Benjamin Schenckingh et al v. Job Howes and Hugh Grange, Executors of Elizabeth Schenckingh, 1 Rec. Co. Ch. (S.C.) 82

To the Right Honourable Sir Nathaniell Johnson Knight Governor etca and to the rest of the true and absolute Lords and Proprietors Deputies being the Court of Chancery for this Province. Humbly Complaining Sheweth unto your Honours your Orator and Oratrices Capt.

Benjamin Schenckingh, William Smith Esq. and Elizabeth his wife, William Elliott Planter and Catherine his wife, and John Emperor Mariner and Amarintia his Wife, all of Berckly County in this said Province, which said Benjamen, Elizabeth, Catherine, and Amarintia were the son and Daughters of Bernard Schenckingh formerly of the said County and Province Esq.

Deceased: That the said Bernard in his life time wás possessed of a very considerable personall Estate, consisting of Negroes, Horses, Sheep, Cattle, Household stuff, Plate, ready mony and of Divers other things of Vallue, and died Possessed of the same in this province Intestate, leaveing your Orator Benjamen, Elizabeth, Catherine, Amarintia and his daughter Hannah since Hannah Grange all which he had by a former Venter, as also one Son named Bernard whome he had by Elizabeth Schencking his late Wife, to, in and among whome the rite Title Interest Property Claime and Demand of and in the said Personall Estate Goods and Chattells whatsoever of the said Bernard the Elder att the time of his Decease Deceace became Vested and did properly Belong.

Upon and immediately after whose death and he the said Bernard haveing made no disposition in his life time the Administration of his said Personall Estate was Granted by Phillip Ludwell Esq.

Governour etca unto the said Elizabeth Schenckingh Widdow and relict of the said Bernard, as by Letters of Administration appears; which said Elizabeth takeing into her Custody and Management the said deceased’s Estate, Paid and Discharged whatt Debts were due from the said Bernard and haveing done all other Matters and things as an Administratrix by Law ought to do as makeing hieing and Ex-hibbitting an Inventory and appraisement of the said deceaseds Estate into the Secretaryes office in this Province att Length tooke Care that the surplusage of Goods etca should be shared and Distributed according to Law to and Amongst the Children of the said Deceased (Vizt) (Haveing first Deducted her Wid-dow’s Share) one Sixth Part, to your Orator Benjamen aforesaid and so one Sixth Part apeice to and amongst Your Oratrices Elizabeth Catherine and Amarintia aforesaid and reserved Likewise in her hands one Sixth Part which was the share or Dividend of the said Hannah and one Sixth part which was the share or Dividend of the said Bernard the Younger, Son of the said Elizabeth as aforesaid.

And that the said Personall Estate of the said Bernards amounted to the Súm of two thousand pounds or thereabouts.

So that Every of the Sons and daughters of the said Deceased had or ought to have for their Severall and respective Shares and Dividends the Sum of Two hundred and thirty five pounds Currency or thereabouts And your said Orators and Ora-trices further shew your Honours that some time after the Decease of the said Bernard and after the Distribution made by the said Elizabeth to and amongst the Children of the said Bernard as aforesaid (Vizt) sometime in the month of February in the year of our Lord one Thousand Seven Hundred and Four the said Bernard son of the said Bernard by Elizabeth his said Wife died in this Province Likewise Intestate, no Disposition of his part or portion of his said Father’s Estate being by him made but the same was still Resting and remaining in the Hands Possession and Keeping of the said Elizabeth Schenkingh, the administration Likewise of the said Estate of the said Bernard the Younger being to her Committed as by the same appears; by force and Virtue whereof and no Otherwise, the said Elizabeth Kept the possession and Management of the said Bernards Estate and Dividend and Share which he had of his aforesaid father’s Estate and therewith Acted and did as she thought Fitt Now so it is may itt pleas your Honours that in a few Months after the death of the said Bernard the Younger your Orator and Oratrices aforesaid well knowing or being well Advised that what part of the Estate of the said Bernard the Younger which belonged to him att his Death and which Came to the Hands of the said Elizabeth as aforesaid did of right belong to them as being next of Kin to the said Deceased Barnard he dying an Infant and unmarried leaveing Only your Orator and Oratrices and the said Hannah Brother and Sisters of the half Blood who were his next of Kindred in Equall Degree, they Your said Orators and Oratrices or some of them have severall times demanded to be paid by the said Elizabeth their respective shares and Dividends of the said Bernards Estate and findeing she could not be prevaled upon to Comply with their reasonable Just and fair request and Pretentions by their Civill obligeing and re-spectfull Carriage and Deportment they or some of them att Length Assured her that they would Certainly have recourse to the Law to recover their right, and that she might Certainly depend to hear more of that Affair in a Court of Judicature.

Whether she was afraid of the Justice of Orators and Oratrices Pretentions, or whether she was then unwilling to part with so Considerable a Sum of Money which she had no Rights to detaine she would some times tell your Orators and Oratrices or some of them that she beleived she had butt a Little time to Live, therefore desired them that they would forbear giveing her any Trouble as Long as she Lived, and that they might Possitively Beleive her, that she would take such Care in and by her Last will and Testament to make Good the said Bernard’s Estate to them respectively and add some thing to the same for their Civillity and forbearance Your Orators and Oratrices haveing had no Great Experience of her Veracity, Used to acquaint her Her that the Longer she Kept their Right from them the more Intrest she must Expect to pay when they received itt, and therefore Pressed and frequently urg’d her to the Payment and Distribution of the Estate aforesaid And your orators and Oratrices further shew your Honours that some times in the month of March Last past the said Elizabeth dies in this Province without makeing any Distribution of the said Bernard’s Estate to and amongst your Orators and Oratrices as by Law she ought, but instead thereof Makes and puts her Last will and Testament in Writeing and Thinking Veryly to Defraud and Deceive your Orators and Oratrices of their Just due and of their respective shares Dividends and Demands: which they might make to the Estate of the said Bernard amongst Other things in the said Will Contained, Gives Devises and Bequeaths unto your Orator Capt.

Benjamin Schenkingh, and to your Ora-trices Elizabeth Smith, Catherine Elliott and Amarentia Emperor and to Mrs.

Hannah Grange one hundred pounds to be equally divided amongst them Provided they and every of them before the Payment of the said Sum of one hundred pounds do Acquitt Release and discharge my Executors from all and all manner of Actions Suits, Reckonings Debts and Demands whatsoever which they or either of them may pretend to have or Demand against me or any part of my Estate of which I dy possessed of, and for any other matter cause or thing whatsoever and not otherwise Hopeing thereby that the Prospect of receiveing the said Triviall Legacy would be satisfactory enough to your Orators and Oratrices and they thereby encouraged to receive thatt and be discouraged from Suing or Contending for their Their Just Right And Your Orators and Oratrisses shew your Honours that she the said Elizabeth in and by her last Will and Testament made Constituted and Appointed Mr.

Job Howes and Mr.

Hugh Grange Executors of her said last will, which they and Either of them Proved and tooke upon them the Burthen of the Execution thereof, by force and Virtue of which said Will they the said Job Hows and Hugh Grange took into their Custody care and Management the Estate of the said Bernard indiscriminately with the Estate of the said Elizabeth and therein and therewith act and do according to their own Wills and Pleasures and the said Hugh Grange and Job Hows or one of them who have in their hands the Estate of the said Bernard as aforesaid being Demanded by your aforesaid Orators and Oratrices or some of them to deliver and pay to them the Severall Sums of Money which belong to them in their sole and respective Rights as aforesaid Sometimes Informe your Orators and Oratrisses or some of them that they know not of any Estate the said Bernard had, and that if he had any they have nothing to do with it since his Mother and their testatrix Adminis-tred upon the Same Estate at Other times declareing and Giveing out in Speeches that the Estate of the said Bernard is Nothing Worth and that your Orators and Oratricess had better take the Legacy left them by the said Elizabeth and be quiett according to the Condition of the Legacy whereas in truth the Estate of the said Bernard Will be abundantly more Considerable to them tho they hope att the same time they shall be never the further off from the the Kind Bequest of the said Elizabeth Forasmuch therefore as the Estate of the said Bernard is hard to be discovered and distinguished from the Estate of the said Elizabeth or the Vallue thereof Justly known and found out without the Oaths of the said Job Hows and Hugh Grange who well know all and Singular the Premisses, and for as much as when the said Estate is discovered and Found out as aforesaid the distribution thereof according to the directions of the Law lies properly before your Honours, and reflects Naturally within your Honours Jurisdiction and the Jurisdiction of this Court, there being to be found no releife for them in and Concerning the Premisses at the Common Law Your Orators and Oratrices Witnesses who Could make Proof of the Vallue of the Estate of the said Bernard and of Other things relateing to the same being dead or remote in Other Parts so that they Can have no Benefitt of their Testamonies To the end therefore that the said Job Hows and Hugh Grange may true answer make to all and Singular the Premisses as fully and Perticularly as if the same were here againe Repeated and Interrogated and to the End Further that after a true and Full discovery of the Estate of the said Bernard and the Vallue thereof your Orators and Oratrices may have a fair Just and Equall Distribution of their Severall Interests in the said Estate made to diem (Saveing always the right of the said Hannah to her part of the said Estate) And that the said Job Howes and Hugh Grange and Either of them may upon their Corporall Oaths sett Forth Discover and Disclose whether they or one of them did not know or whether they Have not heared the said Elizabeth in her life time say and Declare' that she Had in her hands and Keeping or in the Hands and Keeping of some Other Person, or Persons by her Privity Consent or Procurement that part share Portion or dividend which belonged to the said Bernard the Younger according to the Divission and Distribution which was made and Agreed upon by the said Elizabeth Schenkingh after the Decease of her Husband Bernard Schenking Whether they or one of them do not know of their own knowledge or have heard your Orators and Oratrisses or some or one of them make frequent Demands of the said Elizabeth Schenkingh of the said Estate of the said Bernards out of her hands and Whether she has not dezired their forbearance in that matter and that she would take an Ocasión to make them amends and satisfaction Att one time or another, or what Other answer or answers has she the said Elizabeth made to such demands in their hearing or to their knowledge, whether the share or dividend which belonged to the said Bernard and is now belonging to Your- Orators and Oratrisses (saveing the right of the said Hannah aforesaid Did not amount to the Sum of Two Hundred and thirty five pounds Current money Or how much [torn] to, whether they have not heard the said Elizabeth say att any time or times that she Expeccted to pay your Orators and Oratricess what did belong to them as Bernards Estate or what other words or discorse relating to thatt Matter Have they att any time hear’d from her Whether they or any of them have not hear’d her say that she beleiv’d her Executors must or ought to pay it att Last, whether they or one of them have not the Estate which was the said Bernards now in their or one of their Hands and Possession or what other Hands or Possession is the same in to their Knowledge or by Whose procurement And that your Orators and Oratrisses upon a full and particular Discovery being made of and in all and Singular the Premisses may be admitted to Come in for the Distribution of the said Bernards Estate according to the Statute made in the Kingdom of England in the 22d and 23 years of the reign of Our late Gracious Sovereign King Charles the 2nd Capt. 10 Entitled an Actt for the better Settling of Intestates Estates And now and att the Death of the said Bernard in force in this Province or upon any Other Law statute or Custom whatsoever And that by Deere of this Court the said Job Hows and Hugh Grange may be Ordered and Compelled to be answerable for the said Estate to your Orators and Oratrisses (saveing the right of the said Hannah to-geather with the Full and Lawfull Intrest for the time of the Detainer and the Use of the same by the said Elizabeth in her life time since your Orators and Oratrisses are next of Kin and in equall Degree and are become Intitled for the Surplus (after Just Charges Deducted and Saveing the right of the said Hannah to her part) And that a full Distribution and Divission of the same may be made by this Honourable Court to and amongst your Orators and Oratricess according to Law May it Pleas your Honours to grant unto your Orators and Oratricess your Writt or writts of Subpoena Issuing out of this Honorable Court to be Directed to the said Job Howes and Hugh Grange Executors as aforesaid thereby Commanding them att a Certain day and under a Certain Pain therein to be limitted personally to be and appear before Your Honors in this Honorable Court then and there to answer all and Singular the Premisses and further to stand to and abide such Order rule and Decree as Your Honours Shall think Agreable to Equity and Good Conscience and Proper for Your Orators and Oratrisses releif in the Premisses and Your Orators and Oratrisses Shall Ever Pray etca.

Wigington pro Complainant The Demurrer of Job Hows, Esq. and Hugh Grange, Gentlemen, Executors of the last Will and Testament of Elizabeth schenking, Widdow, late Relict and Administrator of Bernard Schenking formerly of Berkley County in the Province of South Carolina, Esq. Deceased, Defendants to the Bill of Complaint of Capt.

Benjamen Schenking William Smith, Esq. and Elizabeth his wife Wife William Elliott Planter and Catherine His Wife and John Emperor mariner and Amarintia His Wife Complainants: The said Defendants by protestation not Confessing or Acknowledging all or any the matters or things in the said Bill of Complaint Contained to be true in such Manner and forme as the same are therein and thereby set forth and alledged save only that the said Elizabeth Schenking did as is set forth in the said Bill but not with fraud and Deceit as therein is falsly Sugjested make her Last Will and Testament in Writeing and therein amongst Other things did Give Devise and Bequeath such Legacy of one Hundred Pounds unto the said Complainants Captain Benjamen Schenking Elizabeth Smith Catherine Elliott and Amarintia Emperor and To Hannah Grange Wife of this Defendant Hugh Grange under Such Proviso as in the said Will is Contained and that she made these Defendants Executors thereof and have not Only Declared as the Complainants have set forth that the Complainants had better Take the Legacy left them by the said Elizabeth and be Quiett according To the Condition of the Legacy but Have Tendered To the Complainants what amounts to their shares which they have refused To Receive For Answer thereunto do say that the said Bill of Complaint and the Matters and things therein Contained are so Incertaine and Insufficient in the Law that these Defendants are not bound by the Law To make any answer att all thereunto and namely and perticularly for the Causes following First for that the Complainants in their said Bill demand distribution of the Estate of the said Bernard in the Complainants Bill named according To the statute made in the Kingdom of England in the Twenty Second and Twenty third years of the reign of our Late Gracious Sovereign King Charles the Second

Chapter the Tenth, Entitled

an act for the better Settleing of Intestate Estates and now and att the death of the said Bernard in force in this Province as they alledge act upon any other Law Statute or Custom Whatsoever which Demand being in the disjunctive is so uncertaine that No answer Can be made thereunto Secondly the matter of the said Bill is Insufficient In Law for that the Complainants in their Bill Demand Distribution as next of Kinn to the said Bernard whereas by their own shewing they were not next of Kinn att the time of the Decease of the said Bernard Thirdly the matter of the Complainants Bill is Insufficient in Law for that in this Province no such distribution as is Demanded by the said Complainants is Compellable to be made by the said statute of Twenty Second and Twenty Third of Charles The Second

Chapter the Twenth in the Complainants Bill mentioned or by any other Law.

Statute or Custom Whatsoever Fourthly the said Bill is Insufficient in Law for the Insensibillity and Repugnancy thereof for the Death of Barnard is Laid in the Complainants Bill To be in the Year One Thousand Seven Hundred and four, which is after the filing of the Complainants Bill For all which Causes and many other Insufficiencyes and Imperfections appearing in the said Complainants Bill These Defendants by and under the favor of this Honorable Court Do Demur in Law unto and upon the said Bill of Complaint and therein do Humbly Demand the Judgment of this Honorable Court, all which matters and things these Defendants are ' and will be Ready To aver maintaine and prove as this Honorable Court shall award and pray to he Hence dismissed with their Reasonable Costs and Charges in this Behalf most Wrongfully Sustained.

Tho: Barrow for the Defendants A true Copy Examined the 15th March 1704 [1705] pro Jon Barnwell Depty secry [Endorsed: “Howes ads Schenking William Elliott 1704 Thos Barrow Demurrer on the Statute of Distribution.” Also second copy of Barrow’s demurrer, endorsed: “Howes et al avs Schenking et al Demurrer Filed March the 14 1704” (1705).

Also a demurrer signed “Evans pro Deft,” which formally tenders the complainants Four score pounds currency after deducting the legacy of Hannah Grange, provided they comply with the conditions of the will.] Sir Nathaniel Johnson (c 1645-1713), from Kibblesworth, England, soldier, former member of the British Parliament and ex-governor of the Leeward Islands, came to Carolina in 1685, settled his plantation Silk Hope, and served as governor 1703-1709.

He is remembered for his experiments in silk culture, the establishment of the Church of England in South Carolina, and his defense of the province against the French and Spaniards. See Dictionary of American Biography.

Major George Evans, clerk o£ Council in 1704, deputy secretary and deputy register of the province in 1707, and attorney general in 1707, 1710-1716, is said to have been one of the seven only lawyers in the province during proprietary rule (Miscellaneous Records, 1694-1704, Probate Court, Charleston, p. 426; Commissions and Instructions, pp. 190, 250: Edward McCrady; South Carolina under the Royal Government, iyig-iyjó, 1899, p. 459).