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[[FIRST COLUMN]]

THE TRUE INDEX.
SATURDAY MORNING, SEPTEMBER 8, 1866.
FERGUSON'S HEIRS vs. FOX'S EXECUTOR.
Judge Thomas on Monday last delivered his opinion in this case, which was argued at the last term of the Court.  He held that the deeds, by which it was contended that the plaintiffs had surrendered their interests as heirs and distributees of James Fox, were void and of no effect---that John Fox, the committee of James Fox (a lunatic), having kept no account of his committeeship, and their estates having been originally of equal value, and confounded together so as to be incapable of being distinguished, it should be considered that one-half of the estate of which John Fox died possessed belonged to James Fox, and be subject to distribution amongst his heirs and distributees---and accounts were ordered.  As the case is one of general interest we publish the opinion of Judge Thomas in full.

OPINION OF JUDGE H. W. THOMAS.
Ferguson's Heirs vs. Fox's Executor.
The importance and the extent of the interests in this cause have been much diminished by the events of the late revolution in our country, yet it possesses many questions of interest involving still a considerable amount of property; and if I shall be in error in the judgement at which I have arrived, it is consolatory to know that it can be reviewed and corrected by another tribunal.

Samuel Fox, the ancestor from whom the estate now in controversy was derived, departed this life some time in the year 1804, possessed of a large personal and real estate, having first made and published his last will and testament which was admitted to probate in the county court of Fauquier on the 22nd Oct. 1804.  By his will he bequeaths to his daughter Elizabeth, wife of Armistead Blackwell, for life, seven slaves and some other personal property, and in the event of her dying without a child or children, then to be equally divided between his two sons, John and James; all the rest and the residue of his estate both real and personal of every kind and description wherever situate he bequeathes to his two sons to be fairly, impartially and equally divided between them, to be held by them and their respective heirs forever; and he nominates and appoints his two sons, James and John Fox, executors. John Fox alone qualified on the day the will was admitted to probate, 22nd Oct. 1804, in the county court of Fauquier. An inventory and appraisement of the personal estate, amounting to nearly £5000, was returned to the county court of Fauquier on the 25th Jan'y 1805 and ordered to be recorded ; and on the 12th July 1805 Commissioners, by virtue of an order of the said court, proceed to divide the estate of Samuel Fox agreeably to his will (except the part allotted to his widow as dower, as may be reasonably inferred from the papers,) into two parts, allotting one as the property of James and the other of John. This division was returned and recorded at July Court 1805. Following in chronological order we have next what purports to be a settlement of John Fox's transactions as executor of the estate, returned to the Sept. Court 1806, and this settlement shows an indebtedness of £155. 3 s. 4 1/4 d.

It next appears that prior to that settlement, to wit, on the 27th May, 1806, Jas. Fox, by a deed of that date, purports to convey to William Ferguson, and Dolly his wife, for the consideration therein mentioned, of the good will and affection which he bears to the said Dolly Ferguson, as also towards her children, as well as for his future maintenance, all the property, real and personal, wherever situate, with all the rents, issues and profits and hires, due or to become due, which accrued to him, the said James Fox, under the last will and testament of his father Samuel. This deed was admitted to record in the County Court of Orange on the 22nd Dec. 1806.

On the 25th of August 1806, some four months before it was admitted to record and in one month after it was proven before the County Court of Fauquier, William Ferguson and wife institute a suit in the Superior Court of Chancery in the city of Richmond, in which they allege, that after the grant of the executorship upon Samuel's estate, John Fox took possession of the whole estate, of the real, as tenant in common with James, and of the personal, as such executor ; and demanding by virtue of said deed their proportionable part of said estate, and requiring a division and partition thereof.

John Fox, the executor, answering the bill, admits his qualification and the possession of the property ; but denies their right to any portion of said estate by virtue of the deed aforesaid ; for that James, for several years past and even prior to the death of their father, discovered, at times, symptoms of derangement of mind (this, however, he [[remainder cut off]]


[[SECOND COLUMN]]

It remained pending upwards of three years, and until the 24th October 1809, when the following entry is made in the Spotsylvania Superior Court, whither it had been removed from Richmond. By consent of the parties, by their attornies, it is ordered to be certified, &c., that this suit is to be dismissed, each party paying their own costs. And in the Richmond Court, on 12th Feb'y. 1810, it is entered:  This suit is dismissed, being agreed by the parties.  I have looked into and carefully examined the record of this suit, and if it were necessary for me to pronounce an opinion thereupon in my view of this case, I have no difficulty in stating that the proof of the derangement of James Fox, both prior and subsequent to the execution of the deed to Ferguson and wife is convincing, and the proof of his sanity and competence at the time of its execution utterly unsatisfactory and inadequate; and the enquiry naturally presents itself why John Fox, the committee charged with the management and care of the estate should have agreed to this termination of that suit.  He could only do so with a view to the improvement of its condition, and every principle of equity and good conscience would forbid any dealing therewith whereby he might obtain an advantage to the injury of those interested.

Subsequent arrangements and developments furnish the reasons of this abrupt termination. On the 30th Sept. 1809, whilst said suit is pending, three years after his appointment as committee and several months after he had settled an account of his acts as committee, embracing a period as such from 1805 to 1809 and within less than thirty days before the order removing the cause to Richmond to be dismissed agreed, a deed is obtained by John Fox, Armistead Blackwell and Elizabeth Blackwell, they constituting with Dolly the sister of the half-blood, the only heirs of James, from William Ferguson and Dolly his wife, conveying to them, (for and in consideration of £480,) in equal proportions, all the property and estate of every kind, nature and description whatsoever contained in the deed between James Fox and William Ferguson and wife, and the use, profit and increase of the said property, and all the right, title, interest, claim and demand of them, the said Ferguson and wife, of, in and to the property in the said deed mentioned, whether derived under the same or in any other manner, to have and to hold the same against the claims of all and every person claiming or to claim through or under them, shall warrant and defend.  And the said Ferguson and wife for themselves, their heirs, &c., do release, acquit, and forever quit-claim to all, and all manner of estate of which the said James shall die seized, possessed of, or entitled to; and they covenant, that they will make any further conveyance necessary to convey to them all the right, title, interest and claim of them the said Ferguson and wife to any estate which the said James may have at his death; provided, that it shall not bar them of any claim to any property which James Fox shall or may hereafter acquire over and above the estate which he now hath and is entitled to, and the increase and profits of the same.  To this deed there is a memorandum annexed, executed at the same time, attested by the same witnesses, and to be incorporated as part thereof, to the effect that said Ferguson and wife were not to be responsible in any way in the event that if the title of the said Fox and Blackwell and wife should be disturbed by any person whatever, not claiming under the said Ferguson and wife, they are not to be responsible for the consideration (the word not being evidently omitted in the original) within mentioned, nor for damages in any manner whatever.

This deed with its covenants and provisos, and more especially with the memorandum annexed, enables us to penetrate the whole scheme.  His brother James was hopelessly non compos.  If he died in that condition he and his sister, Blackwell and his half sister Dolly, would inherit his estate; and he calculated the chances of survivorship.  By the purchase of Mr. Blackwell's interest (which he subsequently effected) and the chance of James dying prior to Mrs. Ferguson, he would take James' estate, and hold it as he had done through the long series of years he was insane, with none to question it.

I think it evident that Ferguson and wife doubted the sufficiency of James' deed to them; hence we find them providing that in no event are they to be held responsible for the consideration received by them nor for damages in any manner whatever.

Regarding the circumstances surrounding these transactions, and even admitting that by the deed of Sept. 1809 Fox and Blackwell acquired title to the estate of James, a question not necessary in my view of the merits of the case to pass upon, can it be supposed that those who stood in the relation they did can be allowed in a Court of Equity, under such circumstances, to become the purchasers of this estate, and by such means to appropriate the whole to themselves.- Courts of Equity are not slow to imply a trust and to fasten upon the property for the benefit of those interested.  This principle is so familiar that it needs only to be stated.  It was well illustrated by one of the [[remainder cut off]] 


[[THIRD COLUMN]]

[diffi]culties, a Court of Equity should not interfere with them.

Now whilst it may be true as a general proposition, that when a compromise of a doubtful right is fairly made between parties, its validity cannot depend upon any future adjudication of that right. And where compromises of this sort are fairly entered into, whether the uncertainty rests upon a doubt of fact, or a doubt in point in law, if both parties are in the same ignorance, the compromise is equally binding and cannot be affected by any subsequent investigation and result. But if the parties are not mutually ignorant, the case admits of a very different consideration, and any acts done or contracts made under a mistake or ignorance of a matter of fact or of law, is voidable and relievable in equity. See 1 Story, 147.

In Rainsden vs. Hylton, 2 Vesey, 304, the Court held that in a deed executed between brother and sister, a general release was not binding as to rights of which the parties were ignorant at the time. In Cann vs. Cann, 1 P. Wms. Lord Macclesfield says: If the party releasing is ignorant of his rights or if his right is concealed from him, by the person to whom the release is made, there will be good reasons for setting aside the release. In Gibbons vs. Cant, 4 Vesey, 849, Lord Alvanley says: No man can doubt that this Court will never hold parties acting upon their rights (doubts arising as to those rights), to be bound unless they act with full knowledge of all the doubts and difficulties that arise. And 1 P. Williams, Broderick vs. Broderick; either suppresio veri or suggestio falsi, is a good reason to set aside any release or conveyance. And in Pusey vs. Desbonovie, where a father in his will recommended to his daughter to accept a legacy in lieu of her right by the custom, and she accepts the legacy and releases her right, her brother the executor informing her that she was bound either to waive the legacy given her by the father or to release her right by the custom, the Court held that she was entitled to have an account taken and know what her part was; and that only when she was fully apprised of this, then, and not till then, she was 'to make' her election, for probably she would not have elected to accept the legacy, had she known or been informed what her part amounted to before she waived it and accepted the legacy. The general ground upon which all these distinctions proceed, says Judge Story, vol. I, page 168, is, that mistakes or ignorance of facts, or parties, is a proper subject of relief only when it constitutes a material ingredient in the contract of the parties and disappoints their intentions by a mutual error, or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the conscience of either party.

And in all family compromises or arrangements the same principle obtains. For the law, in order to prevent undue advantage from the unlimited confidence, affection or sense of duty which the relation naturally creates, requires the utmost degree of good faith in all transactions between the parties. And if there be any misrepresentations, or any concealment of a material fact, or any just suspicion of artifice or undue influence, Courts of Equity will interpose and pronounce the transaction void. 1 Story, page 232, 3 leading cases, 395, 397.

Let us apply these principles of law to the facts in this case. James Fox died about the 28th or 29th October, 1843, Dolly his half sister some days prior. In the Spring of 1844, Mr. James Y. Horner (who had intermarried with a daughter of Mrs. Ferguson, but who at that time was dead), visits Fauquier, and Mr. Fox informs him that he understands some of the heirs of his sister talk of bringing suit against him, and desires him, Horner, to see the heirs and request them not to do so; that a suit would avail them nothing; and that if they would not do so, he would make them a handsome present of $8000, and that would be nothing to what he would do for them. The old gentleman declines the mission, but suggests his son, Frederick, as a competent business man, and as one who would be likely to take an interest; and thereupon he is duly appointed the agent to confer with the Ferguson heirs. It is worthy of the enquiry, why John Fox was at this particular period so solicitous about the matter of  James' estate; and what was the prompting motive to these generous feelings, for his distant relatives, so suddenly aroused. Could it be that he began to have doubts of the propriety of the manner in which he had obtained possession of the whole James' Estate? Did he begin in his own mind to question, whether or no he had secured title thereto under the deeds from Ferguson and wife, and Blackwell and wife, and that now, James being dead, this title, under which he had so long held unquestioned this property, might become the subject of investigation ? Let the sequel answer.— 

The agent proceeds upon his mission; he visits the heirs, and urges upon them a compliance with the old gentleman's wishes; that he was actuated by pure motives of generosity, and what he designed doing was intended purely as a gratuity; that if they had any claims, what he wished them to do would not affect it; and if they would act kindly towards him, he was of the opinion that they would at his death get the whole of his estate. These are the declarations of John Fox's agent, made within the scope of his authority, and these declarations, are the declarations of John Fox himself: See Story on agency page 152. In response to these requests, we have a letter from some of these heirs to John Fox, No. 1, informing him that this news of their intention to bring suit is a fabrication, for "we consider that the deed of release from Wm. Ferguson and wife, dated 30th September, 1809, to you and Blackwell did fully, and to all intents and purposes convey the entire interest of the said Ferguson and wife, with all the interest of their children. We wish you therefore to understand that we set up no claim, and that we will sign any paper your agent may present more fully to convince you, and we assure you, that any donation your generous disposition and noble heart may prompt you to make, will be received by your relations with a feeling of profound gratitude."

Can there be fuller evidence that at that time these parties supposed they had no interest in James Fox's estate; that they were bound by the stipulations, as they express, contained in the deed from their ancestors? Upon the reception of this letter, what was John Fox's obvious duty? Was it, by those simulated acts of generosity of conferring a bounty upon these heirs, to endeavor to shield himself in the possession of this estate? Or should he not rather, finding them thus ignorant of their rights, have informed them, and then fairly and generously have sought to purchase their interest?

On the contrary, however, we find him, through his agent, doling out sums of money not as a consideration for anything bestowed ; but in every instance with perhaps a solitary exception, expressing that it is intended as a gift.

Under these influences and induced thereto doubtless by the representations made to them, the deeds 
[[remainder cut off]]


[[FOURTH COLUMN]]
chargeable with such laches as will justify the Court in withholding from them what it considers their just claim; and this brings me, in conclusion, to what I regard as the just and proper measure of relief.

The plaintiffs contend that inasmuch as the Executors of John Fox are unable to designate the property of James Fox, the whole having been used and held by John as his own, and being unable to show clearly, and satisfactorily, the part that belongs to himself, and the part to James' estate, and that this being occasioned by his own wrongful act, he must forfeit the whole. I cannot find in the researches I have been enabled to make any judicial determination in Virginia touching this point; and those decided elsewhere are meagre and unsatisfactory.  In my opinion, so far as I have looked into the question, this right to the whole, arising from confusion of property, is only applicable to such cases where all traces of the identity of the property so mixed is lost; as if one man mixes with the property of another articles of different value, producing a third value the aggregate of both, and this through his fault, so that the other party cannot tell what the original value of his property he must have the whole. But where the property mixed, as corn or flour, where the value is equal, the party is entitled to a given quantity; and in the case of Lupton vs. White, 15 Vesey, Lord Eldon says: If parties have been permitted for a long time to deal with property as their own, considering themselves under no obligation to keep accounts as if there was any adverse interest, having no reason to believe the property belonged to another, though it would not follow that being unable to give an accurate account they should keep the property, yet the account would be directed not according to the strict course, but in such a manner as under all the circumstances would be fit. And this I take to be the true rule, to order such an account, where property is claimed under such circumstances, as will best meet the ends of justice. In this case, I do not think the difficulties apprehended exist, the causes to which I have already alluded, have freed it of much of its embarrassment in the view I have taken. Samuel Fox by his will directed a fair, equal and impartial distribution of his estate between his two sons.— John went into the possession of the whole, used and traded with it, and it occurs to me that substantial justice may be arrived at without the necessity of the investigation indicated. It is fair to presume that whatever estate he now has, is the result of the enjoyment and dealing with James' part which was equal to his own. Let it be ordered that John's estate be ascertained before a master and upon the rendition of the account, it be divided into two equal parts, and that complainants be held entitled, after deducting what would be a reasonable compensation for the care of the person of the said James, to their proportion of one moiety, as directed by the statute for distributees of the half blood.

CONVENTION OF LOYAL SOUTH

Transcription Notes:
Stopped at top of second column update: stopped at top of third column ---------- Reopened for Editing 2024-03-07 06:18:52 reviewed and made corrections to transcription for first column and first paragraph of second column (continue review at "Subsequent arrangements and developments...") ---------- Reopened for Editing 2024-03-07 22:24:17 ---------- Reopened for Editing 2024-03-08 15:49:34 reviewed and made corrections to transcription for second column (continue review at top of third column) ---------- Reopened for Editing 2024-03-08 17:09:46 I re reviewed the first two columns and deleted a the that wasnt there and added the question mark at the end of the first column. Everything else in column 1-2 that were already reviewed are correct. In column three I just added quotation marks is it "See Story on agency page 153" or 152? to review column number 4 ---------- Reopened for Editing 2024-03-08 17:59:28 It looks to me like page 152, so I changed it from 153. I changed the [[?]] at the end of the columns to [[remainder cut off]]