Will of Simon Foscue, Sr. 1819

NC SUPREME COURT CASE #1343 – FOSCUE vs FOSCUE – 1819 – Jones County.

Will of Simon Foscue, Sr. Found at NC Archives.

NOTE: It appears there may be several legal actions within this one case.

Superior Court, Jones County – Sept 1819

Feb. 1819 – Elizabeth Foscue, Stephen Foscue, an infant by his next friend Lewis Foscue, Susan Foscue by her guardian Lewis Foscue, John R. Donnell their attorney bring a Bill of Complaint against Simon Foscue exec of Simon Foscue, dec and Ann Foscue executrix of said Simon Foscue, dec.

About Nov 1814, Simon Foscue Senr of Jones County departed this life leaving a last Will and Testament which was proven Nov Term 1814. Named executors were Stephen Foscue, Simon Foscue Jr, sons and Ann Foscue the widow. Simon Foscue Jr along qualified and became executor.  Simon Sr. bequeathed as follows “It is my will and desire that my executor herein after named should dispose of all the residue of my property which together with what money I have due me shall be applied after paying off all my just debts to the education of my children and should there be any remaining, I wish it divided equally between my four youngest children”

And your petitioners state the dec had the following children in the order of seniority – Frederick, Simon, Dorcas, Lewis, Sally, Elizabeth, Stephen, Susan and Amos Foscue yet an infant whose guardian is said Simon Foscue, Jr. The four youngest are Elizabeth, Stephen, Susan and Amos. Elizabeth is now between 21 & 22 years old, Stephen between 19 & 20 years old, Susan between 16 & 17 years old and Amos about 12. The executor, Simon Foscue, still retains a large residue of the estate which belongs to the 4 youngest children amounting to about $5,000.  Part of the residue applied to the education of the petitioners but we have been left a small amount of property and dependant on the generosity of friends for the limited education of a few months.

The exec refused to pay for education or turn over the residue saying the entire residue was applied to debts and other legacies and at other times said he had claims against the estate. The petitioners wish a full accounting and amount of debt due to the testator and what the residue is

Answer of Simon – May Term 1817

Simon agreed he was the exec. And also who the 4 youngest were and stated he was the guardian of Amos and they are entitled to, at some point, some amount and that he retains the residue worth about $5,000.  But he also stated the sum of $413.87 has been spent on account but none has been spent on education – it is not true the petitioners have lived off friends. He has not refused to turn over the residue because it has not been requested – he has turned over to Lewis Foscue who petitions in the name of the petitioners the residue which has not been applied to debts – he has discharged the trust placed in him. He states that Elizabeth was past the age of education of girls at the death of the testator and the defendant has afforded her every aid for schooling, but her father considered her education finished at his death. The petitioner Stephen was left his own guardian and was less disposed to receive any education. Susan was under the guardianship of Lewis Foscue.

Sum of the residue was too large for education and the testator did not intend it be divided into equal portions but proportions as age, sex, capacity and advancement in learning at the discretion of the executor – defendant states he is bound to keep the residue in his hands for the education of Amos – he states the petitioners have no right to call his hand unto Amos is of age. The local court agreed that some payment should be paid out at least to Elizabeth and Stephen but not all of it. They did find the residue at $480.93 and 1/4 was $70.23/ 1/4 should be paid to Lewis Foscue for Susan and Simon Foscue to keep the final 1/4 for the education of Amos.

Simon Foscue, Fred. Becton, and James Harrison were bound to Lewis Foscue, George Oldsfield and wife Sally for $300.00 in 1828.  Superior Court, Carteret Co – Fall Term 1824 – came Simon Foscue by his attorney Edward Graham for his writ against Lewis Foscue – he to render a Negro man Tom of the value of $700 who was unjustly detained to the damage of $500. Lewis Foscue was a defendant and his attorney was John H. Bryan – Lewis asked for a change of place of court and it was moved to Carteret County – Lewis won’t admit Tom was the property of Simon Foscue. Slave belonged to Simon Foscue, Senr who died in possession of said slave – the Will bequeathed the slave to his son Stephen – Simon said the slave was his under the deed of April 1809 from his father – Plaintiff contends there can’t be a life estate in chattles and Simon Foscue Senr owned Tom when he died – the judgement gave to the plaintiff and the case was appealed to the NC Supreme Court

Indenture – 20 April 1809 – Simon Foscue Senr of Jones County to Lewis Foscue and Sally Foscue, daughter of said Simon – for natural love and affection – lands and negros – unto Lewis 2 negros named Martin and Tom and 1/2 of the tract where I live which is the upper tract reserving to my wife Betty for her natural life, the Dower rights – to Sarah I give 4 negroes – Nerow, Charles, Peter and Lucy – all after my death

NOTE: There are a large number of receipts in the folder. There is also an account of the estate of Simon Sr and accounts for Betsy and Stephen.

Petition of John E. Foscue of Jones County – he was the exec of Simon dec – the late Simon Foscue at May Term in 1830 of the Craven Court obtained a judgement against Robert V. Orme for $718.10 of which $600.40 was principal and bears interest until paid. One of the petitioners was Elizabeth Foscue and one was George Oldsfield, husband of Susan (sic) – – Orme is insolvent and couldn’t pay the judgement – Stephen Foscue another petitioner is dec but before his death he released the said Simon of his share in the suit.8 June 1831 – signed John E. Foscue

Elizabeth Foscue vs Foscue’s Executor and Dorcas Foscue – John E. Foscue was the exec and Hardy Bryan was the guardian of Dorcas Foscue a lunaticThe plaintiff states her father made a Will and bequeathed her the slave (not named); the executor refused to turn over the slave pretending the testator had made a Deed of Gift of the said slave to Dorcas Foscue then under the executors guardianship; Elizabeth wished to have the slave June 7, 1838.  John E. Foscue was the executor of Simon Foscue dec who was the executor of Simon Foscue Sr, dec – Simon Sr. in his Will gave Elizabeth a slave named Norris – Elizabeth requested her legacy after 2 years and her brother promised the legacy upon a certain event happening which did happen but he then refused to provide the legacy alleging that before Simon Sr died he conveyed by deed of gift the sd slave to Dorcas Foscue who is a person of infirm mind and Simon Jr was her guardian –

Elizabeth sued in Court Fall Term 1826 for her legacy and she won but the judge set the verdict aside and granted a new trial in a different County – the trial was not held and the defendant died in 183—leaving a Will – the slave went in the possession of John E. Foscue and now into the possession of Hardy Bryan – when Simon Sr made the deed the slave Norris was young but small and now is very valuable and hired out.

The defendants deny everything – their attorneys were Jno H. Bryan and W. C. Stanly.

George Oldfield was the Adm of Stephen Foscue

DEPOSITIONS

1. 8 Feb 1826 – Nancy Foscue – wife of Simon Foscue dec – she kept notes of Simon and there were two notes – one on son Simon, his son and one on Fred, his other son – should could not read the notes but from what her husband said, Simon Sr could not have owned more than $400 to $500 – signed by mark – taken at the house of Nancy Foscue and

Henry Shute

2. 8 Feb 1826 – Henry Shute – lived with the family for a month or two before the death of Simon Sr – said Simon expected to die and talked several times about his business and how he intended to leave his estate – he had brought of Benjamin Brochet a piece of land for $1000 – $200 of which was paid and Brochett had his note for $800 and that note was in the hands of Frederick Foscue and though not due, Fred was dunning him for a payment on it by a note which he the decd held on  his son Simon for about $400 – Simon Sr did not care to do this – signed name

3. Frederick Foscue – held a note payable to Benjamin Brochet for $800 – agreed to take the note on Simon Jr for $400 negotiable at the Bank

4. John N. Stephenson – stated he lived with old Mr. Foscue from June 1814 to his death the follow Nov.

Inventory of Simon Foscue, Sr.

List of usual farm animals, notes, household goods etc

List of Slaves

Anthony aged 20

Joe 15

Gilbo 15

Jack 12

Dick 12

Moses 11

York 8

Will 6

Melton 65

Woman Lettie 55

Girl Jude 13

Jenny 2

Violet 60

Other slaves listed in the will but their ages not given

Among the other items in the estate of interest were – 12 horses, 65 cattle, 2 yoke oxen, 2 carts, 1 pair of old wheels, 41 head sheep, riding chair, 9 beds and furniture, 2 mahogany dining room tables, 1 maple and 1 pine table, 1 dozen windsor chairs, 7 hogs, 9 sows, 52 geese, corn etc

Buying from the estate: Simon Jr, John Baines, James R. Bryan, Edward Mumford, Peter Andrew,  Robert Kornegay, Gray M. Gordon, John McDaniel, Hesekiah Merritt, Wm. H. Conner, Augustus Foscue, Isaac Kornegay, Thos. Lewis, James Oliver, Risdon McDaniel, Amos Amyet, Lewis Whitby, Needham Simmons, Lemuel Hatch, Adam Andrews, Enock Amyet, James Merritt, Jno. Green, Thos Lee, Ed Hatch, Jno Nichols, Thos. Murphy, Levi Moore, Asa Hatch, Josh Smith, John Davis, Stephen Foscue, Nancy Foscue, Sally Foscue, Enoch Foy, Clement Davis, Richard Crutchfield

Negroes sold on Dec 13 & 14

Lettice and her three children to Enoch Foy

Boy Duke to Wm. H. Conner

Girl Jude to Sally Foscue

Man Anthony to S. Foscue