McCarty v. McCarty's Extors , 2 Va. Col. Dec. 32 ( 1753 )

Daniel McCarty being possessed of a large personal Estate And among others of a Bond debt of £291 and Interest due from John Fitzhugh one of the Def’ts makes his Will and after several legacies devises the residue to his three Sons D. B. & T. and makes them Executors but because they were under age makes the said John Fitzhugh and the other Def’ts Executors in trust till T. arrived to 17. This Bill was brought by D. one of the sons and residuary Legatees against the Trust Executors for an Account of the residue Of which J. F’s Bond is charged to be part.

I. F. Answers separately and submits whether the debt be not extinguished by his being made Executor which he says he believes was the Testator’s intention because the Deft coming to see him in his last Sickness and expressing some uneasiness about his bond The Testator said if he thought any child of his would trouble him for it he would burn it before his Face Says he married the Testors Eldest daughter and that the testor promised to give him as much as he gave any of his other daughters That he gave the Deft only nine Negroes in his life time and two by his will and that he gave two daughters ^500 a piece by his will and the Def’t [33] hopes to be allowed as much out of the bond as will make his Wife’s portion the same Sayes he employed the Testor to purchase an Estate for him which the testor bought for himself and devised to the Complain’t and hopes that will be considered

Hopkins for the Pl’t insisted

That the Debt tho’ extinguished at Law is Assets in Equity and cited 8. E 4. fo 3. Nichols ag’t Chamberlayne. Nel. 44 S. C. 3. Ch. Rep. Tlud & Rumsey Yel. Phillips ag’t Phillips — 1 Ch. Ca. 292. S. C. Finch 410 Wankford ag’t Wankford 1 Salk. 299. —• Dorchester ag’t Webb 1 Cro: 372.

Sr. J. R. for the Deft.

The testor’s intent was to discharge the Debt by making 1. F. Executor as may be Inferr’d from his discourse with I. F. mentioned in his Answer That collateral proof is admitted in Equity to explain a testor’s intention and cited Lady Granville ag’t Dutchess of Beaufort 2 Vern 648 & Id. 593. 736.

This rule was also insisted on He that will have Equity must do Equity That the Deft, had a great deal of Equity against the testor upon the several Matters disclosed and sworn in his Answer particularly that about his Wife’s portion and the Land.

The Bill was dismist

Note it seemed to be agreed by Sr. J. R. that the Debt was Assets which is certainly a clear point And the Courts Opinion as I took it turn’d upon the Matters disclosed in the Deft.’s Answer.

Vide Sir J. Randolph’s Argument Def. No. 42.

This cause was heard upon the Bill & Answer