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Journal of a Lady of Quality
Appendices: - X. The Children's Inheritance

IN the ordinary course of events, the Rutherfurd children, at their coming of age, would have fallen heirs to a very considerable property from their father and mother and Mrs. Jean Corbin, large enough to have made them in a measure financially independent. This inheritance would have been derived from three sources.

First, from their mother, who received from the estate of Governor Johnston, her second husband, (a) two plantations, Possum Quarter in Granville county and Conahoe in Tyrrell county, which with certain other lands constituted her share of the Johnston real estate; (b) a considerable number of negroes; and (c) a fifth share in the residuary estate.

Secondly, from their father, who at one time possessed (a) the extensive lands which were later seized by John Murray of Philiphaugh, (b) the legacy of Alexander Duncan of 1000, (c) his share of the debts due the firm of Duncan & Rutherfurd, and (d) the debt due him from the province for running the boundary line with South Carolina. This property had probably all been lost before 1782, for we know that Rutherfurd died insolvent.

Thirdly, from Mrs. Corbin, who at her death left the children (a) certain plantations secured to her under the terms of her marriage settlement with Francis Corbin, (b) a considerable number of negroes, and (c) a certain amount of personal property, stock, utensils, etc., in part from the "Point Pleasant" plantation. "Point Pleasant" itself was not included, as Mrs. Corbin had only a life interest in that estate and could not dispose of it by will.

Owing to various circumstances, most important of which were Rutherfurd's bankruptcy and the confiscation of Loyalists' estates during the Revolution, this inheritance had dwindled by the year 1783 to relatively slender proportions, and at that time the recovery of even a small part seemed very uncertain. The children soon found that they could count on success in three particulars only: (a) the negroes, originally numbering from 150 to 175 in all, (b) the arrears of salary, of which, in 1783, 2018 remained unpaid, and (c) the plantation "Hunthill," which had been acquired for them in trust by their father in 1772, probably from money obtained in part from the sale of Possum Quarter and Conahoe in 1768 (178o) and in part from other sources.

It is not necessary or possible to follow in all details the early stages in the history of the recovery of these properties. In 1784, John Rutherfurd, Jr., obtaining leave of absence from his duties at Gibraltar, went to Xorth Carolina, "to endeavor (so his memorial states) to obtain a repeal of the sanguinary laws and resolves against himself and his family and in hopes of recovering some part of the property they have thereby lost" (Audit Office Papers, American Loyalist Claims, 36, pp. 339-354). At first the children employed as their attorneys Alexander Schaw, Fanny's husband, and Alexander Anderson, a lawyer of Princess Street, Lothbury, London, but when John, Jr., arrived in Wilmington in 1784, he put the business into the hands of Archibald Maclaine and George Mackenzie, and at a later visit, in 1786-1787, into those of John London, formerly town clerk of Wilmington and all merchant there. London remained the children's attorney in North Carolina for a quarter of a century. In his diary, written in i800, he says under date June 20, "Wrote packet to Capt. .John Rutherfurd and enclosed Mr. Ashe's letters and accounts to him and Capt. W. G. Rutherfurd" (North Carolina Historical Commission MSS.), and we know that he and his son, John R. London, were still acting for them in 1814.

The first attempt made was to recover the negroes. In 1786, John, Jr., given power of attorney by his sister and brother, presented a memorial to the assembly of North Carolina, asking for the restoration of the negroes bequeathed them by their mother and Mrs. Corbin (N. C. State Records, XVIII, 178), which had been hired out by the sheriff of New Hanover county at a money wage. The committee to which this memorial was referred recommended that the rights of the petitioners be recognized and that the negroes be returned. The Senate and House of Commons concurred in this recommendation (ib., 186-187, 189, 417) and resolved, December 31, 1787, that the sheriff be required and directed "to restore to John Rutherfurd the negro slaves, the property of the said John Rutherfurd, William Gordon Rutherfurd, and Frances Menzies, widow, hired out by order of the court of said county, together with such monies and securities as he may have received for the said hire" (ib., 418). As the result of this resolution, the children were enabled to sell the negroes and did so at the first opportunity. George Mackenzie acted as agent, agreeing to find purchasers for them at 40 apiece before January, 1791. On March 12, 1788, John received 960 for his share and signed a release (Register's Office, Conveyances, I, old book, 8-9) and the next year, through John London as attorney, Fanny and William Gordon received 890 (ib., L, Pt. 1, 143. The number of negroes thus disposed of was fifty-seven. Though all the details of these transactions are not available, it is evident that the fifty-seven were only a part of those eventually recovered. In 1812 John London sold for John and William Gordon (Fanny being (lead) a third lot (seven) for $1480 and a fourth lot (twenty-three) for $4812 (ib., 0,368; P. 152). Thus as far as our record shows eighty-seven negroes were sold at an approximate return to the children of $15,500, without reckoning in anything that might have been received for negro hire.

The recovery of the arrears of Governor Johnston's salary, the most important part of his residuary estate, proved a much more difficult and litigious matter, and ended somewhat unexpectedly for the children. There were originally four beneficiaries under the residuary clause of Johnston's will: the wife, Frances, the children's mother, one-fifth; Samuel, the brother, two-fifths, for the education of his family; a sister, Elizabeth, and her heirs in Scotland, one-fifth; and a natural son, Henry, one-fifth. In the years since 1752 many changes had taken place. Frances, the wife, had married John Rutherford and died in 1768; the sister Elizabeth had married Robert Ferrier in Scotland, but, she dying, he became attorney for their daughters until he too died and the daughters acted for themselves; and Henry Johnston died in 1772 and left his share to Penelope, his half- sister, who later married John Dawson. More than io,000 had already been paid under the Treasury warrant of 1761, but of its distribution we know very little. We do know that Rutherfurd, acting in his wife's name (she was sole executrix of the will), received before her death a larger portion than she was entitled to, and that consequently soon after her death in 1768, Samuel Johnston, not liking Rutherfurd's management, obtained letters of administration, and not only secured for himself some part of the arrears, but was able also to remit to others a portion of that to which they were entitled. At the close of the Revolution the amount remaining to be paid was 2018.

Soon after 1783 application was made to the Treasury by the heirs in England for the payment of this remainder, but the Treasury officials refused to comply until the heirs could agree on a plan of distribution. To meet this requirement, in March, 1791, the Rutherfurd children and the Ferriers, father and daughters, through Alexander Anderson as attorney, entered into an agreement, according to which each was to follow up the matter, bearing individually his or her part of the expense and furnishing a statement of what each had already received. Anderson procured letters of administration (P. C. C, August 31, 1791) and with these documents in hand obtained from the Treasury the desired warrant, September 5, 1791. Having received the money, he carried out the terms of the agreement, investing i8o of the 2018 in three per cent consolidated bank annuities and stock and turning over the remainder to Robert Ferrier and W. G. Rutherfurd, representing their respective heirs. Ferrier died at this juncture, and his daughters, dissatisfied with Anderson's conduct in the case, employed another lawyer, secured new letters of administration, and in 1795, sued Anderson in the Court of Common Pleas at Westminster, Easter Term. Anderson in reply charged them with breaking the agreement and filed a bill in the Court of Exchequer. The object of these suits was to obtain control of the money invested in consols with the accruing dividends.

The situation now became so involved and threatened to be so expensive that the contestants agreed to submit the dispute to arbitration and selected two London merchants, Robert Barnewell and Henry Smith as arbitrators. Under the terms of the new agreement, each party was to pay all legal expenses hitherto incurred and to submit without demur to the decision of the board. All living within twenty miles of London were to be examined personally under oath and all living farther away were to make depositions on oath before a local justice of the peace. The examinations occupied two years. The arbitrators questioned the parties, investigated books, papers, vouchers, and other documents, scrutinized the accounts presented by the different persons, and endeavored to ascertain what each heir had already received. Captain William Gordon Rutherfurd seems to have conducted the business for his brother and sister, as between April, 1797, and February, 1799, he was absent from his ship on leave, a fact demonstrated by a complete lacuna in his correspondence with the Admiralty during that period. It was not until the latter date that with "his private affairs settled" he announced himself ready to join the Brunswick at Jamaica or to continue in any other way his naval service (Adm. 1:2400-2402. There is not a single letter from him in volume 2401).

The arbitrators finally rendered their award, July 10, 1798. All lawsuits were to be stayed; the Anderson estate (Anderson himself having died in the meantime) was to return to the heirs 57; and the amount in dispute, 180 in three per cent consols with 27 in dividends, was to be distributed to the heirs. But in this distribution the Rutherfurds were to have no share, for the arbitrators decided that Frances Rutherfurd, as executrix (through John Rutherfurd acting in her name), had already received 654 more than was her due and that the Rutherfurd heirs owed the Johnston estate that amount (less one-fifth on account of Henry Johnston). Consequently they were to receive nothing until the other heirs had been paid their shares in full. As four shares of 524 each would not exhaust the principal sum, it is possible, though very unlikely, that the children eventually received some small amount from this source.

There still remained to be recovered the real estate in North Carolina, consisting chiefly, if not entirely, of the "Hunthill" lands. These lands had been confiscated during the Revolution and a part had been regranted by patent from the state. We have not been able to discover any formal act or resolution restoring these lands to the children, as was the case with the negroes, or any court decision under the act of 1786 (N. C. State Records, XXIV, 795), but it is clear that in the case of the "Hunthill" property the decree of confiscation was in some way reversed. In 181 i one Israel Judge restored to John London, acting in the boys' behalf (Fanny being dead), a portion of "Hunt- hill," which he had obtained under a state title, for the nominal consideration of (Register's Office, Conveyances, P, 154) and in 1814 London sold to one Ezekiel Lane, for the sum of $2700, which he transmitted to the boys, this tract and other tracts making up the "Hunthill" property of 4084 acres, which had been bought by John Rutherfurd of Sampson Moseley in 1772, in trust for the children (lb., P. 1-16). In so doing London brought to an end a long period of service in the interest of the Rutherfurd family, during which he had been largely instrumental in recovering for the surviving members property that they were able to sell for nearly $20,000. The children's fight for their inheritance was long and costly and the persistence with which they pursued the struggle to the end deserves our admiration. Fanny did not live to see the final success, and the others, including Alexander Schaw, who had some share in the business, lived but a short time after the last transaction was completed. The shadow of this great expectation, long deferred and never more than in part fulfilled, hung over them for the greater part of their lives.

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