II. John Mercer’s Answers, c.20–26 April 1759
II
John Mercer’s Answers
[c.20–26 April 1759]
Answers to the foregoing Queries
To the first. All such Goods as may be liable to perish or be the worse for keeping are by Law directed to be sold by public Auction as soon as conveniently may be after the debts paid1—Yet I am of Opinion a Division may be made of the personal as well as the real Estate by the method hereafter mentioned. Mrs Washington has a clear right to one third of the Chattels of every kind whatsoever.2
To the sec⟨on⟩d of ⟨illegible est⟩ & best method to have Mrs Washington’s Dower assignd ⟨illegible⟩ Estate divided will be ⟨by a Bill in Chancery to be brought in your &⟩ Mrs Washingtons names against the Children upon which Commissioners will be appointed not only to set apart her Dower in the Lands but to divide the money & bonded Debts & every other part of the Estate, one third of which belongs to Mrs Washington3—And as I am satisfied your chief motive is to have the Children’s Shares set apart & ascertained, so that fair & regular Accounts may be kept of the Profits & all Disputes that might be occasioned by a joynt Occupation, avoided, so I am assured the Speaker who is appointed Guardian to prosecute & defend for the Children will agree to any Decision that may be for the Ease & advantage of all Persons concerned; and such a Division I am confident ⟨will⟩ readily be established by the Court.4
To the third. As it would be very inconvenient either to part with the furniture of the House or expose it to Sale in order to purchase it—I make no doubt but the Commissioners will assign you any part of the household furniture you desire at the appraised value & the remainder may be sold.
To the fourth. The Cattle must be kept on the Heirs Lands for his benefit & at his Risque. ⟨Except⟩ they are too numerous in which Case part of them may be sold. One third of the Cattle belongs to Mrs Washington & the Heir will be answerable to his Sister for one half of the appraised value of ⟨the oth⟩er two thirds. The ⟨real⟩ & the p⟨e⟩rsonal Estate that will not ⟨be for⟩ the ben⟨e⟩fit of the Estate to keep ⟨mutilated Spoild illegible⟩ maybe sold.
To the fifth. Mrs Washington is accountable for everything inventoried and appraised, but ought to have Credit for such things as have been used or worn out about the Plantations: An Account of which will be properly made up before the Commissioners.
To the sixth. I also am of Opinion that she must be at the whole Expence of housekeeping since the appraisement, but as she accounts for the Profits of her Children’s Estates, she is entitled to a liberal Allowance for their maintenance.5
To the seventh. Mrs Washington is by Law entitled to the Guardianship of her Children till they attain fourteen years of Age, when they may choose their own Guardians but it is by all means advisable that a division & settlement be made before you undertake the Guardianship in her right. When that is done you must undertake it, or some other Guardian must be appointed, as the Speaker will have nothing to do with their Estates.6
To the Eighth. As Dunbar’s Claim is against Genl Parkes Estate that alone is liable, consequently no other Part of mrs Washingtons Dower than what she holds of that Estate can be affected by Dunbar’s Recovery.
To the ninth. So none of the money or Chattels you receive can be liable—Should the Court adjudge Parke’s Lands & Negroes to be so. I am of Opinion they will adju⟨dge⟩ that Mrs Washingtons ⟨dower⟩ of that Estate should contribute in proportion to her Interest there⟨in⟩ which is only for Life.7
J. Mercer
ADS, ViHi: Custis Papers. Mercer wrote his answers on the reverse side of the sheets on which GW wrote his queries (doc. I).
1. Mercer was paraphrasing Article 26 of the Virginia statute entitled “An Act directing the manner of granting probats of Wills, and Administration of Intestates Estates” (5 454–67). Items from the estate were sold for its benefit on more than one occasion (see docs. III-A–3 and III-A–5 and appendices B and E).
2. See Article I of “An Act for the distribution of Intestates estates” (5 444–48).
3. When Daniel Parke Custis died intestate in 1757, Martha Custis as his widow was entitled, once his debts were paid, (1) to inherit outright one-third of “the goods, chattels, and personal estate, other than slaves”; (2) “to be endowed of one full and equal third part of all her husbands lands, tenements and other real estate, in manner as is directed and prescribed by the laws and constitution of the kingdom of England”; and (3) to “have one full and equal third part of all his slaves . . . assigned to her . . . [to] hold such slave and slaves, and all their increase during her natural life” (ibid.). At her death the dower lands and slaves were to return to Daniel Parke Custis’s heir, or heirs, at law. The dower land and slaves, which in April 1759 were yet to be assigned to Martha (and hence to come into GW’s possession), are listed in doc. III-A.
4. Each of the heirs, Martha (GW, in fact) and her two children, was to be credited with one-third of the total value of the estate, minus lands, in the individual accounts (docs. III-C–1, III-C–2, and III-C–3) prepared for the court-appointed commissioners (see doc. III). John Mercer had these and other estate accounts in hand for the following October session of the General Court.
5. For reference to the handling of the goods and other personal property of the Custis estate, see doc. I, n.3.
7. See note 5, ibid. It perhaps was these legal complexities that inspired GW to purchase a copy of Mercer’s Abridgement of the Virginia statutes when he returned to Williamsburg in the fall of 1759 (, folio 62). Mercer later allocated law charges in the Dunbar suit, two-thirds to John Parke Custis and one-sixth each to Martha Parke Custis and the dower estate. See Guardian Account Book, 1763.