Benjamin F. Treadway & Wife Vs. Hezikeal (Hezekiah) P. Neil ECT

Summons to Appear contained within the File of:

Chancery Court Case , Scott Co. VA-1867-014Benjamin F. Treadway and Wife

Benjamin F. Treadway and Wife Vs. Hezikeal P. Neil ECT

Summons to appear, contained in the file.

To the Sheriff of Scott County , We command you to Summon JAMES ALLEN , to appear before the Judge of our circuit Court of Scott County, at the Court House, at the Clerks Office at the rules? To be held on for our said court on the 1^st Monday in December next, to answer a bill in Chancery exhibited against him and others by Benjamin F. Treadway and Elizabeth his wife formerly Elizabeth Allen.

And have then there this writ. Witness, Hansford W. Carter Clerk of our said Court at the Court-House, this 12^th day of October 1854 in the 79^th year of the Commonwealth.

S.H. Morison D.C.

(Notice the date for this Record was 1867 and the date for this summons was 1854. So it looks like they started this suit in 1854 and it stayed in the court for 13 years. I guess things weren’t much different then than today in the courts.)

To the Sheriff of Scott County – Greeting

We command you to summon Hezekiah P. Neil executor of John Allen decd. Esther Allen widow of said John Allen, Thomas Allen, John G. Allen, Samuel Allen and Causby Allen children of John Allen decd.

To appear before the Judge of our Circuit Court for Scott County, at the Court-House, on the 1^st day of the next September term to answer a bill in Chancery exhibited in our said Court against them by Benjamin F. Treadway and Elizabeth his wife formerly Elizabeth Allen.

And have then there this writ. Witness Hansford W. Carter, Clerk of our said Court at the Court House, this 21^st day of August 1854 in the 79^th year of the Commonwealth.

S.H. Morison D.C.

(Note: Notice here that in this particular Summons the children are listed just as they are in the Will that John had written in March 1840, and that James was summoned separately. In the actual complaint by Elizabeth and Benj. When the list of children of John was written, at first the person writing it up listed it just as it was in the Will also, but then went back and inserted James’ name. Esther was abt 3 or 4 months pregnant when John died in Jan of 1841 so that is why James was not “named” in the will.)

To the Sheriff of County – Greeting:

We Command You to Summon, Hezekiah P. Neil Executor of John Allen decd, Esther Allen widow of said John Allen, Thomas Allen, John G. Allen, Samuel Allen, and Causby Allen, children and heirs of the said John Allen decd. To appear before the Judge of our Circuit Court for Scott County, at the Court House, on the 1^st day of the next September term. (this is just a repeat of the one above it)

To the Sheriff of Scott County, Greeting:

We Command you to Summon William B. Neil

To appear before S.H. Morison a Comr. In chancery for Scott County ……on the 15^th day of March 1856. To testify and the truth to speak, on behalf of H.P. Neil, in a certain matter of controversy depending in our said circuit court between B.F. Treadway Et al. Plaintiff and H.P. Neil Et al.

Defendants and this he shall in no wise omit under the penalty of twenty dollars. And have then there this writ. Witness, Smith H. Morison a comr. Of our said Court, at the Courthouse, this 11^th day of March 1856 in the 80^th year of the Commonwealth.

S.H. Morison

Complaint of Benj. And Elizabeth:

To the Honorable G.W. Hopkins, Judge of the Circuit Court of Scott County:

The bill of complaint of Benjamin F. Treadway and Elizabeth his wife, formerly, Elizabeth Allen humbly represents, that John Allen the father of the female complainant died in Scott County in the winter of 1840-41, leaving a Will, in which he appointed his wife Esther and his brother in law H.P. Neil his executrix and executor. The Will was admitted to record on the 9^th of February 1841 by the County Court of Scott County and the said Esther Allen and H.P. Neil qualified, executrix and executor. The estate was inventoried and appraised, the personal property appraised amounted to the sum of $702.521/2, and there was only a part of it sold, amounting to $338.76. The widow, Esther, was permitted by the said H.P. Neil extor. To retain Three hundred and ten dollars and 88 cents worth of the appraised property. The whole personalty, except which the widow retained was absorbed by debts due from the testators estate, leaving unpaid a balance. Then the said executor sold the real estate entire, so that the family was left stripped of everything. And such being the condition in which the family is left, complainants have been induced? to look into the actings and doings of the executor to see if all has been rightly done. The exectr. Has made settlements and errors exist appearing on the face of them which they ask may be corrected.his executrix and executor. The Will was admitted to record on the 9 of February 1841 by the County Court of Scott County and the said Esther Allen and H.P. Neil qualified, executrix and executor. The estate was inventoried and appraised, the personal property appraised amounted to the sum of $702.521/2, and there was only a part of it sold, amounting to $338.76. The widow, Esther, was permitted by the said H.P. Neil extor. To retain Three hundred and ten dollars and 88 cents worth of the appraised property. The whole personalty, except which the widow retained was absorbed by debts due from the testators estate, leaving unpaid a balance. Then the said executor sold the real estate entire, so that the family was left stripped of everything. And such being the condition in which the family is left, complainants have been induced? to look into the actings and doings of the executor to see if all has been rightly done. The exectr. Has made settlements and errors exist appearing on the face of them which they ask may be corrected.And the first to be noticed is $50 difference between sale bill of the amount of sale as charged against extr. In his first attachment.

his executrix and executor. The Will was admitted to record on the 9 of February 1841 by the County Court of Scott County and the said Esther Allen and H.P. Neil qualified, executrix and executor. The estate was inventoried and appraised, the personal property appraised amounted to the sum of $702.521/2, and there was only a part of it sold, amounting to $338.76. The widow, Esther, was permitted by the said H.P. Neil extor. To retain Three hundred and ten dollars and 88 cents worth of the appraised property. The whole personalty, except which the widow retained was absorbed by debts due from the testators estate, leaving unpaid a balance. Then the said executor sold the real estate entire, so that the family was left stripped of everything. And such being the condition in which the family is left, complainants have been induced? to look into the actings and doings of the executor to see if all has been rightly done. The exectr. Has made settlements and errors exist appearing on the face of them which they ask may be corrected.And the first to be noticed is $50 difference between sale bill of the amount of sale as charged against extr. In his first attachment.In the second place there is an overcharge of $5.67 on the note of John B. George of $150, dated 29^th Dec. 1836.

Third the charge of $70.00 the amount of Wm. Ding’ note is objected to. Complainants know not what this note would have arisen from, and they demand proof to show it’s validity.

Fourth, the widow should have been compelled to account for the value of the property retained, say $310.88 before any of the realty could have been sold.

Fifth they know not, nor are they informed what the note of $721.11 was for and they demand proof of it. Complainants have been told that the testator gave this note a few days before he died, he was then sick and they are further informed that he was incompetent to transact any business. IF so for that cause the note is void.

Sixth the act of the execr. For $ 32.17 is rejected to and proof of its validity is required.

Seventh the charge of $83.33 of 29^th Sept. 1840 and the charge of $100 of 15^th Oct are both objected to. The executor, compelled testator for a lot of cattle, say 11 or 13, that the said execr. Within bought from testator, and drove to market and sold for him, and neither amt. of their price, or amt. of what they sold for, the two sums were paid.

Eighth they object to charge of $44.15 for interest in settlement of 19th July 1847 on disbursements ending with the current year, 31^st Dec. 1841 and $9.05 interest on that. And they object to the item of $246.86 in the same settlement, and to the sum of $98.80 interest in that .

Ninth they object to the commission of 7 percent on the sum of $2838.76, that being more than is usual, and supposing the administration right , it is to much given the sum of $2500 arose from a simple sale of the land.

Tenth they object to the acct. of $39.50 allowed the executor, and request of him that he show it to be correct.

Eleventh by acct. settled 10^th Sept 1844 it appears that the executor paid amt. $ 2024.35 ?, that he was allowed a commission upon that, and they object to any commission upon it.

Twelfth they object to the Pmt. To H.S. Kane Atty. For putting in an answer for the infant heirs of John Allen decd. at the suit of the Warders. His beyond which is usual, and the defense lay upon Huganot Culbertson who were parties to the suit of whom John Allen bought the land, then in controversy.

Thirteenth the complts. Charge that one dollar was overpaid Valentine Boatright and that $8.60 was overpaid Jacob Dooley, and that ?60$ was overpaid John B. George on his note of $ ____

The complts. Require the executor to go into a detail, minatily?(mentaly?), of the sale of the land to disclose the first and all the contracts about it, and to show why he sold it, and to say if he could not have sold it in a manner different so as to have realized more. Complainants allege that the land was sacrificed, and they will ? To show it. From the foregoing statements it will appear to the court that the estate of John Allen, the testator has been entirely expanded, (for the last settlement will show the disposition full of it, and perhaps something more) and that the executor has in the discharge of his duty, or his attempt at it, has been remiss and careless and thereby injured the complainants, and those concerned in the estate, and that he has taken credit for sums that he was not entitled to , and been allowed commissions that the circumstances forbade. And commissions that the law did not allow at all. It is to surcharge and falsify the acts settled by the executor that this suit has been brought, to correct the errors, and before statements committed, and to be relieved against charges unfounded, and others forbidden by law, and condemned by equity. And the complts being ? At law & valuable only in equity. Their prayer therefore is that Hezekiah P. Neil executor of John Allen decd, Esther Allen, Widow of John Allen & Thomas Allen, John G., Samuel, & Cosby Allen, James Allen the children heirs of John Allen the testator , be made ? Defendants to this bill & that they answer the same on their corporal oaths. And that the executor, Hezekiah P. Neil, especially & particularly answer the allegations touching his actings & doings, and that he make full disclosures in relation to them, & that he stat the time when the note of $726.11 was taken, & what it was for, and also that he state the origin of the acts of $32.17 and $39.50. The further prayer of complainants on ths one account to be directed to be taken by a commissioner in regard to all the errors charged to exist in the executors acts. And that any ?, and all general relief be granted them on the premises suited to their case & circumstance with equity. And pray the com?? Wit of ???

P.C. Johnston, B. Kern & S. Campbell

Hezekiah’s answer to the complaint:

To the honorable Geroge W. Hopkins, Judge of the circuit court of Scott County.

The answer of Hezekiah P Neill executor of the estate of John Allen decd. To the bill of complaint of Benjamin F. Tredway and Elizabeth his wife formerly Elizabeth Allen exhibited in this honorable court against this defendant and others. This defendant after saving and reserving the all the just and proper exceptions to said bill for its manifold infurbubous and misstatements for answer there to saith that in the performance of the duties devolving on him as executor aforesaid under the will of his testator he fully fairly and justly settled up and closed the business of said estate so far as there were in his hands any assets of said estate. And Dft. Long since made settlement with commissioniers legally appointed by orders of the County Court of said County to settle the executorial account of Deft. As executor of said estate and Deft. Humbly conceives that so long a period of time has elapsed since the date of said settlements that His Honorable Court will not disturb them. Deft. Refers to said settlements and reports of the commissioners Smith and Morrison together with the vouchers and papers connected therewith as part of his answer, in regard to the charge in Plfs. Bill that Deft. Should have exhausted all the personalty before he was authorized to make sale of the land under the will this Deft refers to the will of his testator, and prays that the same may be read and considered as part of this answer from which it will appear that as executor Deft was fully authorized to make sale of the land as well as of the personalty without any such restriction as the Plfs couled(called) for, but Deft answers that the personalty and land of said estate after being sold were not sufficient to meet the liabilities of said estate.

In regard to the error of $50 charged to have been fallen unto by the commissioner in stating in his account the amount of sales of property of said estate this Deft truly reported the amount of sales and the commissioners has committed an error the paper will shew it and it is not attributed to any fault of Deft

Deft is advised that there is no error of $5.67 in reference to the George note as charged in the bill

The Wm. Dungas note referred to was executed by testator in his life time to said Dungas for a horse beast and the note being presented to Deft for payment this Deft was bound to pay the same as there were no grounds of objection to the payment of it known to Deft nor does he yet know of any objections that could be urged against the payment of said note for which testator received a valuable consideration.

Deft denies that under the will the widow should have been compelled to account for $310.88 the value of the personality that she claimed before Deft could make sale of the realty. The will placed Deft as executor under no such restriction in regard to the sale of the land as Deft has heretofore stated. And the Course taken in regard to the sale of the land was required by the best interest of the estate to meet its liabilities which are not yet all discharge there being some debts against the estate still remaining unpaid to wit $100 being a note for land executed by testator to Joseph Hagan and also some small accounts and a balance of

$82.73  reported by the commissioners to be due to Deft from said estate.

As to the note of $726.11 executed by testator to Deft. Testator had borrowed from David L. Cocke upwards of $400 to and him in paying Samuel Wallace for the land he purchased from said Wallace, and Deft had become the security of Testator in said note to said Cocke and the said note was at interest for several years when John A. Mann bought the note or obtained it to enforce collection and Defendant paid said Mann $500 the principal and interest for Testator and Deft took up said note and delivered it to Testator which was a part of the consideration for which said $726.11 note was executed. Deft also let Testator have a horse beast for Miles Jennings at the price of $50 which testator owed Jennings, and Deft loaned testator money making up the said amount of $726.11 for which said note was executed by testator to Deft and testator was wholly competent to attend to his business when he executed said note of $726.11 to Deft which note was founded on a full and fair consideration as aforesaid.

As to the account of $32.17 in favour of Deft against the estate the items contributing the account are set forth in the account which is known to be just by the widow of said testator being means furnished testator about the time of his last sickness when he was needy.

In regard to the item of $83.33 the said sum was due from testator to John A. Mann which testator desired Deft to pay to said Mann for him and testator gave said Mann an order requesting Deft to pay said sum which Deft paid as a matter of accommodation to testator who was Defts brother in law.

Deft paid Jno. B. George $100 on the note which he held against testator which $100 was a part of the proceeds of the cattle referred to in the bill and the balance of the proceeds of said cattle deft paid to testator in money some time before he died which was an individual transaction between Deft and testator long since settled and acquired in for upwards of fifteen years and can not now be disturbed.

As to the item of $44.15 objected to it is composed of a fee of $25 that Deft had to pay H.S. Kane as counsel in a litigated chancery suit to perfect the ? Of the land of said estate so as to be able to dispose of it for the benifit of said estate which was a reasonable fee and also a note testator had ? To John A. Mann of $17.00 and a clerks ticked to $2.15 which make the sum of $44.15 and on the Man note there had accrued $9.05 interest

In regard to items $246.86 and $98.89 interest objected to Deft refers to the vouchers filed sustaining said items marked No2

In relation to the commission allowed Deft it does not compensate him for his services rendered in selling said estate. There were several suits to attend to and a great many small transactions to settle which occupied a great deal of time and subjected Deft to much trouble and expense for which Deft was justly entitled to said commission and to the ? Allowance of $39.50

The item of $10 paid H.S. Kane as counsel was for services rendered in motions advice in relation to the business of said estate and was not for filing an answer of infant Defts merely as stated in bill.

Deft devises that the services were over paid to the persons as stated in said bill.

Deft sold the land under imperious necessity as the executor to pay the debts of said estate and sold it for the highest price that could be obtained being $2500 which it was believed was $500 more than it could have been sold for to any other person and Deft made but one sale and that was to Peter Houseman and Jeremiah Stair(Starr) and five or six years afterwards the said land was sold for about $1700. ? Deft having fully answered the complainants bill and denying all the allegations of said bill not before denied prays to be here dismissed with his cost.

Fulkerson & Kane

For Defendant

Scott Count Court

This day H.P. Neill (note this looks exactly like Null, which makes case to watch for that in census records)

Personally came before me the undersigned a Justice of said County and made oath that the statements contained in the foregoing answer are true so far as they depend upon his own knowledge and that so far as they depend upon the information derived from others he believes them to be true.

Given under my hand this 14^th day of February 1855

Randolph Dillion