Executor's Response to Petition of Anna Kingsley

Document on this page transcribed by Mark J. Fleszar, Georgia State University, April 2008.

The executors' response (Benjamin A. Putnam and Kingsley B. Gibbs) to the petition of Anna M. J. Kingsley, widow of Zephaniah Kingsley. September 5, 1846. (M87-20, Florida State Archives, Tallahassee)

Duval County Probate Court
Benj[amin]: A. Putnam & K[ingsley].
B[eatty]. Gibbs, Extrs: of
Zeph: Kingsley decd

ads:

Anna M. Kingsley
_______________
Answer to petition
_______________
Filed September 5th 1846

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In Duval Probate Court
County of Duval - State of Florida

In the matter of the Petition
of Anna M. Kingsley
vs:
Benjamin A. Putnam and Kingsley B. Gibbs Executors of the Estate
of Z. Kingsley dec’d:

These Respondents , Benjamin A. Putnam and Kingsley B. Gibbs, answering the Petition of the said Anna M. Kingsley filed against them in this court, admit that they are two of the Executors of the said Zeph Kingsley appointed by his Last Will & testament and that they have duly, qualified as such Executors and have taken upon themselves the administration, as executors aforesaid, of the estate of said Zeph. Kingsley dec’d: & that said Petitioner is one of the legatees named in the said Will of the said Zeph. Kingsley; and these respondents for this purpose as well as for such other purposes as may be necessary pray leave to refer to said last will & testament and to make the same a part of this their answer to said petition- These Respondents further answering say that said Zeph. Kingsley died on or about the thirteenth day of September in the year of our Lord eighteen hundred and forty three, and that your respondent Kingsley B. Gibbs qualified as executor of the said will on or about the twenty fifth of the same month and year, and your respondent Benjamin A. Putnam qual-

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-ified as Executor of the said will on or about the eleventh day of December of the same year; that mistaking the spring term of the County Court for the County of Duval they did not file any account of their administration in said Court in April 1844, but being under the impression that said Court was held in May instead of April these respondents did on the nineteenth day of March in the year of our Lord eighteen hundred and forty four at the City of Jacksonville in the said County of Duval, give due notice according to Law, in their apprehension of the Law, to all persons concerned in said Estate as heir, Legatees, devisees & creditors, that as executors as aforesaid they intended at the next term of the said County Court for Duval County to be holden (as they then apprehended) at Jacksonville in May then next ensuing, to present their accounts of their administration of said estate, with the vouchers, for a settlement thereof, as will appear by reference to Exhibit A herewith filed & prayed to be taken as a part of these respondents answer –that in pursuance of said notice the respondent K. B. Gibbs, did at the May term of said County Court for Duval County present the account of the administration of said Estate with the voucher for settlement to the Hon: Farquhar Bethune then Judge of the County Court for Duval County, who informed him that said account could not be settled at that term and must be presented for settle-ment at the April term next ensuing of said Court in eighteen hundred and forty five, but your respondents

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insist that in their apprehension of the Law they were not bound to make any settlement of their administration until April eighteen hundred & forty five, the court then held being, in their apprehension of the Law, the annual term, after their being qualified as Executors as aforesaid, the term of said County Court at which they were by Law required to render account of their administration of said estate, but if the respondents are wrong in their construction of the Law, yet they insist that they were not guilty of any wilful or intentional neglect in not rendering their said account at the April term of said County Court held in April 1844, and they rely on the reasons which they have already assigned as an excuse for their failure to do so. These respondents further say that after giving the notice required by Law for that purpose, they pre-sented the account of their administration of said estate with the vouchers to the County Court of Duval County at the session thereof in April 1845 and at said term of said Court, and at an adjoined term thereof in July of the same year said account was examined, settled and approved as will appear by reference to said account and the proceedings thereon had in said County Court, and the decree of said County Court on said account, now in this Court, and to all which the respondents pray leave to refer. These respondents admit that they did not file any account of their administration at the April term 1846 (if such term is now held by this Court) of this Court, but these respondents insist that it ought not to be charged to them as neglect if they did not do so.

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and they submit to this court the reason for their not having done so, and will rely on the same as sufficient to satisfy the Court that if they have committed an error they ought to be excused, and the reason they assign is that they saw published in the paper printed at Jacksonville, the following notice signed by the Hon: William F. Crabtree as Judge of the Probate Court of Duval County on the 27th of September 1845, which these respondents have extracted from said paper and here insert[:]

[newspaper clipping affixed]

Probate Court
THE office of the undersigned will be always open for the transaction of business within jurisdiction of his Court. All applications to him in his Judicial capacity, must be made either by petition or affidavit. On the first Monday in Oc-tober of every year, a regular Term of Court will be held for the settlement of accounts of Execu-tors, Administrators, Curaters, and Guardians. Those failing to render their accounts on that day will forfeit their commissions. W.F. Crabtree Judge of Probate of Duval County. Jacksonville, Sept. 27, 1845.’

[end of affixed clipping]

from which said notice the respondent believing that Your Honor had fixed upon the month of October of the month in which you had decided to hold a term of Court for the settlement of the accounts of Executors and ad-ministrators, and intending to prepare the account of their administration of said Estate to be presented to this Court in October next when they believed a term of said Court would be held for Pro-bate business, they omitted to take the necessary steps to present the said account until that time; but these respondents insist that if they have misapprehended your Honor in this respect and have given a wrong con-struction to the said notice so published as aforesaid in the Jacksonville paper they trust that this Court will see in the whole matter sufficient to excuse these respondents for not having filed the said accounts before & especially as no great length of time would elapse before the month

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of October when they intended to present the said account for a settlement thereof, to this Honorable Court. These re-spondents now in pursuance of the order and citation of this Honorable Court lately issued to them as Executors aforesaid respectfully submit the account of their admin-istration of said Estate, herewith filed and marked Exhibit B, and prayed to be taken as part of this their answer to said petition and amendment thereto of the said petition; and they also file with this answer documents marked Exhibit C, D, E, and F and pray that the same be taken also as part of this their answer, and to which they will hereafter refer in their answer as it may be necessary.

These respondents further say that Exhibit B is the account current of these respondents and will show the balance in money found due from them to the Estate on their Last settlement before the County Court of Duval County sitting as a Probate Court, and also the amount in value according to the inventory and appraisement of the personal property, other than money, then in the hands of the respondents as Executors as aforesaid; also, what sums of money have been received by them since and from what sources; also, what money have been expended by them since for the Estate and for what purposes, and the balance now due from them to the Estate. That Exhibit C will show what moneys have been loaned out by these respondents from time to time, the date of said loans, at what rate of interest the persons to whom loaned and the securities taken

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for the same & when payable, all which are in the possession of these respondents and are here ready to be exhibited if required. That Exhibit D will shew the amount of interest money these respondents have received on loans made by them from time to time and from whom receiv-ed. That Exhibit E is the account with San Jose plantation, and will shew the amount of monies they have received from the planting operations of said plantation and the amount of monies they have expen-ded on account of said planting operations. That Exhibit F will shew what number of the slaves contain-ed in the inventory and appraisement of the property of the Estate, the title to which is in dispute and which are claimed by George Kingsley and for which suit has been brought by him against these respondents as Executors aforesaid and which is still pending in the Circuit Court with their valuation according to the appraisement aforesaid: also, the number of said slaves for which suit was brought against them as Executors by the petitioner and for which she has recov-ered judgment in said Court, and which have gone into her possession, with their valuation according to said appraisement: also, the number of said slaves with their valuation according to said appraisement which have gone into the possession of John S. Sammis as agent and attorney of said George Kingsley: also, the number of said slaves not in dispute with their valuation according to said appraisement; which with the exception of those who have died since are now in

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the hands of these respondents as Executors aforesaid: also, the number of the last named slaves who have died since the said appraisement marked (D); and of these who are living of said slaves; these marked o appear to have been bequeathed to Chas: J. McNeill by the said testa-tor Z. Kingsley by his said will; said Exhibit F will also show the increase of said slaves since the appraisement & the number of said increases which have died; and also one female slave named Amelia who seems to have been omitted by the appraisers in their inventory and appraisement of the slave property of said Estate and who has not been appraised.

These respondents further answering say that they made the loans aforesaid upon such security as they deemed to be good and safe at the time, and are now, and which they believe to be as available as could be required; and it is true they did make such loans without the order and direction of this Court, not from any intention to disregard its authority or to act without its order and direction in all matters wherein the Law makes it necessary, but these respondents respectfully submit that in their opinion the Law did not require of them to apply to this court for its order and direction to make said loans and if there be any provisions in the Law which require this to be done in any cases, that such provision applies to a class of cases differing from the present – These respondents would not have made said Loans if the situation of the Estate would

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have permitted them to make distribution of said monies when the same was received by them; but a state of things arose afterwards which prevented them from doing so. In relation to said securities the respondents say that a large amount of said monies was loaned not only with the Knowledge and without any objection, but with the express approbation of one of the Counsel for said petitioner, and in some cases at his instance and the securities for said Loans were drawn up & prepared by him [in his own hand writing] [1] which will appear on reference thereto & which these respondents are ready to produce, if required.

These respondents admit that they have continued the planting operations of the said Zeph Kingsley since his death on his said plantation call San José, but that they have done so from necessity and because of the difficulties which prevented them from converting the property thereon into money and making distribution thereof among the respective Legatees; and these respondents believe that until these difficulties should be removed that to Keep the slaves of the Estate Together and employed in the planting operation on the plantation established by the testator himself and in operations at the time of his death was the safest course for them to pursue and best for the interests of those concerned in the Estate; and the respondents believe that in this determination they have not com-mitted an error, and that the Estate has sustained

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no loss by it as will appear by reference to Exhibit E. If the planting operations were to be contained on said plantation, then it became necessary to have an efficient and competent overseer to govern & manage between eighty and ninety slaves; and these respondents believe that the overseer employed by them is an efficient and competent person for that purpose, and is a skillful and successful planter; in addition to this he is the person whom the testator had employed himself as an overseer on said plantation & finding him there these respondents deemed the choice of the testator to be a safe guide for them and they have continued him as such overseer on said plantation since the death of said testator and have allowed him as compensation for his services four hundred dollars per annum which for a person of his qualifications as a planter and the services to be performed by him can scarcely be deemed unreasonable. He was allowed three hundred dollar by the testator who had at the same time another individual employed on another place of this called Drayton Isl[an]d as an overseer at three hundred dollars per annum, who was afterwards discontinued by the respondents, and the slaves there were removed to San Jose; and the present overseer of San Jose plantation had the superintendence charge & management of all the slaves of the Estate amounting in number to between eighty and ninety aforesaid. The respondents do not admit that the profit of the planting operation on said San Jose plantation have

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not been equal to the probable rent of the plantation and hire of the slaves since the death of the testator, but on the contrary they believe, and think it will so appear that they have exceeded said probable rent & hire. It is true that said planting operations are continued by the respondents and they have not asked the order of this court for that purpose, but it was because they have not deemed that it was required of them to do so, and consequently they did not suppose the Court would interfere in the matter.

These respondents further answering say that the petitioner is in error when she says that there was allowed to these respondents on the settlement of their last accounts a compensation of six per cent on the value of the personal estate of the testator in lieu of all commissions to be paid them in the administration of said Estate, as will fully appear by reference to the decree of the Court made on said settlement, to which these respondent pray leave to refer and to make a part of this their answer, if necessary.

These respondents further answering admit that they have not given any security for the faithful dis-charge of their duties as Executors as aforesaid; they are not aware of any Law that requires this of them, and there are no allegations in the petition of the petitioner which show to the Court the propriety and necessity for the exercise by this court of its power in this behalf in this case, if it possessed such power, which these respondents respectfully think it does not

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upon any case made out by the petitioner in her petition That neither of these respondents are insolvent or likely to be so; nor is their property encumbered in any way, and jointly it can probably be shown that they are worth more than the value of the said Estate; They are not aware that they have been guilty of waste on mismanagement of said Estate, nor is there any such charge in the petitioner[‘]s petition. They have en-deavored to manage said Estate carefully & usefully to all concerned and submit whether the facts and circumstances do not fully show this. When they made the several loans of monies aforesaid they were not only careful to obtain good and available securities for the same, but they also secured the payment of a higher rate of interest than the legal rate, but which is allowed by Law to be taken on special agreement—the Legal rate of interest was at the time six per cent and they have secured the payment of eight per cent on said Loans, and besides have relieved the Estate from any expense of collecting said loans if resort to Legal measures should become necessary by the requiring the borrower in almost every case to secure the estate against such expenses in the several securities taken by them as will appear by reference thereto. There is but a small amount of money not disposed of and not exceeding five hundred dollars, but kept for the neces-sary purposes of the Estate, in the hands of the re-spondent K. B. Gibbs.

These respondents further shew that they have

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endeavored to look to & promote the interest of the Estate in every matter in which such interest was involved. They have been using efforts to obtain the payment of the interest money allowed by the Judge of the Superior Court for East Florida in his award on the claim for Losses of the testator in 1812 & 13, and a petition for that purpose has been submitted to the Congress of the United States, and the Committee to which said petition was referred made a report thereon in August last, as will fully appear by reference to a copy of said report herewith filed as Exhibit G and prayed to be taken as a part of this their answer. These respondents answering the amendment filed by said petitioner to her petition requiring these respondents to show cause why they should not be required by the order of this court to make immediate distribution of the share on legacy claimed by the petition-er under the Will of the testator, say that the difficult-ties and obstacles which occurred after they assumed the administration of the Estate to prevent them from making distribution thereof among the several legatees have not been removed, but have been somewhat increased – Among the difficulties which have presented themselves to these respondents to prevent their making distribution, they will mention that the validity of the testator[‘]s will and their authority as Executors thereof was contested by one Martha McNeill & others who filed their petition in the County Court of Duval County on or about the 19th October 1844 praying

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the said Court to annul and set aside said Will and to revoke and cancel the letters testamentary granted thereon to these respondents, and praying an injunction against these respondents to prevent them from making distribution of said Estate, which was granted. All which will appear by reference to said petition and the proceedings thereon now in this Court and to which these respondents pray leave to refer, and if necessary, to make the same a part of this their answer. That said suit was instituted originally in the County Court, and afterwards transferred to this court & was pending there until sometime in February last when after argument this court pronoun-ced a decree against the petitioners, and dissolved the injunction against these respondents, and the respon-dents were informed that an Appeal was asked for by the counsel for the said petitioners from the said decree, & though they have also learned that no steps have been taken by the petitioner, to perfect said Appeal, yet by a decision which they have learned was made in another case by the Judge of the Superior Court for East Florida, they have been left in a perplexing doubt whether such appeal may not be taken within two years from the said decree, and if it could then whether the respondents could with safety make any distribution of said estate until such controversy have been finally disposed of – That in addition to this a suit was instituted against these respondents as Executors of the said Estate by the said petitioner in the said Superior Court on or about the 6th

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May 1845 for the recovery of ten of the Negroes which came into the possession of these respondents as Executors as aforesaid and were inventoried & appraised as the property of the said testator; which said suit was afterwards transferred to the Circuit Court and was pending therein until May or June last when the same was tried and by the verdict of the Jury and judgment of the Court thereon, the petitioner received nine out of the ten slaves sued for; all which will appear by the record and proceedings of said suit in said Circuit Court on reference thereto, and they pray leave to refer thereto and to make the same or such part thereof as may be necessary & proper, a part of this their answer; and they also show that George Kingsley also one of the legatees named in the Will instituted a suit in said Court on or about the 6th May 1845 against these respon-dents as Executors aforesaid for the recovery of about forty three of the said slaves and also a suit against the respondent K. B. Gibbs for the recovery of the said San Jose plantation, and the respondents were obliged to file a Bill on the Chancery side of said Court against the said George Kingsley for discover, relief & injunction, which said suits are now pending and undetermined in the said Circuit Court; all which will appear on reference to the records and proceedings in said suits in said Circuit Court and to which these respondents pray leave to refer and to make the same or such part thereof as may

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be necessary, a part of this their answer. These respondents also show that on or about the 19th of November 1846 one Mary Ann Fraser & Elizabeth Skelton calling themselves heirs, legatees and distributees of John Fraser by their attorney Samuel L. Bunitt Esq. exhibited to these respondents a claim against the Estate of said Zeph Kingsley in writing, which they herewith file as Exhibit H and pray to be taken as a part of their answer, which claim although by the exhibit it appears to be indefinite and uncertain, yet it is claimed by said attorney to amount to a very large sum of money, and which said claim is still pending and undisposed of- These respondents also show that they have received from one Philip R. Younge [sic] calling himself surviving Executor of John Fraser aforesaid dec’d, Exhibit I & J which they herewith file, being copies of originals in their possession and which they pray may be taken as a part of this their answer. [2]

These respondents respectfully submit the foregoing facts & circumstances as cause for not having made distribution of said Estate before and as cause why they should not now be required to make distribution to said petitioner of the share or portion of said Estate charmed by her under said Will. These respondents are extremely desirous of closing their administration of said Estate and distributing the property thereof to such as may be entitled to the same, and were in hopes that the difficulties which have heretofore prevented them from doing so would have been removed, but unfortunately

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they have not but have rather increased. And the respon-dents further show as a difficulty of recent origin, if the fact be true, that they have learned that the said George Kingsley has departed this life leaving a widow and several children in Hayti; that there has been no administration on his estate in this country, and the respondents believe that by law of this state the said widow has become entitled to one third of the distribution share of said Estate to which the said George Kingsley, her husband, may have been entitled to; and this last occurrence gives rise to questions which the respondents are desirous should also be settled before they proceed to make any distribution of said Estate – These respondents would be glad if all these difficulties and questions could be at once disposed of by this Court, and that this court had power sufficient to entertain & finally to dispose of them, but the respondents believe that the powers of this Court are not extensive enough for that purpose, and from necessity and for their safety and protection they will be obliged to invoke the interposition of a Court of Chancery to entertain and settle the several & respective claims made against said Estate by the several parties in interest as creditors, heirs, Legatees, & distributees – The Respondents will, if this court shall so order, proceed as early as practicable to collect the monies loaned by them, and also to sell and convert into money all the property of the Estate not in dispute, and dispose of the whole in such manner as this court shall order & direct; either

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loan it out upon such security as this court shall approve of, or deposit the same in any Bank which this Court shall name & subject to the order of this court until the several and conflicting claims against said Estate shall be finally closed and disposed of by a friendly and satisfactory arrangement among the parties, or by a decree of a Court of Equity in the premises, and they therefore pray that this court after settling the account of their administration now presented, will suspend further action on said petition & allow the respondents time to file a Bill in Equity for the purpose aforesaid, which they will do within such time as this court shall order & direct.

These respondents further shew that the account now submitted for settlement does not contain charges for counsel fees in the suit of the said Martha McNeill & others to set aside the Will of the testator, and by Anna M: Kingsley to recover certain slaves from these respondents as Executors aforesaid, because said professional services were rendered by the respondent B.A. Putnam as Counsel, who is willing to accept the same amount of compensation as charged by the counsel respect-tively who acted in the first case as Counsel for the said George Kingsley and the said Petitioner Anna M. Kingsley, and in the last case as counsel for the Petitioner.

And those respondents submit themselves to the Court in the premises.

[signed] B.A. Putnam
[signed] K.B. Gibbs

[1] This phrase is scratched out in original though faintly legible. It apparently was not to be included in the sentence and does not read as such.

[2] John Fraser, native of Scotland, drowned in 1813 leaving a massive estate in the hands of both Kingsley and Philip R. Yonge as executors. Kingsley was in New York City with a handsome payout from the United States government regarding Fraser’s Patriot War claim when he died in 1843. Fraser’s mulatto children, including Mary Ann and Elizabeth, actively pursued their father’s claims from their Rio Pongo, West African home (See also the Spanish Land Grants for John Fraser [incorrectly labeled originally as “Frazer”] that include several documents for claims therein, including power of attorney designation and legitimacy of their parents’ interracial, transnational marriage. For more information see: Spanish Land Grants of John Fraser, Box 14, Folder 15; United States of America, East Florida Claims, Case of John Fraser (Washington, D.C.: Government Printing Office., N.D.), 1-15; Daniel L. Schafer, “Family Ties that Bind: Anglo-African Slave Traders in Africa and Florida, John Fraser and His Descendants,” Slavery & Abolition, Vol. 20, Issue .3 (1999), 1-21.

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