Rough partial transcription of record of case:

Bill of complaint in Chancery case:

The State of Maryland to Wit
At a Chancery Court began and held at the City of Annapolis on the third Tuesday in December one thousand seven hundred and ninety five

Be it remembered that heretofore to wit, on the ninth day of March 1793 came into the State of Maryland's High Court of Chancery Thomas Simmons by Priscilla Simmons his gaurdian & next friend and Exhibited his bill of complaint against Susanna Hill and Sarah Noble (formerly Sarah Hill) in the words following to wit:

To the Honorable Alexander Contee Hanson Esquire Chancellor of Maryland

Humbly complaining sheweth unto your Honor your orator Thomas Simmons, by Priscilla Simmons his gaurdian & next friend (your orator being an infant under the age of eighteen years) That Charles Drury of Prince George's County deceased, being in his lifetime seized and possess of a considerable real and personal estate on or about the twenty seventh day of August in the year of our Lord 1740, duly made and executed his Last Will and Testament in writing, whereby among other things, he devised to his Daughter Sarah Drury and the heirs of her body Lawfully begotten forever all the land which he held between the main road that goes to the Branch called Mattapony Branch and the main Branch called Mattapony Branch, called Drurys adventure &c as by reference to said will, a copy whereof marked [p. 2] No. 1, made part of this bill and herewith exhibited may more fully and and at Large appear.

Your orator and his guardian  and next friend aforesaid further shows that the said Charles Drury the Testator died soon afterwards in the same year aforesaid, and sometime in the year following the aforesaid Sarah Drury the devisee intermarried with Abraham Simmons of Ann Arundel County by whom she had two Children, viz a Daughter named Bethridge Simmons and a son named Abraham Simmons who was the father of your orator [i.e. Thomas]. That the aforesaid Abraham Simmons grandfather of your orator [i.e. Thomas] sometime in the year 1745 departed this life, have first duly made and executed his last will and testament in writing, whereby with the consent of his wife Sarah, devisee of Charles Drury, as herein before stated he Devised the land herein before specified to his two children Bethridge and Abraham Simmons & their heirs forever Equally to be divided between them; and by the same will the said Abraham Simmons, in consideration that his said wife had consented to the aforesaid devise to Bethridge and Abraham Simmons did devise to his said wife all his personal Estate; and constituted his Whole and sole Executrix of his said will and did thereby appoint his two Brothers in Law Charles Drury and William Tillard Trustees to see his said last will and testament hereby executed, as by reference to said will a copy whereof, marked no. 2 made part of this Bill...

He Further shews that the said Sarah too upon herself the Burthen of the Execution of said will...returned an inventory in the year 1746, to the amount of six hundred and ninety three pounds nine shillings maryland currency...about four years afterwards she returned an additional inventory, with Abel Hill with whom [p. 3] she had intermarried, to the amount of two hundred and forty one pounds seven shillings & six pence...one half of which said sum by the will of the aforesaid Abraham Simmons belonged to his two children Bethridge & Abraham Simmons beforesaid; He further shews that he has been informed and believe to be true, that there was a considerable sum of Sterling money due to the Estate for tobacco shipped and which was received by the aforesaid Hill, of which no account appears to have been rendered, and he possess the whole personal Estate aforesaid until the time of his death which happened in the year 1758, that previous to his death he duly made and executed his Last will and Testament in writing by which after having devised away a considerable estate, all of which he acquired during his marriage aforesaid he constituted the said Sarah his wife whole and sole Executrix thereof and directed by his said will in a particular manner, that your Orator's [i.e. Priscilla] father Abraham Simmons and Bethridge Simmons beforenamed should be paid without [?].

Your Orator further shews in manner aforesaid that in the year 1760 or thereabouts, Charles Drury surviving trustee under will will of Abraham Simmons herein before mentioned purchased of the Late Kensey Johns two tracts of Land in Anne Arundel County called Birkheads parcel and Burkheads Meadow containing six h hundred acres or thereabouts and knowing the intention of his said sister Sarah Hill to provide for her sons Abraham Simmons he recommended to her to dispose of the Land in Prince George's County entailed on her and the heirs of her Body by the aforesaid will of her father Charles Drury and to purchase with the money arising from [p. 4] the sale thereof about one half of the Land which he had purchased as aforesaid from Kensay Johns , the same lying more convenient for her some Abraham Simmons, your orators father in Lieu of the said Lands in Prince Georges COunty which would have devolved on the said Abraham on the Death of his mother; and the said Sarah Hill upon consulting with her said Brother who was desirous of seeing the will of the said Abraham Simmons carried substantially into effect, did Consent to sell the Lands in Prince Georges County and purchase a part of the Lands brought afore said by Charles Drury of Kensay Johns, for her son in Lieu thereof,  and the said Sarah Hill in pursuance of such her determination some time in the year 1761 suffered a Common recovery of the said Lands in Prince Georges County and disposed of them and conveyed the same to William Bowie of said COunty, and agree with the said Charles Drury for the purchase of Birckheads Parcel containing about three hundred acres in Anne Arundel County for her said son Abraham Simmons, your orators [i.e. Priscilla] father who was accordingly put in possession of the same on his arrival to full age which happened in the year 1765; that the Charles Drury paid the full consideration for the said Lands, but the said Kensay Johns Dying before any conveyance was made of the said Lands either to Charles Hill who purchased the same of to the aforesaid Sarah Hill, or the said Abraham Simmons for whom the same were purchased, a bill was filed in the Honorable Court against Susanna Johns widow and RIchard Johns heir at law of the said Kensay Johns in order to obtain a Decree for a Conveyance of the said Lands and a Decree was obtained but no deed was executed in the lifetime of the said Sarah Hill or Abraham Simmons, the said Sarah Hill conceiving as your orators believe that nothing more was necessary after a Decree wa obtained.

He further shews as aforesaid [p. 5] that the said Sarah intending and considering that the said Land called Birkheads parcel as her son Abraham's property, and the said Abraham believing it to be his own made sundry valuable improvements thereon & lived [] using it as his own until the time of his Death which took place in the year 1782; and he further shows  that sometime in the year 1777 a further agreement took place between the said Sarah Hill and her son Abraham Simmons respecting the said Land, and the said Sarah being desirous to confer [confirm? confer in?] the title to the said land in her son Abraham, applied to the Late Reverend Walter Macgowan to draw the writing and make a settlement between them; and the said Sarah Hill not having a Deed for the said Land the said Walter Macgowan recommended that she should make her last will and devise the land  to he son and his heir sin fee simple; and in consideration that the said Sarah Hill did agree to devise the said Land to her said Son & his heirs in fee, and that they should hove a good title to the same, the said Abraham agree to relinquish all his part of his fathers personal estate then in his mothers possession which was considerable, and with the intrest calculated thereon from the time it became payable to him amounted to upwards of 600 & 50 pounds current money; and it was so finally agreed between the parties; and the Reverend McGowan was requested to draw her will, and the said agreement, which being done the witnesses were prepared and the said Sarah Hill did on the 7th day of May 1777 in due form of law make and execute her last will and testament in writing, whereby among other things she did devise to her son Abraham Simmons your orators [i.e. Priscilla] father and his heirs forever the tract of land aforesaid then in the possession of her said son called [p. 6] Birkheads Parcel, by the name of Birkheads Meadows, and Birkheads Parcel containing three hundred acres in execution of the agreement aforesaid, and the said Abraham Simmons did on the same day and year in execution of the said agreement sign seal & Deliver an Instrument of writing in the presence of witnesses relinquishing to his said mother all his part of his fathers personal estate a copy of which is in you orators possession and the same is couched in the following words, to wit:

    "Know all men by these presents, that whereas my beloved mother Sarah Hill hath by her Las Will and testament of this date, given me her son in fee simple in a tract of Land known by the name of Birkheads Meadows and Birkheads Parcels; In consideration whereof I do hereby relinquish all claims whatsoever to any part or parcel of my Fathers estate which I now have against my fathers estate by Virtue of my fathers will, in witness where of I have hereunto set my hand and and affixed my seal this 7th day of May AD 1777."

Which said will and agreement were by consent of the said Sarah Hill and Abraham Simmons Placed in the hands of the said Walter Macgaoan who was requested to keep the same; and who your orator believes did keep the same until the death of the said Abraham Simmons which appeared as herein before stated in the year 1782 and what became of the said will your orators does not know. He further shews that the said Walter Macgowan is since dead and the said Sarah Hill is also deceased and since her death, an Instrument of writing purporting to be his Last will and Testament has been delivered? into the office of the Register of Wills of Ann Arundel County which is made as aforesaid on the 7th day of May 1787, in execution of the agreement aforesaid with her said son Abraham Simmons, by which said will last [p. 7] mentioned has been made, if made at all by the said Sarah Hill (who was unlettered) your orators conceive was fraudulently made and obtained; and that the same ought to be decreed by this Honorable Court to be null and void for the reasons herein before stated; a copy of which said will is herewith exhibited, marked no. 3, which the Land wherein your orators [i.e. Priscilla] farther lived at the time of his death and which he had contracted for in manner aforesaid, & paid for with his share of his Fathers personal estate; is devised to Susanna Hill and Sarah Hill, two of the daughters of the aforesaid Sarah Hill deceased & since the death the said Sarah Hill the Elder, her daughters Susanna and Sarah have prevailed on the aforesaid Richard Johns to convey the said Land to them, and have instituted an action of ejectment in the General Court against Priscilla Simmons your Orator's [i.e. Thomas] Mother to recover the possession of the said Land. And your orator being advised that his title at law to the said land cannot be supported and that Judgment for possession will be rendered against him at the next or subsequent term, and that he is only and properly returnable in this Honorable Court where fraud is investigated and where agreements are decreed to be carried into effect, and where matters of the nature of this his care are properly cognizable. To the End therefore that the said Susanna Hill and Sarah Noble (Formerly Sarah Hill which Sarah has intermarried with Anthony Noble of Anne Arundel County) and Anthony Noble may be upon their Corporal oaths true full and distinct answers make to all and singular the matters & Things herein before stated...that the instrument of writing aforesaid purporting to be teh Last Will and Testament of the aforesaid Sarah Hill be decreed to be fraudulent and null and void, that the said Susanna Sarah and Anthony be directed and compelled to convey the said land [p. 8] called Bairkheads Parcel to your Orator in fee simple by a food and sufficient Deed, that the said Susanna Sarah & Anthony & their heirs and assigns may be perpetually enjoined from suing out any tract of possession or other writ of execution on any judgment which may be obtained for the land aforesaid on the ejectment aforesaid, and that your orator may have such other and further reliefs on the premises as the nature of this case doth or may require....

G. Duvall for complainants

Answer of defendants, by their attorney Philip Barton Key:

...they admit that Charles Drury being seized in fee of two tracts of Land in Prince Georges County the one lying on Mattapony Branch, the other called Drurys Adventure devised the same in fee tail to his Daughter Sarah Drury who afterwards intermarried with Abraham Simmons, the grandfather of the complainant [i.e. Thomas].

They admit that Abraham Simmons the Grandfather died in 1745...but they are informed and believe that he he had no power or authority to devise his wife the fee tail Lands that or that she ever consented thereto.

...

These defendants further admit that Charles Drury brother to Sarah Hill in 1760 purchased of Kensay Johns two tracts of Land lying in Anne Arundel COunty, viz.. Birkheads Parcel and Birkheads Meadows, containing 600 acres; but they positively deny that the purchase was made as trustee of the will of Simmons, but as they are informed it was made solely on his own and his sisters account, with his own and her money...and they deny that Charles Drury recommended his Sister to sell her entailed lands for the puropose of providing for her son Abraham Simmons by purchase of lands in Anne Arundel County...these defandants have been informed and believe that Sarah Hill and her son Abraham Simmons were not on good terms and that she barred the entail of her maiden lands by a common recovery in 1761 to prevent the descent thereof to her said some and to enable her to purchase lands from her brother [Charles] Drury which she might dispose of to such of her children as should behave with most duty and affection.

...

[Abraham Simmons] improvements [on the land] consisted of a small welling house never furnished [p. 3] in the building of which she [Sarah Hill his mother] much assisted in the funding of workmen besides advancing money; and of the Tobacco houses built in lieu of one which burnt down while Abraham lived there and therefore replaced it.

Court appointed commissioners to settle the dispute. Commissioners took a number of depositions, April-Sept. 1794. Jerningham Drury deposed and produced letter showing Priscilla's efforts to get a settlement with Abel Hill (probably the son of Sarah Hill (nee Drury nee Simmons).

Chancellor issued decree on 25 Jan 1796:

The first thing which forcibly strikes his mind is this: the complainant praying the benefit of a contract, or transactions between Sarah Hill and Abraham Simmons does not state that he is either heir or devisee. The Defect of the bill is not supplied by the answer; nor does it even from the testimony appear, that he is either heir or devisee of the said Abraham Simmons under whom he applies for relief.

That the said Abraham Simmons had an equitable claim to the Lands in question arising form the will of his father Abraham, and the conduct of his mother relative to that will is a point relinquished with much candor and propriety on the part of the complainants.

Supposing then the Bill amended &c and the Complainant heir at law of Abraham who died intestate. Supposing then a fair honest agreement made thro Magowans agency between Abraham and Sarah Hill, his mother, in consequence of which he released all claim to this fathers personal Estate, and she executed a will, attested as it ought to be, devising unto him and his heirs, suppose that will not to have been canceled, destroyed or revoked, bye the Testatrix in as much as the device did before the testatrix nothing could pass by that will to his heir. The device was absolutely void and it was unnecessary for Mrs Hill, if she did not chuse to die intestate as to the land, to execute another will. When an agreement is fairly made, and every article of it performed, what more is incumbent on either party? To give effect to what ought to be construed the intent.

If the full execution of a contract, according to its letter does not operate so as to give every advantage, which might in case of subsequent events proving different, have been [devised?] to one of the parties, is this court to direct the other to do, that which ought in prudence or justice to have been stipulated? It is construe the will to have been not only an Irrevocable Instrument but an agreement, that, in case Abraham should not be the Longest [], his mother should construe, that his heirs and divisee after her death should have a fee in the land. If so the will amounted to an agreement to make just so many will as circumstance should require as for a deed, to settle the land according to the spirit of the contract--it will scarcely be concluded that, if, after the execution of the will and release, in consequence of the agreement, Abraham had filed a bill here for relief, he might have obtained a decree obliging her to convey. The depositions taken on the COmplainants part tend to prove that she actually prescribed in a refusal to settle the Land by deed.

There is no direct Testimony respecting the agreement which is said to have been brought about by Mr. Magowan, and to have been produced the will & release. Let the declarations be taken for evidence; and they do not prove this intention of the parties to go beyond this "Mrs. Hall shall execute a will devising the Land to Abraham & His heirs, in Consideration thereof Abraham shall execute a release of his claim to his part of his fathers personal estate. Both instruments shall be delivered to Mr. Magowan if Mrs Hill shall die without revoking her will, and it shall take effect their release shall be delivered to her representative. The Difference between mother and her son will thus be properly adjusted."

This is certainly the most rational idea to be formed from the testimony and the conduct of the parties has no small tendency to confirm it. THe will was given up to the testatrix when it could not possibly avail; and the release was delivered to Abraham's representatives.

Dispensing then all supposed equity arising on the will of Old Abraham or on the will of Mrs. Hill and the release of her son Abraham it remains to inquire whether at any time, Mrs. Hill made such a Contract for vesting in her said son a title to the Land as this Court ought to carry substantially into effect.

No writing which contained such a contract has been either produced or alleged. She desired it seems certain persons to be an witness that the eLand was purchased for her son. She certainly did not, by that alone, bind herself to convey. But it is said that she entered into a verbal agreement with her brother who undertook for ABraham (then a minor), to give him the Land, in consideration of his relinquishing the claim aforesaid; that she having given him possession of the land, which he used and improved as his own until his death; and he having executed a release, there could be no doubt that the case is that of an agreement by [], which this court ought to execute.

The great object of the act to prevent frauds and perjuries was to provide that agreements be made with Deliberation, to prevent misconception of agreements, and to prevent men from settling up agreements which never had been made. It is admitted, that when a fair, honest verbal agreement for the sale of Land is alleged in the Bill and admitted in the answer; or when it appears clearly that such an agreement has been made and has been performed on one part, or something has been done in pursuance of it this court will decree a conveyance, [], or on the proper Terms.

But what is the present case? Suppose [] a parcel. Agreement established between Mrs. Hill and her brother acting for her son; that such an agreement was binding on her altho certainly not binding on her son or on her brother. It is proved that she agree to convey a fee to her son. It is clearly proved that she put him into exclusive possession of the whole land, or that he ever effectively relinquished his claim to his part of his father's personal estate? That he did sign [arebase?] which was not delivered to Mrs. Hill, but to Mr. Magowan, is in deed sufficiently proved by the Testimony, which proves also that it was done in consideration of her executing a will and not in pursuance of a former agreement. Are all transactions to be considered together, and one certain, honest, fair agreement to be collided from the whole? By no means. The inference, to be drawn from the whole is this: That such an agreement was often in contemplation but never actually concluded, otherwise then was done thro Magowan's agency.

...an effectual agreement was never made, and that Mrs. Hill pertinadously resisted all solicitations or attempts to part with her control, or to give (as is the favorite phrase of persons in her situation) the staff out of her own hands....Her devises are now called upon to complete the performance of this agreement, by a conveyance. Shall this court give all the benefit of a contract to one party without seeing the consideration stipulated for by the other party? Does is appear that Abraham effectively relinquished his claims? Can the Court in this case, direct such a release...as will prevent recovery of the personal estate ...It surely cannot direct a release...and it doe snot appear from the papers, nor is it probably the fact, that the complainant is the sole representative on whom the personal rights & claims of his father have devolved...

How often is it necessary to repeat, that when a contract is established even by admission, it is still a matter of sound desecration whether or not, under all circumstances, a performance shall be decreed.

That Abraham Simmons was harshly and capriciously treated by his mother is extremely probable. But a similar treatment is often the lot of meritorious children whom this court has no power to protect.

Upon all the circumstances of this case, it is this twenty fifth day of January 1796, by Alexander Contee Hanson Chancellor and by the authority of this COurt adjudged, ordered & Decreed, that the injunction heretofore issued in this cause be dissolved; that the bill of the complainant Thomas Simmons, be dismissed; and that the Defendants Susanna Hill and Anthony Noble and Sarah his wife, be also hence dismissed but without costs.

ACHanson, Chancellr.

Appeal filed, December Term, 1795; Agreement reached 13 June 1797:

It is admitted...that Thomas Simmonds the Complainant in Chancery and Appellant in this court is the eldest son and heir at law of Abraham Simmonds the son of Abraham Simmonds and Sarah his wife afterwards Sarah Hill in the Bill of Complaint and other proceedings in this cause mentions. And that this fact shall be so taken and considered by this court...