MySource:Quolla6/Bill of Compaint, Fraley vs Fraley and Smith

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BILL OF COMPLAINT, FRALEY vs. FRALEY & SMITH Fide: [Fide:Transcribed by Penny Fraley Richardson

The Honorable John Brown judge of the Superior Court of Chancery. Humbly complaining unto your honor your orators William Friley, Reuben Fryley, Henry Friley and oratrix Chloe Friley.

That your oratrix Chloe is the widow and your orators the sons of Frederic Frily who resided in that part of Washington now included within the bounds of Russell County. On the 8th day of April in the year 1782 having then 8 sons and several daughters he made a will a copy of which your orators and oratrix herewith exhibit and which they say may be taken in as part of his will. He was induced to make this will as your orators and oratrix expressly charge from __________ ___________ motives peculiar to his situation and to avoid the whole of his real estate to fall into the hand of his eldest son. He resided in a county at that time exposed to the daily intrusions of the savage enemy containing but very few inhabitants and which was defenseless and entirely unprotected. Scarcely a day passed except during the winter season when danger did not threaten, and the savages often appeared on his plantation. Under the then existing law the whole of his real estate would descend to one of his sons had he died intestate and his object was that all should inherit his lands alike.

The testator lived afterward until December in the year 1792 when he died away from home in the state of North Carolina having had born to him from the date of the will until his death five sons of whom your orators Reuben and Henry are the two eldest. Some short time before his death he got Henry Dickenson, Clerk of Russell County to prepare another will for him which the said Dickenson accordingly did in which an equal division of all his land among all his (heirs) __________ _________according to the express directions of the said Frederic. The said Dickenson took the will so written to your orators fathers house in order that it might be executed, but he happened to be from home. No opportunity seems afterward to have offered to have the execution of the said will completed. Shortly before his death in North Carolina your orators and oratrix are informed that he was anxious to have made a will, but being unable to write one himself, and not being able to procure one to be written he died without accomplishing his wishes.

After his death six of the testators sons (being the six eldest) comprehending all those who were full age entered into an agreement that all the sons as well those born (time) _______ at the date of the said will as those born before should have equal portions of their fathers lands comprehending the four different tracts mentioned in the will a other land having been acquired since its date, ________ and with this understanding and with this view the said will was taken to court by your oratrix and her son James (the eldest) and admitted to record and administration with the will annexed presented to them. Afterward when the sons Isaac and Frederick came to full age they acceded to the said agreement and it was _______to and agreed between them and their brothers that they should have one hundred and fifty acres of land called in the said will Mounce’s Place that is twenty five acres each this being considered an equal portion in value of all the land divided into thirteen parts the number of brothers then alive. [inserted above this line is: To this the other brothers also acceded as they came of age]

The said Isaac purchased his brother Frederick’s part in the said land for a valuable consideration and about the year 1806 sold the same one hundred and fifty acres being his own and his brother Fredericks part as asigned to them by said agreement to a certain John Smith who resided in the neighborhood and who was well acquainted with the said agreement and afterward made him a title for one hundred and fifty acres according to certain boundaries then supposed to contain that quality. But as the parties had no means of ascertaining the precise quantity it was agreed that if the said quantity was included it should be reconveyed to said Isaac. Your orator and oratrix do not claim that the said Frederick ever conveyed the said land to said Isaac. He (gave) him they believe some instrument manifesting the contract.

The said Isaac before the said sale to Smith had removed out of Virginia the said Smith after his purchase gave the said land to his son John who in March 1816 with a view to defraud your orators went to the State of Kentucky, where (the) said Isaac resided and told him that your orators had run through his plantation and (liking) the land his father purchased from him and that he would have him for damages unless he would convey to him all the rights which he and the said Isaac and Frederic held under the said will. The said Isaac then stated that if such act would injure the younger sons he would not do it. The said Smith said that it would not and that he would give to the said Isaac a Bond of Indemnity. The said Isaac thereupon gave to said Smith some instrument of writing stating as your orators and oratrix have heard that he had sold to said Smith the rights of himself and his brother Frederic arising under the law said will and the said Smith therefore gave the said Isaac a Bond of Indemnity in the month of February before your orators with the consent of the said John Smith Jr. had appointed the surveyor of Russell County to come and lay off the hundred and fifty acres of land for the said Smith according to the agreement made between the aid Isaac and his father. When the surveyor came and had run the line including the said quality the said Smith refused to abide by it and insisted to have the land according to the boundaries contained in the conveyance from the said Isaac to his father. This circumstance prompted him to go to Kentucky and endeavor to obtain not only the land included in the said conveyance but the remainder of the survey called Mounces Place originally made for 243 acres.

Your orators and oratrix from _________then in March 1809 Charles your orators brother born since the date of the said will departed this life intestate and without lawful issue upon which the said Isaac sold his interest in the land to which by the agreement between the brothers said Charles was entitled to James the eldest brother who sold that interest in his own and his brother Benjamin accruing to him by the death of Charles to your orator William having sold his other interest in the land to your oratrix before the death of Charles. Your orator William had purchased before that time the interest of his brothers Martin, John, Jesse, and Daniel and also _______ their interest in Charles’ part. Your orators Reuben and Henry purchased their brother Calebs part before the death of the said Charles and your oratrix the residue. Your orators Reuben and Henry purchased their brother Benjamins part of their fathers land before the death of the said Charles and their brother James purchased the interest of Charles part. Your orators and oratrix further state that previous to the sale by the said Isaac to Smith in 1806 the said Isaac relinquished any claim to which your oratrix might have in the land which he sold to said Smith for about sixty dollars and your oratrix resides with orator William _______ having resided in Mounces Place since her husband’s death. Your orators and oratrix expressly charge that it was well understood in the neighborhood that the said will had not been regarded as the rule of division ______ that an agreement adverse to its premises had been made between those interested and that the said John Smith and his son John Smith Jr. [THIS INSERTED ABOVE THIS SPACE: the latter applied to purchase your orators Reuben and Henrys part of Mounces Place] acquainted with it and the terms of it.

To the end thereupon that the said John Smith, John Smith Jr, Isaac Friley, Frederic Frily, James Frily, Martin Frily, John Frily, Jesse Frily, Daniel Frily, Benjamin Frily, Caleb Frily, William Tabor and Nancy his wife formerly Nancy Frily, Sarah Donaho formerly Sarah Frily, Jesse Wommack and Chloe his wife, formerly Chloe Frily, Catharine Stapleton formerly Catherine Frily, Ruth Price formerly Ruth Frily, and Molly Frily may be made defendants to this Bill and that they may severally answer the premise as fully and truly as if the whole _____ _____ _____ and _____ that if his Honourable Court shall be of opinion that the said will ought to be canceled or revoked the same be set aside and all the children admitted to equal shares in the land or if that cannot be (now) done that the agreement between the sons be confirmed and the said Smith be assigned one hundred and fifty acres purchased by his father from the said Isaac and the residue of the _______ (called) Mounces to your orators and oratrix according to their several interests and that your orators and oratrix may have such other and further relief as may be calculated to do justice to their claims and forever grant them in the ________of their rights may it please your honor to _____ your orators and oratrix the ______ ________ of _______ ______.

Daniel Sheffey