Lane v. Vick

THIS was an appeal from the Circuit Court of the United States for the southern district of Mississippi, sitting as a court of equity.

The case was this.

In 1819, Newit Vick, a citizen of the state of Mississippi, died, leaving a wife and the following children:

Sons.-Hartwell Vick, John Westley Vick, William Vick, Newit H. Vick.

Daughters.-Nancy, Sarah, Mary, Eliza, Lucy, Matilda, Amanda, Martha, Emily.

The wife, however, died in a few minutes after her husband.

In October, 1819, the will of the deceased was admitted to probate in the Orphan's Court of Warren county, and was as follows:

'In the name of God, Amen! I, Newit Vick, of Warren county, and state of Mississippi, being of perfect mind and memory, and calling to mind the mortality of life, and knowing that it was appointed for all men once to die, do make and ordain this my last will and testament, in the manner and form following, to wit:

'Primarily, and first of all, I give and dispose my soul into the hands of Almighty God, who gave it, and my body I recommend to be buried in a Christian-like and decent manner, according to the discretion of my executors.

'2dly. I will and bequeath unto my beloved wife, Elizabeth Vick, one equal share of all my personal estate, as is to be divided between her and all of my children, as her own right, and at her own disposal during her natural life; and also, for the term of her life on earth, the tract of land at the Open Woods on which I now reside, or the tracts near the river, as she may choose, reserving two hundred acres, however, on the upper part of the uppermost tract, to be laid off in town lots at the discretion of my executrix and executors.

'3dly. I will and dispose to each of my daughters, one equal proportion with my sons and wife, of all my personal estate as they come of age or marry; and to my sons, one equal part of said personal estate as they come of age, together with all of my lands, all of which lands I wish to be appraised, valued, and divided when my son Westley arrives at the age of twenty-one years, the said Westley having one part, and my son William having the other part of the tracts unclaimed by my wife, Elizabeth; and I bequeath to my son Newit, at the death of my said wife, that tract which she may prefer to occupy. I wish it to be distinctly understood, that that part of my estate which my son Hartwell has received shall be valued, considered as his, and as a part of his portion of my estate.

'4thly and lastly. I hereby nominate and appoint my beloved wife Elizabeth, my son Hartwell, and my nephew Willis B. Vick, my sole and only executrix and executors of this my last will and testament. It is, however, furthermore my wish that the aforesaid Elizabeth should keep together the whole of my property, both real and personal, reserving the provisions before made, for the raising, educating, and benefit of the before-mentioned children.

'It must be remembered, that the lot of two acres on the bank of the river on which a saw-mill house is erected, belongs to myself, son Hartwell, and James H. Center, when the said Center pays his proportional part.

'I wish my executors, furthermore, to remember, that the town lots now laid off, and hereafter to be laid off, on the aforementioned two hundred acres of land, should be sold to pay my just debts, or other engagements, in preference to any other of my property, for the use and benefit of all my heirs, and that James H. Center have a title made to him for one lot already laid off of half an acre in said two hundred acres, and on which he has builded, when he pays to my executors the sum of three hundred dollars.

'In testimony whereof, I have hereunto set my hand and seal, this 22d day of August, in the year of our Lord 1819.

'The words interlined, 'for the use and benefit of all my heirs,' before signed.

NEWIT VICK. [SEAL.]

FOSTER COOK,

EDWIN COOK,

B. VICK.'

The wife being dead, Hartwell, one of the executors, virtually renounced the executorship, and Willis, the other executor, gave the necessary bond and took out letters testamentary; but being in bad health, he was, with his own consent, removed. John Lane, one of the complainants, who had married Sarah, one of the daughters of the testator, then took out letters of administration with the will annexed, and filed accounts, from time to time, until the year 1829, when he filed his final account and was discharged. He reported the sale of sixty-seven town lots at various prices and to various persons. The debts of the testator were all paid.

In 1831, John Westley Vick sold a portion of his interest, which was subdivided by sundry mesne conveyances, and came into the possession of several holders.

In 1838, the plaintiffs, being residents of Louisiana and Tennessee, filed their bill against all the other descendants of the testator, and claimants under them. It recited the facts above set forth, and proceeded thus:--

'Your orators would further allege, that some years since the said Willis B. Vick departed this life, and that for some years all the executors of the last will and testament of said Newit Vick have been dead. Your orators allege, that only a few lots had been laid off and sold by Newit Vick, in his lifetime, and that your orator, John Lane, as administrator, with the will annexed, laid off by actual survey the said town of Vicksburg, off of the upper end of the uppermost tract, referred to in said will; which will, as your honors will perceive, directed the same to be done. Lots and parts of lots have been sold from time to time by the said administrator, and the amounts of the sales applied to the payment and liquidation of the debts of the said Newit Vick, until all the debts which he, the said Newit Vick, owed, so far as are known, have been paid off and discharged.

'They would further state, that there yet remain lots and parts of lots, and parcels of ground in said town, and on said two hundred acres, which are unsold, and more especially, that part of said town known by the name of 'Commons,' and 'Levee street,' which have descended to the heirs of said Newit Vick, hereinafter mentioned. They would further represent, that the powers of said Lane, administrator, to sell the unsold lots, parcels of ground, as above stated aforesaid, have been doubted and brought into question, which renders it to him a matter of prudence and sound discretion to stop the sales, since the debts of Newit Vick have been paid, and ask the advice of this honorable court, sitting in chancery, who have the burden, and whose duty it is to explain the nature of all trusts, and decree the performance of the same, to say what shall be done with the residue of the unsold lots, and parts of lots, commons, Levee street, &c., in said town, and on said two hundred acres.'

It concluded thus:--

'Your orators pray your honors, upon a final hearing of this cause, to decree a division and partition of the aforesaid lots, parts of lots, commons, and Levee street, to be made between them and the other heirs of Newit Vick; and that said claimants shall be put into possession of the part allotted to her or them, and that the defendants shall account for the rents and profits which they have respectively received. Or if a partition and division of the ground aforesaid, as above asked for, is not, in the opinion of this honorable court, carrying the will of the testator, Newit Vick, into full and complete effect, according to the true intent and meaning thereof, then may your honors decree and order the said John Lane, administrator with the will annexed, to proceed to sell said grounds, upon such terms and credits as you may deem proper, and then distribute the money among the several claimants, according to their respective interests, and grant all such other relief as to justice may belong.'