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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. |
