I. Queries to John Mercer, 20 April 1759
I
Queries to John Mercer
Williamsburg 20. April 175⟨9⟩
Sir,
Be pleased on the other side to answer the following queries in a full and ample manner and oblige very much, Yr most Obedt Servt1
Go: ⟨Washington⟩
First—Does the Law require that all the Personal Estate (Negros only excepted) of the late Colo. Custis be sold, in order to lay of[f] his Widows dower and daughter’s part. or can it be done by the Inventory & appraisment—or lastly by dividing the Estate as it stands at this present—Which of these three is the Right Method? & has Mrs Washington a ⟨C⟩laim to one third of the Chattels of every kind whatsoever?
Second—What Steps are necessary to Effect this in either Case? & how is the Money and Bonded Debts to be divided?2
Third—Has Mrs Washington a Right to take any part of the Furniture or Personal Estate (negroes excepted as before) at the Appraisment price? or is she under a necessity of taking the whole or none?
Fourth—Whether if the Law does not require the whole Personal Estate to be sold, I have notwithstanding a power, or can obtain one (& by what means) to sell such parts as I ⟨consider⟩ to be for the Estate Interest?
Fifth—Is Mrs Washington obligated to render ⟨an Acco⟩unt of every thing Inventoried & appraised? I mean Household goods that perhaps are broke or worn out, Plantation Utensils that are lost or used—Liquors &ca that may have ⟨bee⟩n Drank—and if She is what sort of an Acct is requird by Law? and whether that account shoud be previous to a Division of the ⟨Estate?⟩
Sixth—Has she not a Right to have her Expences of every kind borne, as well those which may Relate to her particular self, as to House keeping &ca in general? Does that Right still continue till a Division be made, or did it cease upon her Marriage[?]3
Seventh—Whether is it necessary to get appointed Guardian, and Manager of ⟨the⟩ Estate & ⟨of the⟩ Children—or do I become so as Husband ⟨to her illegible⟩ obtaind the administration? But ⟨mutilated⟩ that some ⟨one other than myself⟩ shoud be choose Guardian till a Division ⟨of⟩ the Estate & a Settlement be made.4
Eighth—If Dunbar obtains his Suit at Law against Colo. Custis’s Estate, how far will Mrs Washington’s Dower be liable?5
Ninth—If the Money and Chattels which in any other Case ⟨woud⟩ have become my absolute property, shoud be made liable—am I accountable for the Principal & Interest, of what I may now receive—or the Principal only?
ADS, ViHi: Custis Papers.
John Mercer (1704–1768), of Stafford County, was a lawyer who since the early 1740s had been retained by the Custises, first by John Custis (1678–1749) and then by his son Daniel Parke Custis (1711–1757), to counsel them in the Dunbar case. See note 5. From 1757 he acted in the same capacity for Daniel Parke Custis’s widow, later GW’s wife, and for her two children. Mercer, who obtained a large loan from Martha Custis, served as GW’s attorney in the settlement of the Custis estate until shortly after the final settlement in 1761.
3. As Schedule A (doc. III-A) and most of the related documents (III-A–1 through III-A–8) demonstrate, GW and his wife claimed, used, disposed of, and accounted for goods from the estate in various ways. See also Mercer’s Answers, third through sixth (doc. II).
4. Upon Daniel Parke Custis’s death Martha Custis became the common-law guardian of her children and would remain so, unless another were appointed, until the children reached the age of 14. Talk of appointing a male guardian seems to have first come up in the fall of 1758 as a result of developments in the Dunbar case (see note 5). John Mercer wrote Martha Custis 11 Oct. 1758: “However as you seem’d determined in Case the Suit should be renewed to have some Gent. of Reputation & Fortune appointed Your Sons Guardian I enquired in a round about manner of the Speaker [John Robinson] if such a thing had ever been proposed to him, he said not, but added, that it would be to no manner of purpose as he would not upon any Account undertake it, as it would be attended with so much trouble as must necessarily accompany the management of so large an Estate (as your Son was intitled to) & at such a distance from him. As I observed that I apprehended you would be satisfied with his being appointed his Guardian for the management of his Law Suits, in which his Advice and Character might be of great benefit to the young Gentleman & that his Estate might be continued under the same management as at present, he said upon that Condition if you desired, he would very readily undertake the matter & do your Son all the Service he could either by his advice or Interest. This, Madam, I thought proper to advise you of, as you may thereby be better enabled to form your Resolution upon that head” (ViHi: Custis Papers). Then, on 2 Nov. 1758, two months before her marriage to GW, Mercer wrote Mrs. Custis: “I received all the Papers together with your Letter and should have awaited on the Speaker in two or three days after but I heard he was gone for a few days out of Town. On Saturday last I applied to him & he promised to be in Court that day but something prevented. however this Day he came to Court & was admitted not only your Sons but your Daughters Guardian to defend & prosecute such Suits as may be for their Interest, for it seems that not only your Son but yourself & Daughter will be Parties to the Suit of Dunbar here” (ibid.). In his response (doc. II), Mercer suggests to GW that his marriage to Mrs. Custis puts him in the position to assume the guardianship “in her right,” but he advises him to delay doing so until after the estate was divided and finally settled. GW seems to have taken his advice, for it was not until 21 Oct. 1761 at the time of the final settlement of the estate that the General Court appointed GW guardian of the two children, in place of John Robinson (Order of the General Court, ViLxW: Washington’s Account Book). For GW’s decision in April 1759 to secure an order from the General Court giving him the administration of the children’s property, see Editorial Note, 20 April 1759–5 Nov. 1761, n.6. GW remained the manager of the property of the two young Custises until 1773, when Patsy died and Jacky was preparing to marry, rendering each year annual accounts of the credits and debits of their estates for the preceding year.
5. At this time the Custis estate again was being threatened by the claims first brought against it as early as 1723 by one Thomas Dunbar, renamed Dunbar Parke, of Antigua. When Daniel Parke Custis’s grandfather Daniel Parke (b. 1669) was murdered in 1710 at Antigua where he was in residence as the British governor of the Leeward Islands, it was discovered that Parke had left his Antigua property valued at more than £30,000 to Lucy Chester, the young daughter of a Mrs. Catherine Chester of that place. The Antigua property was to pass to Lucy’s heirs provided that upon her marriage she and her husband changed their name to Parke. Under the terms of the will, Colonel Parke’s daughter Frances Parke Custis, the mother of Daniel Parke Custis, was to get her father’s Virginia and English property, out of which Parke’s legal debts, presumably in Virginia and England, were to be paid. Nearly fifteen years after Parke’s death, and long after Frances Custis herself had died, John Custis, Frances’s husband and Daniel Parke Custis’s father, received notice from Dunbar Parke, who had taken the name upon his marriage to Lucy Chester, that the Frances Parke Custis estate must reimburse him for up to £10,000 which had been paid out of his wife’s inheritance to settle Col. Daniel Parke’s Antiguan debts. The point at issue was whether Parke’s will required only that the Custises pay his Virginia and English debts or that they pay all of his debts, including those in Antigua. Lawyers on both sides remained active off and on from the mid–1720s. At the time of John Custis’s death in 1749 (Dunbar Parke died in 1734) the case still had not come to trial. Dunbar’s heirs renewed the suit in 1750. When the trial was finally held before the Virginia General Court in April 1754, it was dismissed. In July 1757 the Privy Council reversed the Virginia court’s decision, which meant that the case should go back to Virginia for retrial. It was upon word of this that Martha Custis suggested to John Mercer the appointment of a male guardian for her children (see note 4), and it was with the reopening of the case in mind that GW posed his eighth and ninth questions to John Mercer. For a masterly explanation of the ramifications of Daniel Parke’s mischievous will, see , 2:278ff.