & Amended Bill in Chancery, exhibited against them by William S. Vanpelt & Eliza J Vanpelt and you are hereby required to notify the said Defendants that unless they shall answer the said Original & Amended Bill within one month thereafter, the Court will take the same for confessed and decree accordingly; and this they shall in no wise omit under the penalty of $100 each And have then there this writ. Witness Littleton W Gambill, Clerk of our said Court, at the Court house, the 28th day of March 1872 and in the 96th year of the Commonwealth L.W. Gambill -------------------------------------------------- The Commonwealth of Virginia, To the Sheriff of Rockingham County, Greeting You are hereby commanded to summon Wm H R Messick Administrator Debonis Non of Gesner Messick, James P Rolston Administrator of George Messick, Asher Messick, William A. Vanpelt, Sarah E. Vanpelt, Preston T Vanpelt, Alice C Vanpelt, George A Vanpelt & Mittie J Vanpelt to appear at the Clerk’s Office of our Circuit Court, holden for Rockingham county, on the First Monday in December next, to answer a Bill & amended Bill in Chancery, exhibited against them by William H. Vanpelt & wife and you are hereby required to notify the said Defendants that unless they shall answer the said Bill within one month thereafter the Court will take the same for confessed and decree accordingly; and this they all in no wise omit under the penalty of $100 each And have then and there this writ. Witness Littleton W. Gambill, Clerk of our said Court, at the Court-House, the 24th day of October 1872, and in the 97 year of the Commonwealth. L.W. Gambill -------------------------------------------------- Commissioners Office Harrisonburg March 21/73 To the Circuit Court of Ro Co Pursuant to a Decree of the Circuit court of Ro County rendered on the ___ day of April 1871 in a suit in chy depending in the said court between Wm S. Vanpelt & wife and Gessner Messick &c the undersigned one of the Comms of the said Court to whom said cause was referred by said decree with instructions to ascertain and report the amount of assetts (sic) of the Est of Geo Messick __ in the hands of Gessner Messick at the time of the institution of this suit and also report such other matters as either party may desire or that the Comm may deem necessary “ reports to the court that after having given the parties notice he proceeded to take the a/c required by said decree. The Comm ascertains from the answer of Gessner Messick that at the time of the death of Geo Messick he was indebted to the said Geo Messick the sum of $700 that he had in his possession also some personal property which however has been delivered to the ptffs in this cause: The Comm also ascertains from the deposition of Asher Messick that he is indebted to the Est of Geo Messick $100 part of the $500 which was a charge upon the land conveyed to said Asher Messick by the said Geo Messick. The Comm upon the evidence makes up the following statements showing the amt due the est of Geo Messick from the said Gessner Messick and Asher Messick. The Est of Gessner Messick To the Est of Geo Messick 1864 March To amt due the said Est $700.00 “ Int To Apr 15/1873 382.25__ $1082.25 Asher Messick To the Est of Geo Messick 1857 Dec 25 To amt due said estate $100.00 “ Int to April 15/73 91.67__ $191.67 From these statements it will appear that on the 15 day of April there will be due the Est of Geo Messick from the Est of Gessner Messick the sum of $1082.25 of which sum $382.25 is Interest. It will also appear that at the same date Asher Messick will be indebted to the said Est the sum of $191.67 of which sum $91.67 is interest. Given under my hand as Comm of the said Court the day & year first aforesaid. For Comm 4.50 Sheff 1.50 A.M. Newman ---- 6.00 A.M.Newman Exceptions to Comm Report The above report is excepted to by the Council for Defts on the ground that the Commissioner does not allow any credits to the deft Gassner Messick for board of George Messick - dec depositions The report is not complete & filed in time for hearing at this time. It was not filed until 29-April - only five days ago. (unreadable signature) for Defts May 8th 1873 I waive the second exception above named as to time of filing the above Report (same unreadable signature) -------------------------------------------------- At a Circuit Court Continued and held for the County of Rockingham on Thursday the 8th day of May 1873 Wm S Vanpelt & wife Plaintiffs) agst )In chancery Gessner Messick Defendants) This Cause came on the 8th day of May 1873 to be heard again upon the Papers heretofore read former orders and decrees and the Report of Commissioner A.M.Newman to which there is no exceptions and also upon the amended bill and answer of the guardian ad litum exhibits and depositions and the process upon the said amended Bill having been duly executed, and a decree___ had as to the adult Defendants the said amended bill is taken for ___ as to them and being argued by counsel upon consideration where of it is adjudged ordered and decreed that the said exceptions be overruled and that the said report be confirmed and that the said W S Vanpelt as Trustee of Eliza J Vanpelt and her children do recover from the defendant Wm R H Messick as admr Deboni Non of Gesner Messick decd the sum of One Thousand & Eighty two Dollars and 25 cents with legal interest thereon from the 15 day of April 1873 and the costs of this suit and that he recover against the Defendant Asher Messick the sum of One hundred and ninety one Dollars & 67 cents with interest thereon from the 15 day of April 1873 and the costs of this suit, and that he have leave to ___ ___ executions against the said Defendants for the several sums of money & interest and costs aforesaid but when the said costs of this suit shall have been recovered upon one of said Executions they shall not be recovered on the other, and when the said Trustee shall receive said moneys he shall after paying the costs of this suit out of the same including fifty dollars his attorneys Fees invest the balance in Real Estate for the use and benefit of the said Eliza J Vanpelt and her said children in accordance with the Trust aforesaid. A Copy Teste L W Gambill CCCRC -------------------------------------------------- To the Hon N.H. Turner judge of the Circuit Court of Rockingham County Virginia The joint and several answer of Preston T (?) Vanpelt, Alice C. Vanpelt, George A. Vanpelt and Mittie J. Vanpelt infants under the age of twenty-one years, by their guardian ad litum L.W. Gambill, to a Bill of Complaint exhibited against them and others by William S. Vanpelt and Eliza J. his wife not confessing or denying the allegations of said Bill, submits the rights and liabilities of the said infant defendants to the control and protection of this Honorable Court, and as in duty bound will ever pray &c L.W. Gambill Guardian Ad Litum -------------------------------------------------- Vanpelt trustee vs Bill of Review Gasner Messicks Adm To the Hon Mark Byrd Judge of the Circuit Court of Rockingham County, Virginia, Humbly complaining your orator William S. Vanpelt as trustee for Eliza J. Vanpelt and her children showeth unto your Honor that on the 19th day of October 1853, George Messick the father of the said Eliza J. Vanpelt sold & conveyed to his son Gasner H. Messick a tract of about 100 acres of land in said County and took from said Gasner Messick for and in consideration of said land five bonds for $100 each, payable respectively on the 25th day of December 1853, 1854, 1855, 1856 & 1857, also an agreement to pay to said George Messick $20 a year for his support - All of which will more fully appear from a copy of the deed of conveyance from said George Messick to Gasner Messick taken from the Court records of this County and herewith filed as exhibit (3) as part hereof, In which deed a vendors lien was retained on said land to secure the several bonds & payments aforesaid, And the said George Messick afterwards towit, on the __ day of ___ 186_, made & published his last will & testament in which he devised about $1500 due to him from said Gasner H. Messick & his son Asher Messick, to the said Eliza H. Vanpelt for life with remainder to her children, and after the death of said George Messick in or about 1863 said will was admitted to probate in the County Court of said County, But was subsequently destroyed with the other records of said office by Gen. Hunter in 1864, And at September Rules 1869 your orator and his wife the said Eliza J. Vanpelt filed a bill in this court against said Gasner H. Messick to recover said money, and said Bill was subsequently amended so as to make said Asher Messick, the children of said Eliza J. Vanpelt and the administrator of said George Messick and others parties thereto, And at the April term of said Circuit Court 1871 the said cause was refered (sic) to a commissioner of this court to ascertain and report the amount of assets in the hands of Gasner H. Messick and such other matters as either party might require, or that might be deemed pertinent by the commissioner, The said Gasner H. Messick filed his answer to the said original Bill in which he admitted his said purchase of 100 acres of land from his father George Messick, that he was to pay his father $500, and that at the time of his fathers death in 1863 he owed his said Father George Messick about $700, but claimed some offsets. Various Depositions were taken and finally the said deed “3” was found amongst the said burnt records and was filed in said cause as exhibit “3”, which so fully showed the character and amount of said Gasners indebtedness to the estate of said George Messick as to leave no farther doubt, and commissioner Newman made his Report accordingly, and showed that there was due from Gasner Messick to George Messicks estate on the 15th day of April 1873 $1082.25 cents, but failed to show that the said debt was a vendors lien on the lands of said Gasner Messick as aforesaid, And on the 8th day of May 1873 the said Report was confirmed, without stating the true character of said debt or that it constituted a lien on the lands aforesaid, but as the said Gasner had been appointed or rather named in said will as one of the Executors of said will and as trustee for Eliza J. Vanpelt the said debt seems to have erroneously assumed the character of a fiduciary debt instead of a vendors lien and therefore the said Decree inadvertantly does not show what kind of debt it is, whereas the said decree should not only define its real character but should assert the vendors lien & provide for the payment of the debt by a sale of the said land if necessary, All of which will more fully appear from the papers in said cause, which are made part thereof, that Wm. R.H. Messick - the Admr of Gasner Messick be made a Defendant to this Bill & be required to answer the same under oath and your Orator therefore prays that the said decree of May 1873 be reviewed, reversed and set aside, for the reasons aforesaid, and that such decree be entered as the facts aforesaid warrant, justify & demand, And as in duty bound he will ever pray &c Wm S. Vanpelt Virginia Rockingham County towit William S. Vanpelt whose name is signed above this day personally appeared before me a J.S. Harnsberger a Notary Public in and for said County and made oath that the facts set forth and the statements made in the foregoing bill are true to the best of his knowledge and belief. Given under my hand this 27th day of April 1875 J.S. Harnsberger, N.P. -------------------------------------------------------