Bolling v. Bolling
Bolling v. Bolling (1780-1781) centered on a familial disagreement over inheritance that was referred from the Virginia General Court to arbitration before Benjamin Waller. The dispute involved the will of Edward Bolling and was brought by his brother Archibald Baldwin against another brother, Robert Bolling, who had probated the will and acted as executor. The notes incorporating the arguments in this case are important for their revealing insight into the state of early American law, as viewed and used by attorneys at the time, and because the plaintiff and defendant were represented, respectively, by George Wythe and his former student Thomas Jefferson.
Contents
Factual Background
The Bollings.
Edward Bolling's Will
The Issues
The arguments made by Wythe for the plaintiff and Jefferson for the defendant revolve around two separate issues before the arbitrator.
First, the parties disputed whether the defendant, Robert Bolling, was entitled to the crops growing on Buffalo Lick plantation, which had been devised to him by Edward, at the time of Edward's death. Wythe argued instead that the crops should pass to the plaintiff, Archibald Bolling, as the residuary legatee to the will, as part of Edward's personal estate.
Second, the parties disagreed as to whether Edward's gift of his "book" to the defendant, Robert, was a legacy to him as executor of the surplus of the amounts credited to Edward after Edward's debts at his death had been paid. In the alternative, Wythe urged that the surplus was an undisposed part of Edward's personal property that should pass under the will's residual clause to the plaintiff, Archbald.
The Case
Archibald brought this case as a Chancery suit in the Virginia General Court, from which it was referred to arbitration because of its complex issues. The General Court was composed of members of the Governor's Council and were, according to Jefferson, "chosen from among the gentlemen of the country, for their wealth and standing, without any regard to legal knowledge." [1] In arbitration, the the case would be heard by an actual lawyer capable of appreciating and interpreting the complications of common law inheritance and property law.
Arbitration
Jefferson's Case Book reports that a case was referred to Benjamin Waller, acting as arbitrator. [2] Waller was the clerk of the General Court and would later become a judge himself.
Wythe's First Argument for Plaintiff
Wythe first argues that the plaintiff, Archibald Bolling, is entitled to the crops growing on the Buffalo Lick plantation, land that had been expressly given to the defendant, Robert Bolling, in Edward Bolling's will. The basis for this position is that the crops, known under the law as "emblements," are personal chattel (also known as personal property, as opposed to real property) and thus moveable, or separate from the land. Because the emblements are not fixed to the land, they should not pass with the land to Robert but rather to Archibald as the residuary legatee under the will. Wythe posits that the growing crops are like any other personal chattel, such as cattle, furniture, or harvested plants, and should follow the representative of the sower, which in this case is Archibald.
After outlining the reasons why the emblements should pass to Archibald rather than Robert, Wythe takes an odd tactic. Anticipating the authorities Jefferson will cite for the opposing view, that emblements pass with the land, Wythe attempts to discredit reporters of case law who support this contrary position. In the face of Wentworth's reporting a case in which emblements passed with the land, Wythe calls him "a compiler only, and what he said of the sale or conveiance[,] since he quotes no authority[,] is but his opinion."[3] A case reported by Sir Humphrey Winch becomes "another unauthoritative publication," as it was translated from Winch's original French.[4] In addition, Winch's report contains a eulogy for Winch himself, a fact that causes Wythe to cast doubt over whether Winch himself actually compiled the reports or whether some anonymous, unauthorized meddler was at work.
Jefferson's First Argument for Defendant
Wythe's Second Argument for Plaintiff
Jefferson's Second Argument for Defendant
Wythe's Reply for Plaintiff
Historical Importance of Case
Rare insight into how practitioners used early Anglo-American law. The work of lawyers was rarely recorded in this detail.
The arguments are sophisticated and highly technical, involving interpretations of existing property and inheritance law.
George Wythe as attorney rather than judge.
Thomas Jefferson's brilliance as advocate.
Wythe and Jefferson facing off against each another as having historical and biographical importance.
Jefferson's Notes
Brief explanation of Jefferson's notes.
