Williams v. Fraser , 2 Blume Sup. Ct. Trans. 374 ( 1810 )

To the Honorable, the judges of the Supreme court of the Territory of Michigan, sitting in Chancery, respectfully complaining, sheweth unto the Court, Your Orator John R. Williams, one of the heirs, Legatees, and Legal Representatives of the late Thomas Williams of Detroit, Decd That the said Thomas Williams decd who was your Orator’s father was heretofore a merchant extensively concerned in business, and resident in Detroit aforesaid, that the said Thomas Williams did on the thirtieth day of November in the year of our Lord one thousand seven hundred and Eighty five, at Detroit aforesd make and execute a certain writing, purporting to be the Last Will and Testament of him the said Thomas Williams. That the said Thomas Williams, did in and by the said last will and Testament (after requesting that his just debts should be paid, and that the sum of fifty pounds New York currency should be paid to his mother Cornelia Williams, during her natural life) Devise and bequeath, all his Estate, both real and personal, to be equally divided between Cecile Williams the wife of him the said Thomas, and Catherine Williams and your Orator John R. Williams the children of the said Thomas, to them and their issue lawfully begotten, and should either of them die without issue, the part of such one to devolve on the survivors, to be by them Equally divided: and your orator further sheweth to your honors, that the said Thomas Williams did in and by the said Last Will and Testament, appoint Robert McClellan of Albany and William McComb and John Cassety of Detroit, his Executors, to carry the said Last Will & Testament, into effect. And your Orator further sheweth unto your honors, that the said Thomas Williams, shortly after making his said Last Will and Testament as aforesaid, departed this life, without revoking the same or making any other Last Will and Testament, or Codicil, than the Last Will and Testament aforesaid. And your Orator further sheweth unto your Honors, that after the making of the said last Will and Testament as aforesaid, and after the decease of the said Thomas Williams, Cecile Williams the widow and relict of the said Thomas was delivered of a female child, lawfully begotten of her, during coverture by the said Thomas, which said female child was named Elizabeth Williams, and is now living, as is also the said Catherine Williams above named: and your orator further sheweth unto your honors, that the said Robert McClellan, William Macomb and John Cassety named as Executors aforesaid, refused to qualify and take upon themselves the burthen of the Executing of the Last Will and Testament of the said Thomas, as your orator is informed and verily believes: and your orator further sheweth unto your honors that after the refusal of the said above-named Executors, to qualify, and take upon themselves the burthen of the Executing of the said Last Will and testament as aforesaid, to wit on the twenty sixth day of August in the year of our Lord one thousand Seven hundred and Eighty nine, on the petition of the said Cecile Williams widow and Relict of the said Thomas Williams deceased, and agreeably to the Laws of Canada at that time in force, one James Fraser, whom your orator prays may be made a defendant to this his bill of complaint, was duly and legally appointed by William Dummer Powell Esqr First Judge of His Britanic Majesty’s court of common pleas for the District of Hesse, as Curator to administer and take charge of the Estate and effects of the said Thomas Williams decd and to administer the same agreeably to Law the succession having become vacant by reason of the failure of the said Rob1 McClellan William Macomb and John Cassety to qualify as Executors of the said Thomas Williams decd and your orator further sheweth to your honors, that the said James Fraser, in pursuance of his said appointment as Curator as aforesaid, did take upon himself the administration of the Estate of the said Thomas Williams decd and did take into his possession all the books, accounts & Effects of the said Thomas Williams decd and your Orator further sheweth to your honors, that at the time of the death of the said Thomas Williams decd there were many and large sums of money due him, he having been for a long time extensively concerned in trade, as your orator is informed and verily believes: and your orator further sheweth to your Honors that the said James Fraser hath committed great waste of the goods Effects and credits of the estate of the said Thomas Williams Decd as your orator is informed and verily believes, inasmuch as the said James Fraser, hath compounded with various persons indebted to the Estate of the said Thomas Williams decd by consenting to receive as full satisfaction of their debts, sums, far less than the amounts which they were justly and legally indebted to the estate of the said Thomas Williams decd and on the other hand by paying out large sums of money to persons who have exhibited pretended claims and demands against the estate of the said Thomas Williams decd without even requiring the same to be duly and legally authenticated as your orator is informed and verily believes. And further your orator expressly charges that the said James Fraser has been guilty of unjust and improper conduct as curator aforesd inasmuch as he has never yet made any settlement of the Estate of said Thos Williams decd nor has he ever paid over to, or divided between the legatees or Representatives of the said Thomas, any part of the said Estate, altho’ more than twenty one years have elapsed since his appointment of Curator as aforesaid and altho’ your orator, as one of the legatees and legal Representatives of the said Thomas Williams decd would be entitled to receive a very large sum of money from the said James Fraser, upon a fair lawful and Equitable settlement of said Estate: and further your orator sheweth unto your honors that the said James Fraser still retains in his possession all the books of accounts and papers of the said Thomas Williams decd and refuses to deliver the same to your orator, so that it is impossible for your orator to ascertain what sums of money have come into the possession of the said James Fraser as Curator as aforesd and what sums he still detains in his hands, tho’ your orator expressly charges that upon a just and Equitable settlement of the said Estate between the said James Fraser and the legal Representatives of the said Thomas Williams decd it will be found that the said James Fraser as Curator aforesd is indebted to the said Representatives several thousand dollars, as your orator is informed and verily believes. All which actings and doings of the said James Fraser are contrary to Equity and good conscience as your orator is advised and believes; Wherefore For as much as your orator is totally without remedy at Law; & as he is advised that a Court of Chancery is the proper Tribunal to afford him just and Equitable relief in the premises, may it please your honors to grant your orator the writ of subpoena requiring the said James Fraser to appear before your honors, and answer to your orator’s Bill of Complaint; and more particularly that he may be compelled to answer, whether he was not appointed Curator? and did not take upon himself the administration of the Estate of said Thomas Williams decd? Whether he did not take into his possession the books papers & Effects of the said Thomas ? Whether he has not received large sums of money due the Estate of said Thomas? and what sums and at what time? Whether he has not compounded debts due the said Estate, by accepting smaller sums than were really due, as a satisfaction ? in what instances he has done this, and to what amount? Whether he has not paid out the monies of the said Estate to persons setting up claims against the same without requiring them to exhibit sufficient evidence of their claims? Whether he has ever made a settlement of said Estate ? Whether he has ever paid over any sums to the Representatives of said Thomas Williams deceased, and what sums? And finally that he may be required to produce all the books and papers of the said Thomas Williams decd and to render a particular just and true account of all his transactions as Curator of said Estate: and that he may be required and decreed to pay and satisfy to your Orator as one of the Heirs, Legatees, and legal Representatives of the said Thomas Williams deceased, such sum as may appear to be justly and Equitably due & oweing-to your orator as such, from the said James Fraser as Curator aforesaid, and that your orator may have such further and other relief in the premises, as to your Honors may seem equitable and just, may it please your Honors to grant the writ of subpoena aforesd

And your Orator further sheweth to your Honors, that the said James Fraser is about to leave this country, and to depart from the Jurisdiction of this Court, in a very few days, and that the said James does not intend again to return, as your orator is informed and verily believes: wherefore your orator further humbly prays your Honors to grant the writ of ne exeat against the said James Fraser, prohibiting his departure from the country, until he shall have given security (in such sum as your orators may deem proper) for the performance of such Decree as your Honors may make in the premises— Harris H. Hickman

Counsel for Complt

Territory of Michigan

DISTRICT OF DETROIT: TO WIT

Personally appeared before me the Subscriber a Justice of the peace in and for the said Districts, John R. Williams, who [made] oath on the holy Evangelists of Almighty God that the facts contained in the foregoing Bill of complaint, so far as they are stated to be of his own knowledge, are true, and so far as they are stated, on the information of others, he believes them to be true. Jn° R Williams

Sworn & Subscribed before me, at

Detroit, this Eighteenth day of

October A. D. 1810.

Geo. McDougall

Justice of the Peace D D

Territory of Michigan, the nineteenth day of October, one thousand EIGHT HUNDRED TEN.

Let a writ of ne exeat issue on this application, the penalty to be indorsed to be one thousand dollars.

The clerk of the

'Supreme Court

Woodward, judge. John Griffin one of the Judges in and over the Territory of Michigan.

[In the handwriting of Harris H. Hickman]

[In the handwriting of Harris H. Hickman]

[In the handwriting of Augustus B. Woodward]