The Tragic Lives of Malcolm and Mary Jane Stewart
of Richmond County, NC
Submitted by Barry Hedden great-great-grandson of Malcolm and Mary Jane
If you have research data about any of these people, please contact Barry Hedden,or me. Thanks! Myrtle Bridges, CC Richmond.
Malcolm Bethune STEWART (b. NC, 20 Oct 1827; d. Richmond Co, NC, 29 March 1894)
Mary Jane CALHOUN (b. NC, 31 Aug 1832; d. Richmond Co, NC, 15 Feb 1892)
Mary Jane's mother was Christian D. McInnis (b. NC?, abt 1795; d. Richmond Co, NC, abt 1858). Mary Jane's father was Daniel C. CALHOUN (b NC?, bet 1790-1800; d. Richmond Co, 1838). She had one sister, Catherine (b. NC abt. 1830; d. NC bet 1864-66), wife of William PATTERSON, no children. Malcolm may have had a brother, Alexander STEWART.
Children of Malcolm and Mary Jane were:
Anna Jane STEWART (b. Richmond Co, 31 Jan 1855; d. Scotland Co, NC, 11 Nov 1927), wife of Dennis JERNIGAN (b. Richmond Co, 28 Jan 1848; d. NC 11 Dec 1911); Catherine L STEWART (b. NC, 25 Oct 1865; d. NC, 28 March 1945), marr. James Burder CURRY/CURRIE; Robert L. STEWART (b. NC, 1 Feb 1868; d. NC 26 Feb 1890), unmarried I believe.
Nowhere else in my family tree does a story of such consistent tragedy and hard luck emerge as it does in the lives of these Richmond County individuals. I have been fascinated with Malcolm and Mary Jane Calhoun Stewart, as well as Mary Jane's parents, Daniel and Christian McInnis Calhoun for several years. I would like to share their story in the event that someone from Richmond County, NC can help me learn more about them, their ancestors, siblings, etc.
Mary Jane first knew hardship at age six, when her father died. Hard luck continued in her life virtually unabated until her death a half century later. Although the following chronicle provides much in the way of sterile facts about their lives, there is regrettably little about their personalities. There would seem to be significant evidence of both alcoholic husband and Battered Wife Syndrome here, though I draw that conclusion from a single document, which may or may not shed light on their entire lives. It does seem somehow significant to me that this woman lived the life she did, and yet prepared the way for a grandchild, Katie Jernigan, who I knew to be the living embodiment of unconditional love and selfless giving.
Mary Jane's parents were Daniel C. and Christian McInnis Calhoun, both of whom were born probably in NC between 1790 and 1800. They were married in Robeson Co in 1828, and had two daughters in 1830 and 1832. By the time Daniel wrote his will in 1835, it was obvious that he was ill and knew his days were numbered. He died in 1838, between 38 and 48 years old. His widow, Christian, never re-married, but raised their two daughters on her own. Though not enough to be called wealthy, there seems to have been substantial property in the family at least from the time of Daniel's death until the Civil War.
Malcolm Stewart and Mary Jane Calhoun were married (for the first time?) in NC, probably Richmond Co, in March 1854, although no official record of the marriage seems to have survived either in Richmond County, or in the NC State Archives. Their first child, Anna Jane, was born in 1855. In 1856, Mary Jane filed for divorce, a radical and scandalous move for the time and place. Although the divorce was officially granted, the Stewarts either decided not to complete the paperwork to make it official, or later re-married. I base this on the fact that two of their three children were born years later. Following is the shocking transcript of Mary Jane's Filing from the Spring 1856 Term of the North Carolina Superior Court at Rockingham. This Filing proved to be only the first episode in an eleven-year ride for the Stewarts through the North Carolina Court system.
State of North Carolina —Superior Court of Law Richmond County —Spring Term 1856. The Petition of Mary Jane Stuart (sic) against Malcolm B. Stuart (sic)
To the Honorable the Judge of the Superior Court of Law for the County of Richmond:
Your Petitioner Mary J. Stuart (sic) respectfully [showeth?] to your honor that some time in the month of March 1854 a marriage was contracted and duly solemnized between your petitioner Mary J. Stuart (sic) and the defendant Malcolm B. Stuart (sic) that for a short time the defendant seemed disposed to treat your petitioner with the kindness and affection which the tender relation into which she had entered entitled her to expect and she on her part constantly endeavored to discharge all the duties which she had assumed in taking the marriage vow. But your petitioner [showeth?] to your Honor that the defendant soon became addicted to habits of intemperance and began to treat your petitioner in the most cruel, violent and outrageous manner. That on one occasion the defendant threw your petitioner on the floor and stamped her with his foot and then seized your petitioner with his hands upon her throat and choked her until she could not speak and this while your petitioner was weak and feeble in consequence of having been delivered of child about eight weeks previous from the effects of which confinement your petitioner had not recovered and after your petitioner arose from the floor very much bruised and in great pain your petitioner was about to leave the house of the defendant and the defendant seized a gun and threatened that if your petitioner should attempt to leave he would shoot her on the spot. That frequently while your petitioner was far advance in a state of pregnancy the defendant treated her in the most harsh and brutal manner and offered to her person indignities and violence too shocking to be repeated - [illegible] he struck your petitioner until he raised blisters on her body which afterward broke and ran blood, that he often threatened to kill your petitioner while he had a gun in his hands that he often drove your petitioner from his bed and ordered your petitioner to go and lie with a negro man, and when your petitioner would get into the bed with the mother and sister of your petitioner he would drive your petitioner back into his own bed subject your petitioner to the most cruel and inhuman outrages for leaving his bed that the defendant would often force your petitioner to leave the house and go with him into the woods in the month of January while your petitioner was near the time of her confinement and compel your petitioner to submit to his embraces on rough and frozen ground in the day time for the express purpose as he declared of causing your petitioner death. That the defendant inflicted upon your petitioner a great number of indignities much more indecent and atrocious than those above stated. Your petitioner is restrained from setting them forth only on account of their shocking indecency. Your petitioner [showeth?] to your Honor that your petitioner strove to please the defendant and still hoped to appease and pacify him by yielding an implicit and unquestioning obedience to all even his most unreasonable and arbitrary demands and by patiently submitting to his cruel and revolting brutality until some time in the month of March 1855 when your petitioner could endure the treatment she received no longer and feared that the defendant would carry into execution his oft-repeated threats and put an end to her life and your petitioner then left the house of the defendant and went to the house of her mother who advised your petitioner not to leave the said defendant but to go back and try to live with him. Your petitioner then at the solicitation of the defendant and by the advice of her mother returned to the house of the defendant hoping that he would show her more kindness and respect than he had before done, but instead of an improvement in his treatment the defendant still pursued the same course and seemed to be determined to put and end to your petitioner's existence and the defendant continued by his cruel and barbarous treatment to endanger her life and to offer such indignities to her person as to render her condition intolerable and life bothersome [?] and so your petitioner was forced on the 22nd day of May 1855 to leave the house of the defendant in order to escape from his said cruel and barbarous treatment and other indignities and the defendant has since that time endeavored to obtain possession [?] of your petitioners person by force and your petitioner is in constant alarm and apprehension that her said husband will forcibly taker her back to his house and taker her life or otherwise do her some great bodily harm.
Your petitioner therefore prays your Honor to grant to your petitioner a divorce from the bed and board of her said husband Malcolm B. Stuart (sic) and that your petitioner may have such other and further relief in the premises as the nature of the circumstances of this may require and to your Honor shall seem meet.
May it please your Honor to grant to your petitioner a writ of subpoena to be served with a copy of this petition upon the said Malcolm B. Stuart commanding him to be and appear before your Honor in this Honorable Court at the next term thereof on the third Monday in March next then and there to answer this petition and to stand to abide by and perform such order judgment and decree as your Honor shall make in the premises. And your petitioner will ever pray [be?] (Signed) R.C. [Illegible] A[Illegible] McLean Solicitor for Pet.
State of North Carolina Richmond County. Before me A.E. McQueen [?] an acting Justice of the Peace in and for the County of Richmond personally appeared Mary J. Stuart (sic) (wife of Malcolm B. Stuart (sic)) who being duly sworn upon the Holy Evangelists of Almighty God maketh oath that the matters and things set forth in the foregoing petition are true to the best of her knowledge and belief and that her complaint is not made out of livity or by collusion with the said Malcolm B. Stuart and for the mere purpose of being freed and separated from each other but in sincerity and truth for the causes stated in the said petition.
She further maketh oath that the facts upon which her petition is grounded have existed at least six months prior to the filing of this petition. Subscribed and sworn to before me this 17th day of January A.D. 1856. (Signed) A.E. McQueen, JP [?]
Mary J. Stewart vs Malcolm B. Stewart —Decree of the Court:
This cause coming on to be heard upon the petition of Mary J. Stewart, & finding of the jury upon the issues submitted to them it is ordered, adjudged & decreed that the said Mary J. Stewart be divorced from the bed & board of Malcolm B. Stewart. And it is further ordered adjudged & decreed that the said Mary J. Stewart have capacity to acquire retain & dispose of by deed or will or in any other manner all such property as any benefactor [?] procured by her own industry or may accrue to her by [illegible, illegible], gift, bequest or in any other manner, & such property, during such time as this party shall remain unreconciled shall not be liable to the power, domain, control or debts of the said Malcolm B. Stewart, but on her death shall be [Illegible] as though she were unmarried, & she the said Mary J. Stewart may sue & be sued, without joining her husband & may claim [Illegible] for & be liable upon contracts & injuries made & done as though she were unmarried. (Signed) R.R. Heath, Judge SC [illegible initials]
Malcolm, it seems, was none too keen on these proceedings, based on the following newspaper ad placed by the court:
STATE OF NORTH CAROLINA RICHMOND COUNTY Superior Court of Law, Spring Term, A.D. 1856
Mary Jane Stewart vs. Malcolm B. Stewart Petition from bed and board and alimony.
In this case it appearing to the satisfaction of this court, that the Defendant resides beyond the jurisdiction of this Court, or so absconds or conceals himself that the ordinary process of law cannot be served upon him. It is therefore ordered by the Court that publication be made for six weeks in the North Carolina [Illegible], a newspaper published in the town of Fayetteville, notifying the said Malcolm B. Stewart personally to [be?] and appear at the next term of this Court to be held for the County of Richmond at the Court House in Rockingham on the third Monday of September A.D. 1856, then and there to plead, answer or demur to the petition filed, otherwise the allegations therein contained will be taken pro confesso and heard ex parte as to him.
Witness R.S. McDonald, Clerk of our said Court at office in Rockingham the third Monday of March A.D. 1856, and of American Independence the 79th year. R.S. McDONALD, C.S.C. [looks like] T2f 6w pf $3.15
Then, there is the following entry which survives from the April Term of Court, 1856:
"...State vs. Malcolm B. Stewart, Alexander Steward and Angus A. Campbell. This cause coming on to be heard upon the return of the Sci fa.... by the Sheriff." "Executed only on Angus Campbell; the others not to be found in my County." William Buchanan, Sheriff. Leave is granted to amend the Sci fa.... ordered to issue to Richmond and Montgomery Counties for Defendants, Malcolm B. Stewart and Alexander Stewart. July term 1856 the case is continued because of "sickness and inability to attend." October term 1856. The Defendant, Malcolm B. Stewart and his Securities, Alexander Stewart and Angus A. Campbell having failed to show any lawful excuse for non appearance of the said Malcolm Stewart and Jan. Term 1856 of this Court as he was bound to appear, the judgment for $200.00 is made final and absolute against the said Malcolm B. Stewart and his Securities, Alexander Stewart and Angus A. Campbell. Also for costs."
Court minutes Jan. 1855 - July 1859
As shall be seen, he eventually not only found his way back home, but back into the arms of Mary Jane!
In 1858, Mom-in-law -- none too fond of daughter's taste in men -- kicked the bucket, leaving a will and an executor. The plot only thickens from here. Archibald Buie had previously been named executor to the last will and testament of Daniel C. Calhoun, Mary Jane's father, who died in 1838. So far, I've found no records of his service in that first capacity, but now, Daniel's widow, Christian appointed him to the same role for her will. Surviving court documents tell a compelling, but confusing tale. One clear moral: don't accept wooden nickels or Confederate money.
Mother Christian had the best of intentions, trying only to leave her money equally to her two daughters, while trying to make sure that Malcolm couldn't get his hands on it, and trying to keep the money in the family. As the saying goes, however, the best laid plans of mice, men and dead women often go astray.
It is difficult to tell from reading the court documents whether Archibald Buie was also dishonest, in addition to being both unlucky and stupid. But certainly the latter two apply, with or without the first. He claims to have paid off considerable debts owed by Christian's estate from his own funds, intending to reimburse himself from the proceeds of the estate. Whether this is true or not, is not made clear in the court documents. Then, to his credit, he did have the prescience to sell the five slaves in advance of the Emancipation Proclamation, which would have rendered that property worthless. And it is true that he did not have any choice but to accept payment in Confederate currency, which soon became virtually worthless. However, his decision to invest a part of the profits in Confederate Treasury Notes makes it difficult to avoid either laughing or crying.
That there existed considerable animosity between Mr. Buie and the Stewarts is not surprising, but is clear in the records. From 1858 to 1867, while the American conflict raged between North and South, the North Carolina conflict between Buie and Stewart seemed almost as bitter. The Stewarts kept after Mr. Buie to come up with money from the estate, as per a court decree that did not make it's way into the archival estate file, while Archibald spent considerable time with solicitors trying to get out from under. Throughout the conflict the only time Malcolm seems not to have been at the side of his bride was during the brief period when he was off fighting in the war.
On 30 October 1861, at age 34, Malcolm enlisted as a private in Co E 38th NC Inf, nicknamed The Richmond Boys. He did all right at it until he took a bullet in the thigh at Frayser's Farm in VA on 30 June 1862. Right nasty wound it was, and they sent him home on furlough to recover from it. Trouble was, they thought he was coming back. Obviously, they didn't know our boy, Malcolm. He was listed as "absent wounded" or "absent sick" until he was listed AWOL on 1 February 1863, and as a deserter on 1 January 1864.
And just to show that the home fires were at least a-smolderin during this time: second child, Catherine, was born in 1865, and lil Robert L. (Lee? How patriotic!) arrived in '68.
Dickering and bickering between executor and heirs seems to have concluded in 1870 when the North Carolina Supreme Court said that Mr. Buie was entitled to relief from the original decree, and ordered the Stewarts to pay court costs. Near as I can tell that seems to have shut them up.
The remainder of our Malcolm and Mary Jane saga is disappointingly quiet, but seems nonetheless, to end on a sad note.
Mary Jane's father had died, probably young, when she was only six. Her mother passed when Mary Jane was 26. By the time only-sister, Catherine died when Mary Jane was in her thirties, there is no evidence that she was left with any family other than Malcolm and the children she bore him. Her adult life was fraught with turmoil ranging from an abusive husband to the American Civil War, to the loss of much of her inheritance and drawn-out court fights. Not to mention the fact that, in the 1870 census, Malcolm is listed as "working in turpentine" -- which could explain why no more children were born. If aroma can be an aphrodisiac, then surely it can work in reverse.
The final tragedies of her life came when son Robert died unmarried and childless in 1892 at the age of 24-- reason unknown -- and her twin grandchildren, Dennis and Anna Jernigan died as newborns in January 1892. Mary Jane herself died only three weeks later, at the ripe age of 59. Finally, just two years after her death, and after almost 40 years of marriage, a divorce, a re-marriage (one hopes), a war, a war wound, a history with the law, and a career in turpentine, Malcolm was laid to rest in the grave next to Mary Jane. He was 66.
Finally, there is an odd twist to my research on this family. In an interview that took place in the 1960's, Ed Jernigan (1881-1968), grandson of Malcolm and Mary Jane, told genealogy researcher Frank Jernigan that Mary Jane came to America with her parents from Scotland as a young girl. He said that, when the family arrived, MJ's mother barely spoke English. But any records I have found indicate that Mary Jane and her parents were all born in NC. It is quite likely that the Calhouns and the Stewarts were descended from Ulster Scots, known locally as Scotch-Irish, though not first generation arrivers. Certainly, erroneous stories of family origin and history are common. Usually, however, there is some logical tie to reality, or some reasonable explanation for the error. I have found Frank Jernigan to be meticulous. If Frank said Ed said it, then Ed said it. The explanation for this one, however, escapes me.
Once again, I would love to learn more about this family. Who were the parents of Daniel Calhoun and Christian McInnis Calhoun? Where did they come from? Did they have siblings? Was Archibald Buie a relative or just a friend? Who were the parents of Malcom Stewart? Did he have siblings? If there is anyone out there who can shed any light at all, I would love to hear from you.
Stewart-Calhoun-McInnis Appendices — Census Data 1830 Richmond Co, page 213 Daniel C. Calhoun age 30-40, 1 female under 5, 1 female 30-40
Chas Calhoun age 60-70, 1 male 20-30, 1 female 10-15, 1 female 15-20, 1 female 50-60
page 208: Catherine Calhoun age 50-60, 1 male 20-30, 2 females 20-30
John Calhoun age 20-30, 1 male under 5, 2 females under 5, 1 female 20-30
1840 Richmond Co. page 253: Mrs. Christian D. Calhoun 50-60, 2 females 5-10, 1 free colored person - male 24-36
Mrs. Christian Calhoun, Sr. (Who is this?) 1 male 30-40, 1 female 15-20, 3 females 20-30, 1 female 70-80, 1 female 90-100!
page 255: John Calhoun 2 males under 5, 1 male 5-10, 1 male 10-15, 1 male 40-50, 1 female 5-10, 1 female 10-15, 1 female 30-40.
1870 Richmond County - Stewartsville Twp - p. 629 176/176 -
Stewart, Malcolm 42 b. N.C. working in Turpentine
Mary J. 35 b. N. C. Keeping house
Anna J. 15 b. N.C. At home
Catherine L. 5
Robert L. 2
1880 Richmond County - Stewartsville Twp. p. 60 543/563
Jernigan, Dennis 28
Anna J. 24
544/564 Stewart, Malcolm 47 Farming b. N.C. Father b. N. C. mother b. N.C.
Mary Jane 43 """
Catte E. 14
Robert 10
Stewartsville Cemetery, Laurinburg, Scotland County, NC Tombstone Data:
Malcolm Stewart - Oct 30, 1827 - March 29, 1894
Mary Jane Stewart wife of Malcolm - Aug. 31, 1832 - Feb. 15, 1892
Robert L. Stewart - Feb. 1 1868 - Feb. 26, 1890
Anna J. Jernigan dau. of D.S. and Anna J. - Jan 17, 1892 - Jan 22, 1892
D. S. Jernigan - 1848 - 1911
Anna Jernigan - 1855 - 1927
These are also buried next to the Jernigans:
James Burder Currie - Oct 11, 1852 - April 5 1925
Catherine Stuart (sic) Currie Oct 25, 1865 - March 28 1945
Daniel Currie, son of J.B. and Cattie E. Nov 16, 1893 - June 5 1895
J. Croom Currie, son of J.B. and Cattie E. Feb 14, 1892 - April 9, 1893
Don't know who these are:
Elisha Morris - Nov. 9 1854 - June 27 1933
Mary Stewart Morris March 27, 1850 - July 12, 1935
Estate File of Christian D Calhoun (abt 1795 - abt 1858) NC State Archives CR 082.508.7
With sincere appreciation to Jeri Dearing of Wilmington, NC who generously provided me with copies from this file in April 1998
Robeson County NC Marriage Bond of Daniel C Calhoun:
State of North Carolina Robeson County } Know all persons by these presents that We Daniel Calhoun & D McLaurin do promise to pay James Iredell or his successor in office the sum of One Thousand Dollars given under our hands & Seals -- The condition of the above obligation is that if Daniel Calhoun & Christian McInnis get married the above obligation is void but otherwise [hand ?] in full force & virtue -- November of 1828. (signed) Daniel Calhoun (Seal) (signed) [illegible] (signed) D McLaurin (Seal)
Last Will and Testament of Daniel C. Calhoun:
In the name of God, Amen. I Daniel C. Calhoun of the State of North Carolina & County of Richmond altho weak & sick at this time, Being of sound & perfect mind & memory (Blessed be God) do this the thirty-first day October in the year of our Lord One thousand Eight Hundred & thirty-five. Make & publish this this (sic) my last will & testament, in manner of following that is to say:
First I give & bequeath to my beloved wife Christian Calhoun all my estate real and personal of every denomination providing she shall pay the legacies hereafter enumerated also pay all my lawful debts defray my funeral expense & erect a [great?] set of Marbles engraved at my grave after my death.
Second I give & bequeath to my beloved Daughters (to wit) Catherine Ann & Mary Jane the sum of three Hundred Dollars each when each of them will arrive at the age of twenty-one years or sooner if their Mother pleases it is also to be under stood that their Mother is to give each of them good Common Education Support & work them in a reasonable manner until they arrive at twenty-one years unless they get married sooner. And I hereby make & ordain my beloved wife Christian Calhoun Executrix & Archibald Buie Executor of this my last will & testament. In witness whereof I the said Daniel C Calhoun have to this my last will & testament set my hand & seal the day and year above written. (signed) Daniel C Calhoun
Signed sealed, published, & declared by the said Daniel C Calhoun the testator as his last will & testament in the presence of us who were present at the time of signing & sealing thereof
(signed) Charles Patterson
(signed) John Calhoun
(signed) John Carmichael
State of North Carolina —Richmond County Court of Pleas & Quarter Session October Term 1838
The Last Will & Testament of Daniel C Calhoun dc'd was proven in open Court by the oath of Charles Patterson a [illegible] witness there to ordered to be Recorded (signed) [illegible]
Last Will and Testament of Christian D. Calhoun:
In the name of God, Amen I Christian D Calhoun of the County of Richmond and State of North Carolina being of sound and disposing mind and memory do on this 24th day of August A.D. 1855 make publish and ordain my last will and testament as follows:
1st I give and bequeath unto the children of my friend Archibald Buie of Robeson County one hundred Dollars
2nd Item, I direct that my old negro woman Susan shall be taken charge of by my daughters and kept comfortable and free from want during her life by which soever of my daughters she shall choose to stay with, and in case of the death of my daughters the said negro woman Susan is still to remain in the family and be supported and taken care of by any person succeeding to any portion of my estate with whom she may choose to remain.
3rd Item, I give devise and bequeath unto my friend Archibald Buie of Robeson County and his heirs executors and administrators all the property both real and personal of every kind and description whatever including all that I shall receive or become entitled to either by inheritance, [illegible], gift, devise, bequest or in any other way whatever and also all money, notes, bonds, claims or rights which I may have or be entitled to at my death after the payment of all my just debts and legacies above mentioned funeral expenses and charges and costs of proving and executing this will. To have, and to hold all the said property to him the said Archibald Buie his heirs and assigns in trust and to the uses intents and purposes following and no other: that is to say --
That all the said property shall be divided into two equal parts both real and personal and one part shall be held in trust for the sole and separate use of my daughter Mary Jane Stewart free clear and exempt from the control debts and contracts or liabilities of her husband Malcolm B. Stewart for the term of the natural life of said daughter and at her death for the use of such child or children as she shall leave living at the time of her death or the issue of such of her children as shall die in the life time of my said daughter to be equally divided amongst them in such way as that all the children or grandchildren of any one of the children of may said daughter shall receive such part of the estate of my daughter as the parent of such children or grandchildren would have received if living
The other part of the said property is to be given to my daughter Catherine Ann Calhoun for and during her natural life and at her death to her issue to be divided between and amongst them as directed in the case of my daughter Mary Jane. But should either of my said daughters die leaving no issue living at the time of her death then her share is to go to the [illegible] of the survivor to be held as the share of such survivor is herein directed to be held. And in case both my said daughters should die leaving no issue living at the time of their death then I give devise and bequeath all the said property to the children of my niece Flora Buie or to the issue of such as shall die in the life time of my daughters.
I hereby constitute nominate and appoint my friend Archibald Buie executor of this my last will and testament.
In testimony whereof I have hereunto set my hand and seal the day and year first above written Christian D Calhoun (X her mark) (Seal) Signed sealed published and declared by the testatrix to be her last will and testament in the presence of (signed) Alex McLean (signed) RE [Froy?]
State of North Carolina Court of Pleas & Quarter Session County of Richmond April Term 1858 The due execution of the foregoing and within last will and testament is proven in open court by the oath of Robt E [Froy?] who disposes that he saw the testatrix Christian D Calhoun sign and seal the same and heard her declare it to be her last will & testament. That she was of sound disposing mind memory at the time of executing the same.
Further that Alex McLean the other substantiating witness to this will is dead but that he is familiar with the handwriting of the said Alex McLean and that the signature purporting to be his is genuine.
Ordered by the court that the will and the certificate be recorded and filed in the office of the Clerk of Court (signed) L H Webb CCC
An inventory of the personal property of Christian D Calhoun deceased which came into the hands of Arch Buie her Executor:
Two horses valued at $150, twelve head of cattle valued at $75 q6 head of hogs valued at $27, one buggy and harness valued at $75, [anceart? or one eart?] valued at $18. farming utensils valued at $15. household and kitchen furniture valued at $165. Poultry valued at $6.50 Good debts in notes and accounts $150. and the following negro Slaves viz. Gabe and George and Jim and Alex and Angeline
July 19th 1858 (signed) Arch Buie Exec. Sworn to before me July 19th 1858 } signed) L H Webb CCC }
Thomas J. Covington vs Archibald Buie, Exc. of Christian C. Calhoun. This is a [Scire Facias?] to receive a judgment [ ?] pleas [sent tiel?], and payment. The Court adjudges that there is such a record.
The defendant offered in evidence of payment a receipt, signed by William Buchanan, who was then Sheriff of Richmond County, in these words, viz,"Received from Christian D Calhoun three hundred dollars and thirty cents to be applied to the payment of a judgment in the superior Court of Richmond in the suit of Thomas J. Covington against her. March 17, 1857."
The plaintiff then examined R.S. McDonald, Clerk of the Superior Court of Richmond County who testified -- "That after the rendition of the judgment above mentioned he did not deliver any [Fi Fa? Looks like Fi Fa throughout, but why wouldn't it be Sci Fa?] to Buchanan, returnable to March Term 1857, but he delivered to the plaintiff a writ of [Fi Fa?], returnable to March Term 1857, and directed to the Sheriff of Richmond County for the collection of said judgment; that the [Fi Fa?] was returned to him by the plaintiff during March Term 1857, without any entry or endorsement upon it; that about the date of the above mentioned receipt, one Patterson, professing to be the agent of Christian D. Calhoun, applied to him for the amount of the said judgment, saying that Buchanan had misplaced the [Fi Fa?] and could not lay his hands upon it, that he wanted to pay off the said judgment to Buchanan; that he told him, that Buchanan did not have the Execution, and he had better pay the money into his Office -- which he declined doing." Witness further stated, That no money has been paid into his Office by Buchanan or any one else in satisfaction of the said judgment, or any part thereof.
Whereupon the Court instructed the jury that if that [witness?] was to be believed only Buchanan had the [Fi Fa] in his hands the payments of the money to him to be applied to the judgment was no payment of the [Fi Fa]. The counsel for the [?] requested the Court to instruct the jury that if the sheriff had the [Fi Fa] in his possession then it would be a payment of the execution. The Court declined to give this instruction for the reason that there was no evidence that it was in his possession.
Judgment & appeal -- (signed) [illegible]
State of North Carolina. To the Sheriff of Robeson County Greeting: Whereas Thomas Covington lately in our Superior Court of Law, held for the County of Richmond at the Court House in Rockingham, by the Judgment of said Court Recovered against Christian D Calhoun and Malcolm B. Stewart as [well?] a certain debt of two hundred and eighty four dollars with interest on two hundred and fifty dollars principal money from the fifteenth September 1856 and costs of [illegible?] which were taxed by the Clerk at the Sum of Eleven 75/100 dollars. Whereof the said Christian D Calhoun & Malcolm B Stewart is convicted as by the record of said Court [manifestly?] appears. And now, on behalf of the said Thomas T Covington, we are informed that although judgment be thereupon given, yet execution of that judgment still remains to be made and after giving of the said judgment the said Christian D Calhoun died having first duly made and published her last will and testament and appointed Archibald Buie Executor thereof who since the death of the said Christian D Calhoun hath duly proved said will, and taken upon himself its Execution as we have been informed we therefore command you as heretofore that you make known to the said Archibald Buie that he be before the Judge of our said Court at the Court House in Rockingham on the third Monday of March A.D. 1859 to show if he has any thing to say, why the said Thomas T Covington ought not to have Execution against him as such Execution as aforesaid, for the debt, damages, and costs aforesaid, to be [illegible] of the Goods and Chattels which were of the said Christian D Calhoun at the time of her death in his hands to be administered if he hath so much thereof [illegible] to the [illegible], form and effects of said Recovery, and have you thus then and [illegible] this [illegible].
Witness R. McDonald Clerk of our said Court at office in Rockingham the third Monday of September AD 1858. (signed) R McDonald c/c
[Numerous additional markings and notes indicating some action taken at the Spring Term 1858, that the Sheriff made witness to Archibald Buie on 12 October 1858 and reference to the Docket of the Fall Term 1866.]
State of North Carolina In Equity Richmond County —Fall Term A.D. 1866
To the Honorable the Judge of said Court --
The petition of Arch'd Buie Executor of the last will and testament of Christian D Calhoun dec'd also trustee for the benefit of certain legatees therein named respectfully showeth unto your honor that in a cause lately pending in this honorable Court wherein William Patterson and wife Catherine were plaintiffs and your petitioner Arch'd Buie Executor [?] and Malcolm B Stewart and wife Mary Jane were defendants [upon?] the report -- the Commissioner ordered to state an account in said cause a decree was rendered declaring that the said Arch'd Buie as trustee [?] held eleven hundred and eighty six dollars and seventy five and one half cents in trust under said will for the use and benefit of William Patterson & wife Catherine and nine hundred and seventy four dollars and forty four cents in like manner for the use and benefit of Malcolm B Stewart and wife Mary Jane subject to paying the costs of said suit which was adjudged to be paid out of the trust fund pro rata and the balance after deducting the costs to be held [?] in the above proportions Your petitioner further showeth that at the time of his qualification as Executor as aforesaid the estate of his testatrix was largely indebted most of which debt your petitioner paid with his own private funds before he realized any money from the sale of the personal property of his testatrix or otherwise from the estate of his testatrix and at the time he paid said debts he did so with money of specie value and not in any way depreciated.
Your petitioner further showeth that he sold the perishable personal property of his testatrix on the 14th day of February 1863 upon a credit of six months for two hundred and ninety five dollars & seventy two cents and the negro property consisting of five slaves belonging to the estate of his testatrix on the 20th day of January 1863 on a credit of six months which five slaves brought the sum of five thousand and seven hundred and nine dollars all together and that the proceeds of the sales of the perishable personal property and of the slaves amounting in the whole to six thousand and four dollars & seventy two cents was when due collected in Treasury Notes of the Confederate
States it being the only currency then in use and receivable in payment of debts and public dues in the State of North Carolina and that the said sales were made with the understanding that payment would be received in said currency Your petitioner further showeth that he applied and accounted for in the account in said case of so much as was necessary to reimburse himself for what he had advanced of his own private funds in the payment of the debts and expenses of administration of the estate of his testatrix of the proceeds of said sales which when due and paid to him according to the [sale?] of value adopted by the Legislature of North Carolina was of the value of nine dollars in currency worth one dollar in specie and although your petitioner accounted for in dollar for dollar yet he did not [receive?] in value more than one ninth on nearly four thousand dollars expended by his of money that was equal to specie and that the balance of about two thousand and three hundred and seventy three dollars and forty one cents he converted in what was considered the best securities attainable at the time to wit interest bearing Confederate Treasury notes which is now of no value and which he holds still in hand and will apply as this honorable court may direct & that Patterson & Stewart nor their wives nor any one for them availed themselves of the provisions of the decree by taking the money & giving [bond?] to your petitioner for the forthcoming of the [principal?] when the same might be called for by the [illegible] legatees in said will named and further that the sale of the slaves was discretionary by your petitioner that had he not sold them by their emancipation they would have been valueless now and your petitioner would [not?] have recovered the real value of the money he expended in payment of debts [?] out of the real estate of his testatrix or so much there of as the real estate is worth which real estate is now in the use and possession of the legatee Mary Jane wife of Malcolm B Stewart Your petitioner further showeth that the decree above alluded to rendereth in this cause was made at Spring Term A. D. 1864 when one dollar of specie was worth twenty-three dollars of currency such as was then held by your petitioner to be applied in the payment and satisfaction of said decree Your petitioner further showeth that since said decree was rendereth Catherine wife of William Patterson died and that upon her death by the terms of the will (she having left no children living)the personal estate (if any there be) of the estate of his testatrix is held by your petitioner in trust for the use and benefit alone of Mary Jane wife of Malcolm B Stewart [Illegible] and therefore that an order may be made to rehear this decree heretofore made in said cause at Spring Term 1864 of this honorable court and that justice and equity may be done to all parties concerned and interested and that your petitioner may have such other and further relief in the premises as the nature and circumstances of this case may require and to your Honor shall seem meet. May it please your Honor to grant unto your petitioner the State's writ of subpoena to be directed to the said Malcolm B. Stewart and Mary Jane his wife commanding them to appear before your Honor in this Honorable Court at the next term thereof then and there to answer the premises [?] And your petitioner shall ever pray. Giles Leitch Solicitor for Petitioner
North Carolina Richmond County Arch'd Buie the petitioner in the above petition being duly sworn before me John M Cole Clerk and Master in Equity of the County aforesaid maketh oath that the facts stated in the foregoing petition to be of his own knowledge and true and the rest he believes to be true (signed) Arch'd Buie.
Sworn to and subscribed before me this 11th day of September A.D. 1866 (signed) Jno. W. Cole CME (affixed Internal Revenue stamp, value of 50) John Buie
Richmond Court of Equity Spring Term 1867 vs Malcolm B Stewart & Wife Mary Jane: In this case it is insisted that the Plaintiff, or Complainant, has a complete remedy at law, and consequently the Court of Equity will not interfere. The Judgment of which he complained was granted on his own motion, and with his own consent. It is now dormant and cannot (sic) be revived [illegible] in the Superior Court, under the "Ordinance of the Convention altering the Jurisdiction of the Courts & the Rules of Pleading" and there he can show that the consideration was Confederate money and have the debt scaled to it[s] proper value. The Judgment can never hurt him in its present condition. The [Plaintiffs?] are not pressing him for the money. They have not moved in the matter since the Surrender.
It is true Mrs. Mary Jane Stewart, being in need of some money, while her husband was in the war soon after he had collected the money for the negroes, called upon Buie for a few hundred dollars, and he declined letting her have what she wanted, but gave her the pitiful sum of fifteen dollars. The Judgment of a Court should not be disturbed unless there is some immediate necessity for it. If the [Drafts?] in this case had [sued?] out execution and insisted upon the payment of the Judgment in currency or Specie, there might have been grounds for an Injunction Bill, but until some movement is made by the Defendants in this case, I do not see that the Complainant has any just grounds for complaint. Respectfully Submitted (signed) A.R. McDonald [illegible] for Dfts
North Carolina Court of Equity Spring Term 1867 —Richmond County. The demurrer of Malcolm B Stewart and wife Mary Jane, to the Bill of Complaint of Arch'd Buie Plaintiff.
These Defendants by [protestation?], not confessing all or any of the matters and things in said Complainants Bill contained to be true, in such manner and form as the same are there in set forth and alleged, doth demur to the said bill and for cause of demurrer showeth that the said Complaintant has not by his said Bill, made such a case as entitles him in a Court of Equity to any discovery from the defendant or any relief against them as to the matters contained in the said Petition or any of such matters and that any answer that can be made by [illegible] defendants touching the matters complained of in the said Petition or any of [them?] cannot be of any [illegible] to the said Complainant for any of the purposes for which a discovery is sought against the said defendant by the said Petition nor entitle the said Complainant to any relief in this Court touching any of the matters herein complained of. Therefore and for divers[e?] other good causes of demurrer appearing in said Petition these defendants doth demur hereto, and they pray that Judgment of this Honorable Court [illegible] they shall be completed to make any further and other answer to the said Petition And they humbly pray to be since dismissed with their reasonable costs in this behalf sustained McDonald & [name crossed out]
Solicitors for Dft
State of North Carolina Office of Clerk & Master —Richmond County —June 6th 1867 In Equity To Fall Term 1866 Arch'd Buie Excr'te Vs Malcolm B. Stewart & Wife Mary Jane. Petition to hear a decree filed 19th Sept 1866. Spring Term 1867. Order, Demurrer filed set for argument & transferred to Supreme Court. I certify that the accompanying papers are the Original Bill & Demurrer filed in the above entitled cause & that the above is a true copy of notes [in] my office.
Witness Jno W. Coole (sic) Clerk & Master in Equity — in Office at Rockingham this the 6th day of June A.D. 1867 & the 91th of American Independence. (signed) Jno W. Cooler (sic) C.M.E.
North Carolina [illegible] Supreme Court June Term 1868 Arch'd Buie — Extr. agst. M. B. Stewart & wife — Pearson — Ch. J —
This bill is informal in many particulars, and sets out no grounds to support one of its prayers -- to wit, "that an order be made to rehear the decree, heretofore made at Spring Term 1864". For there is no allegation of error in the decree; but we think the decree does set out grounds to support the prayer that "Justice and equity may be done to all parties concerned and interested." For it shows a well founded apprehension if the decree at Spring Term 1864 is allowed to stand, and be enforced, that "Justice and equity" - will not - be done - to the plaintiff. Passing by the informalities, and laying no stress upon the fact that the want of a little attention on the part of members of the bar subjects this Court to great trouble and perplexity. - We are of opinion if the allegations of the bill are true, as is admitted by the demurrer, the plaintiff does show grounds on which he is entitled to relief. We consider the bill as "a supplemental bill, in the nature of a bill of review "to set aside -- or correct a decree; on the ground of new matter - arising after the decree was made. - The [illegible] for distinction upon which the account was stated and the decree made, consisted of Confederate Notes, for which the personal estate, mostly slaves, was sold at high figures in 1868, and upon this basis the plaintiff is charge with $1186.75 to Patterson and wife, and $974.44 to Stewart & wife, to all of which by the death of Mrs. Patterson, Stewart and wife are now entitled, under the decree made Spring Term 1864. The new matter alleged is the fact, that Patterson and wife and Stewart and wife, did not call for or receive the amounts thus decreed to be paid to them, in Confederate Notes and thereupon the plaintiff consulting their interest, converted [the] funds into interest bearing Confederate Notes, which he still holds in hand, and is ready to deliver -- but these notes by the result of the war; are now of no value: - and the plaintiff fears it is the intention of Stewart and wife to force him to pay in the present currency, the amount which appears to be due by the [face?] of the decree. The plaintiff also alleges in support of his equity the fact that the sale of the slaves, was left in his discretion, and if he had not sold them, the effect of the emancipation of 1865, would have subtracted that part of the fund, to wit, $5709, which would have left nothing for distribution; and thereupon he insists, that it is against [conscience?] for Stewart & wife to hold up the decree in equity, to - have the decree set aside altogether, or at least to have the accounts reduced by the scales, adopted by the act of the legislature. As the demurrer admits these facts, a bare statement is sufficient to show manifest equity in favor of the plaintiff -- The Demurrer must be overruled.
Archd. Buie Excrte Vs Malcolm B. Stewart & Wife Mary Jane. Petition to rehear decree To Fall Term 1866 Transcript
North Carolina Supreme Court January 1870 —Archibald Buie Executor of Christian D. Calhoun Decree against Malcolm B. Stewart & wife, Mary Jane
An opinion having been filed in this cause at a previous time of this Court that the demurrer in this cause heretofore filed must be overruled., it is therefore considered, adjudged and decreed that the Demurrer be overruled , and that the case be remanded to the Superior Court of Richmond County, to the end that the defendants may answer this Bill, otherwise the plaintiff will be entitled to Judgment pro confesso against them. It is further ordered and adjudged that the defendants pay the costs in this Court incurred.
[illegible] this copy. Test: WH Bagley, Clerk per John [illegible] McInnis, Dept. Clerk
Additional Note: An undated document in the estate file of Christian D. Calhoun (CR 082.508.7) would seem to indicate that, in addition to "perishable property" and slaves, Mrs. Calhoun also left 342 acres of land, presumably in Richmond County, NC, and that this land was divided more or less equally between Malcolm B. Stewart and William Patterson. According to Frank Jernigan, Mary J. came to the US from Scotland as a young girl. Her mother was barely able to speak English. However, the 1850, 1870 and 1880 census all show that MJ, her mother and her father were all born in NC. Malcolm and Mary Jane are buried side by side in the Stewartsville Cemetery. According to Joe McLaurin of the Richmond Co, NC Historical Collection,"You asked about divorce in North Carolina prior to 1900. Until 1814 only the General Assembly could dissolve a marriage, and generally only on certain specific conditions and allegations. Even then they appear to have been reluctant to do so. The conditions under which one could petition for divorce were so restrictive and severe that the party seeking divorce either had to delay filing a petition until the other partner committed one or more of the offenses which served as grounds for requesting a divorce... or file a petition setting forth a listing of terribly scathing accusations... the more accusations listed in a petition the better, true or not. There is one situation I am familiar with in which the petitioner almost yearly petitioned for divorce over a period of twenty years before, finally, all accusations could be claimed. Following 1835, however, authority to grant divorce moved from the legislature to the state Superior Courts."
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