#### WILLIAM BAILEY, Jun. et al. v. GEORGE WILSON et. al.

December, 1835.

If, to prevent a contest about the probate of their father’s will, certain brothers execute articles of agreement among themselves, providing for a more equal distribution of their father’s estate, than that contained in his will, such agreement will not be considered as voluntary and without consideration, but will be enforced in equity, as a fair family arrangement, independent of its being a compromise of doubtful rights.

This bill was filed at the Pall term, 1826, of the Court of Equity for the County of Anson, by William Bailey, Junr., William Covington and Elijah Covington, plaintiffs, against William Bailey, the elder, Jacob Bailey, George Wilson, and Dempsey Fielding and Fanny his wife; and was subsequently amended by making John Bailey and Charles Gettings and Clara his wife also defendants thereto.

The plaintiffs therein charged, that Thomas.Bailey died in the year 1800, seised of real, and possessed of personal property, after having made and published his.last will and testament, which at the October term, 1802, of Anson County Court was duly admitted to probate: that the testator by his said will devised and bequeathed among other things as follows: that is to say, he devised to his son John two hundred acres of land, whereon the said John then lived, being the half of a four hundred acre tract; and to his son Jocob, the other half of the said tract; and also bequeathed to the said Jacob a negro boy named Jim; he devised to his son William, three hundred and forty acres, whereon the said William then lived, the half of a tract of six hundred and eighty acres, on which the testator resided; and to his son James the other half of the above six hundred and eighty acres, being the part on which the testator lived; but the last devise was upon condition that the said James should not take possession thereof, until the decease of his mother; he devised to his wife Jenny Bailey, the last mentioned piece for her life, and bequeathed to her three negroes, Wall, Kiz and Silvy, also for life: he bequeathed the said Silvy, and her increase to the said James ; Wall, to the said John; and Kiz and her increase, (with the exception of the child wherewith she was then pregnant,) *183to the said William. The plaintiffs further charged that the said John and Jacob were dissatisfied with the dispositions in the testator’s will, and were about to oppose the probate thereof; and a controversy being then likely to arise between the brothers in relation thereto, they, the said brothers entered into an arrangement for preventing such controversy, and making a more equal distribution of the property so devised and bequeathed; which arrangement was testified by two written instruments, executed at the same time, and which were made exhibits in the cause. These instruments bore date in April, 1802; one of them was in the form of articles of agreement signed and sealed by all the brothers, whereby, after reciting the bequests aforesaid, it was declared that it was nevertheless agreed upon between them, that Wall, Kiz and Silvy, should remain in the possession of Jenny Bailey, their mother, for her life; that the hire or labour of Jim, should be equally divided among all the brothers; and that after their mother’s death, all the said slaves should be equally divided, or be sold, and their proceeds equally divided between the four brothers. The other instrument was in the form of a penal bond, in the sum of one thousand pounds, executed by William and James, to John and Jacob, with condition annexed, which, after reciting the devises of the six hundred and eighty acres tract to the obligors, stipulated that after deducting two hundred acres thereof .to each of the obligors, the residue (two hundred and eighty acres,) should be divided into four equal shares ;• that one of these shares at the lower end of the old survey, from a creek up the little branch, should be conveyed, by sufficient conveyance to John ; and one other share joiningJames and William’s land on the north side of the creek should be conveyed in like manner to Jacob. The bill further charged that their mother, the widow of the testator, had died about twelve months before the filing of the bill, possessed of all the said slaves, and their increase, except a negro girl named Rachel, and her increase, (at that time two children, whose names were unknown,) in the possession of Jacob Bailey, in Tennessee ; that William Bailey had in his possession, Wall, Kiz, Winny, Nathan and little Wall, and the children of Winny; *184that James Bailey had died, and George Wilson, his admm-instrator, had in possession as'such, Silvy and her increase, Fanny, Hamilton, Isabella, and Jim; that the said Wilson, with a full knowledge of the claim respecting these negroes, and for.the purpose of defrauding those thereunder entitled, had obtained an order of Court for the sale of the negroes in his possession, and had procured one Yincent Parsons to bid them all off at a pretended sale under such order ; that they were put up together, and bid off at a gross sum ; and that in"furtherance of the fraudulent scheme' aforesaid, a pretended conveyance was made by Wilson, as administrator to Parsons, who in a few days thereafter, reconveyed them all to the said Wilson, in his individual capacity. The plaintiffs set forth, that the heirs at law of James Bailey, were Sherwood Bailey,- who was then dead, Clara the wife of Charles Gettings, and Fanny the wife ofDemp-sey Fielding, one of the defendants to the bill; and that the said Sherwood Bailey, and Charles Gettings and wife, had conveyed their whole interest in the before-mentioned land to William Bailey, one of the defendants, who then occupied the entire tract of six hundred and eighty acres ; that the plaintiffs had purchased and obtained conveyances from John Bailey, for all his interest in the said negroes and land; that Dempsey Fielding and Anne his wife, resided in Tennessee; that the negroes then in possession of Jacob Bailey, who also resided in Tennessee, were equal in value to the fourth part to which he was entitled under the aforesaid agreement, and that the plaintiffs had notone of the negroes; that they had applied to Wilson and William Bailey (the defendants,) for their share thereof, and to the said William Bailey, to convey to them the one fourth part to which they were entitled of the laud, but that these defendants utterly refused to comply with their request. The bill prayed for process against all the defendants, that the plaintiff’s might have their fourth part of the slaves allotted and delivered to them or the value thereof; and have possession decreed, and proper conveyances made of their share in the land ; and for an account of the profits since the death of the widow of Thomas the testator, and for general relief. John Bailey by his answer admitted, *185that he had sold and conveyed all his interest in the property to the plaintiffs as charged. Gettings and wife admitted by their answer, that they had conveyed all their interest in the lands and other real estate of James Bailey to the defendant William. Publication was made agreeably to the act of Assembly, as to the non-resident defendants Jacob Bailey, and Dempsey Fielding and wife, and the bill takenpro confesso against them. William Coving-ton, one of the plaintiffs, had died since the filing of the bill, and his executor and heirs had Been made parties plaintiffs. William Bailey, Sen., and George Wilson put in several answers to the bill. The former admitted the death of Thomas Bailey; the execution of his last will, containing the devises and bequests stated in the bill; a dispute between the brothers in relation to the will; and the execution of the articles and bond exhibited; but declared that he acceded to the arrangement under “ an expectation and belief that it would put an entire" end to the controversy but that the probate of the will was caveated by James Plunkett, one of the next of kin, and on. an issue made, the will was established at the October term, 1802, of Anson County Court. The defendant further stated, that Jenny Bailey, who by the* terms of the .will was entitled to the negroes bequeathed her for life, removed to Tennessee to reside with her son Jacob, and carried with her the negro Rachel; that she afterwards returned to this state without bringing back Rachel, whom Jacob insisted on keeping; and that he had been informed that Rachel had since had issue: admitted that he had the negroes charged by the bill to be in his possession, but had believed that John Bailey, knowing that the articles "were.executed without consideration, had abandoned all expectation of benefit from them ; and insisted that the Court would not now permit him to enforce. the execution of" the said articles, after such long delay and acquiescence. This defendant also admitted the death of Jenny Bailey as charged, and the purchase and conveyance from Sherwood Bailey and Charles Gettings and wife of their shares of the land willed by Thomas Bailey to his son James. George Wilson, in his answer, admitted the death of Thomas Bailey, the devises *186and bequests as set forth, and the probate of his will; the death of Jenny Bailey the widow ; the death of James Bailey ; his administration on the estate of said James, and the taking into his possessions of the negroes mentioned in the bill, as the property of his intestate; but declared that he had sold these negroes in pursuance of an order of Court; that Vincent Parsons became the purchaser fairly, as the highest bidder, on a credit of twelve months; that the negroes, being a mother and four children, were sold together on a principle ofhumanity; denied that there was any agreement entered into between him and Parsons for the purchase of the slaves before the sale took place ; and averred that about ten days afterwards he repurchased the whole of them back from Parsons. This defendant, in relation to the agreement of compromise charged in the bill, said merely that he was ignorant of the execution of the writings, and required that the plaintiffs might make strict proof thereof; and insisted that if the execution should be proved,'the Court ought not to enforce the specific performance thereof; but inasmuch as the same was without any consideration, leave the plaintiffs to their remedy at law. To the answers of the defendants William Bailey and George Wilson, the plaintiffs replied generally, and thereupon proofs were taken. The Court of Anson passed an interlocutory order at March term, 1827, directing an account of the hire of the negroes mentioned in the bill, from the death of Jenny Bailey ; which account appeared to have been taken accordingly, but not to have been otherwise acted upon, and the cause was afterwards set down for hearing, and then transferred to the Supreme Court for hearing.

Where an tory order for an ac-not reheard nor prayed heard, it Síen S *187declaration that theplaintiff is theaceouut prayed for. Ava£ue denial is favourably dantis bound to . answer not only as to jedg^but as to his belief, jfnee" de" which is be relied JJP™,0USllt brought ¿¿^nctiy in the answer>

*186 Winston for the plaintiffs.

Badger for the defendants.

Gaston, Judge,

after stating the case as above set forth, proceeded: — The interlocutory order for an account having never been reheard, nor prayed to be reheard, ought to be viewed as a declaration that the plaintiffs are entitled to the account prayed for, and of course to the share of the negroes, in relation to which the account was asked. But as this point has not been *187pressed here in argument, and as it is not improbable that the order may have been made merely to speed the final decision, we have examined into the merits of the case, upon the allegations and proofs.

The execution of the articles and bond exhibited with the bill, is barely not admitted by the defendant Wilson, This vague manner of denial is always received by the Court unfavourably. A defendant is not at liberty thus to put in issue allegations, which he mav fullv believe to be true, and thereby take the chances-of .the plaintiff’s being unable to establish them by strict proof. He is bound to answer, not only as to his knowledge,JRut as to his information and belief. But the execution is fully provéd William Wood, who drew up the writings at the request of all the parties, and who saw them executed, and attested ‘ ... the execution as a subscribing witness.

An allegation is faintly intimated in the answer of William Bailey, Senr., that the compromise testified by these writings, w'as made upon condition that the same should not be operative, if opposition were made on the part of any of the next of kin to the -probate of Thomas Bailey’s will. If such a defence were intended, it was incumbent on the party to bring it forward distinctly. It is inconsistent with 'that reverence for truth, which- is required from those who answer upon oath, as well as with the rules of pleading, for a defendant to express himself obscurely in his answer, and leave to the Court the task of divining his meaning. Whenever this course is pursued, the Court adopts that construction of the language which is strongest against him. The defendant says that he acceded to the arrangement, under the belief and expectation that it would put an entire end to-the controversy. What controversy does he refer to ? The only one mentioned in the previous part of the answer is “a dispute between the brothers,” in relation to the will. The answer further states that James Plunkett, .one of the next of kin, caveated the will; that an issue -was thereupon made up, and the will established at October term, 1802, of Anson Court. The whole truth, in relation to this caveat, is not set forth. An.exhibit is produced, showing, that at the term aforesaid, a caveat was entered by James Plunkett; *188an issue made up; the issue found against the caveator; a new trial of the issue awarded by the Court, and then a withdrawal of the caveat by the caveator.

And if not taken in the answer, it cannot be urged on the hearing.

The Court does not consider this defence open to the defendant, if it could be proved, because it is not taken in his answer. Proofs must be confined to the allegations of the parties. But it is unsustained by the proofs. The only testimony tending to establish it, is that of Catharine Bailey, who, in answer to an interrogatory whether she “ understood that the bonds were to stand in full force, if no other heir came forward to break the will V’ answers, that she heard them, the four brothers, say so. It would be a violent inference from.this, that they had agreed that it should be utterly null, if any one set up an ineffectual opposition. But this witness does not represent herself as being present at the agreement of compromise, or actually knowing the full intent of the parties ; nor does she state when she heard this declaration ; but says further, that she also took a bond at the same time, for some of the moveable property of her father, (the testator); that she has not, indeed, got the property, but that she put the bond into the hands of a legal gentleman, for the purpose of being enforced, and does not know whether any, or, if any, what steps have been taken upon-it. Her acts seem to show that she did not x’egard her bond as avoided by Plunkett’s caveat. William Wood, however, who drew up both the writings, under the directions of the parties, has been examined upon this point by the defendants; and he states, that the agreement was, indeed, entered into, to prevent a controversy respecting their father’s will, but that he did not understand that the agreement should not be binding in case the probate should be opposed by others. It is probable that no opposition was apprehended, except from the dissatisfied brothers ; and also very probable that the ineffectual opposition set up, was withdrawn, because of the compromise between the brothers.

It is objected, that the agreement of compromise was wholly voluntary, and that- a Court of Equity will not enforce its specific execution. Where there is a fair doubt as to the rights of parties, an agreement entered into *189without fraud, for the compromise of those rights, is not a voluntary agreement, and is a fit subject for the jurisdiction of a Court of Equity. We should, however, have great difficulty in enforcing this agreement, merely as a compromise of doubtful rights, for the bill sets forth no rights as claimed by the plaintiffs, in opposition to those derived under the will. There is no averment of any matter which should render the validity of the will doubtful, but only of an intention on the part of the dissatisfied brothers, to contest its probate. It seems to us, that i,n order to make out a case of a compromise of doubtful rights, it was necessary to state what were the alleged rights, in regard to which the doubts existed. But it is not exclusively on this ground that the claim of the plaintiffs rests. The agreement was confessedly entered into for the purpose of quieting disputes between the children of the same father, in relation to the disposition of his property; it is apparently equal; it is not denied to be fair; and was deliberately assented to- as a proper and just family arrangement. Such arrangements are upheld by considerations, affecting the interests of all the parties, often far more weighty than any considerations simply pecuniary. Stapilton v. Stapilton, 1 Atk. 10. Cary v. Cary, 1 Ves. 19. Pullen v. Ready, 2 Atk. 292.

where no particular time is f,fed for tion of an butft™6”1’ most im*190portant cannot be3 carried into afterthe death of a thenliv-ing, no presumption of abandonment will arise from delay during the life of such person, although some minor parts of the agreement can be executed during such lifetime.

*189The defendant, William Bailey, sets up by way of defence, that he believed that John Bailey, knowing that the articles had been executed without consideration, had abandoned all expectation of benefit from them; and objects to him or his assignees, now enforcing them after such delay and acquiescence. No particular facts of acquiescence are stated; nor is there any averment that the parties to the arrangement had waived it, or agreed that it should be inoperative. Unless then an abandonment of the agreement is to be presumed according to the rules of the Court, this objection is unavailing. Under the circum- „ , . stances of the case we cannot infer such an abandonment, There was no time appointed for the execution of the agreement, but the most material parts of the agreement could not be executed until the death of the testator’s widow; and'the bill was brought promptly after her *190death. No inconvenience is shown to have been sustained by the defendant, because of a bill not having been brought in the lifetime of the widow to have the agreement established, and such parts of it as were then in a state to be performed, carried into execution. The plaintiffs complain of no wrong, and ask for no account before the death of the widow; and there is nothing shown from which we can infer that either they, or John Bailey, to whom they succeeded, anticipated any resistance to the claim until the moment when they sought the practical benefit of it.

The defendant, Wilson, insists, that the negroes which came to his possession as administrator of James Bailey, and therefore subject to the trust which the plaintiffs charge, are now his property, freed and discharged from the trust. The Court thinks this defence not sustained. It appears from the report of the commissioner in the Court below, that these negroes came to the possession of Wilson on the 17th of October, 1825. He is expressly charged in the bill with notice of John Bailey’s claim, and in his answer does not deny, but impliedly admits it, and sets forth a fact which is prima facie evidence of it. He denies that he knew of the execution of the writings, and prays that strict proof may be required thereof, but states that he got the negroes from the possession of John Bailey. The transactions on which he relies as operating a transfer to him of the property in the slaves, took place some time between October, 1825, and the Fall term of 1826, of Anson Superior Court. If these were in truth what they purport to be, the trust would still attach to the negroes in his hands, because he had notice of the trust. But we have no difficulty in pronouncing them merely colourable. He denies that there was “ any agreement entered into between him and Parsons for the purchase of the slaves before the sale;” but considering the general evasive character of the answer, and the circumstances of the case, we are constrained to believe that he attempts to shelter his conscience behind the literal sense of these words. He sets forth no reason for making the sale; shows no note taken from Parsons on his pretended pur*191chase; avers no change of possession ; and states neither the price or terms of his alleged repurchase. He has taken - Parson's deposition, which is very unsatisfactory. This witness states that he bought the negroes at a price exceeding their value by forty-five dollars ; and that Wilson did not apply to him to bid them off. This is the whole explanation given on the subject. Why he bid them off at forty-five dollars more than hé thought they were worth; whether he purchased in truth for himself, and intending to hold them as his own; whether he gave any note, or took the possession; whether he resold them to Wilson, and if so, when and for what price? On all these very natural subjects of inquiry he is wholly silent. We believe that there was in truth no sale, no repurchase; that the whole was a trick executed, not perhaps by means of a direct agreement between the defendant and Parsons, but of a well understood arrangement effected through the medium of some third person. -

Upon the whole matter, the Court is of opinion, that the plaintiffs are entitled to a decree establishing the agreement evidenced by the articles and bond of 1802, as a fair family arrangement, which is proper for. the execution of this Court, and which has never been abandoned; to an account of the negroes, the subject of that arrangement; and to an account of the profits of the said negroes, and of the share of the plaintiffs in the land, also the subject of that arrangement, since the 5th day of January, 1826, when the defendant, John Bailey, conveyed his interest therein to the plaintiff, as appears from- his deeds exhibited in the cause and duly proved.

Pee CüRIam. Decree accordingly.