Martha Washington's 'Stolen' Will

It Took More Than Half a Century
and the United States Supreme Court
With a Loud Threat of Renewed Sectional Strife
for Fairfax Court House to Win Document
From Clutches of J. P. Morgan

By Rex Collier

The Supreme Court has been called upon to decide grave questions of late--but none so momentous as that started by a company of Union soldiers when they raided the courthouse at Fairfax, Va., in 1862 and "stole" Martha Washington's will.

How that wartime incident almost precipitated another war half a century later as the outgrowth of a bitter struggle between proud Virginia and the aristocratic John Pierpont Morgans--father and son--is revealed in an old legal report just come to light.

A vivid account of the controversy has been given by John Garland Pollard, former Governor of Virginia and now chairman of the Federal Board of Veterans' Appeals in Washington, who, as Attorney-General of Virginia, led a gallant fight to wrest Martha's will from the Morgans, into whose hands it had come by devious route.

Pollard said the dispute reached the Supreme Court as the case of "The Commonwealth of Virginia vs. John Pierpont Morgan."

That suit was steeped in adventure, sentiment and a variety of heavy emotions.

The story starts with the capture of Fairfax by Union troops known as the Blenkers, notorious for their wanton vandalism. The raiders broke into the clerk's office at the courthouse, opened the safes and strewed their contents over the floor in quest of valuables.

Into this scene of disarray and confusion walked Lieutenant-Colonel David Thomson, commanding the 82nd Regiment, Ohio Volunteer Infantry, who had been assigned the courthouse as his headquarters.

Some of Colonel Thomson's men had preceded him to "ready the place up." They were shoveling old documents, books and boxes into a big stove to kindle a fire when the colonel entered.

Colonel Thomson immediately called a halt to these activities, cleared the room of soldiers and got down on the floor to examine the musty old papers piled in front of the stove.

Colonel Finds Will in Fuel Pile

Most of the papers were old deeds, title records and the like of no special interest. Finally he came to a document, the opening phrase of which electrified him. He read:

"In the name of God Amen: I, Martha Washington, of Mount Vernon--in the County of Fairfax, being of sound mind and capable of disposing of my Worldly Estate, do make Ordain and declare this to be my last will and Testament, hereby revoking all other Wills and Testaments by me heretofore Made...."

 

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Signature Indited in 1800

He pored over this will for some time and, examining the final page, found Mrs. Washington's quaint signature affixed to it under the date of September 2, 1800, with notations anent its recording as of June 21, 1802.

Colonel Thomson retained possession of the will until his death 30 years later. Just before he died he gave the document to his daughter, Mary Espy Thomson, with the comment that she could keep it or dispose of it in any way she might see fit.

Meanwhile authorities of Fairfax County had been conducting a widespread investigation in an effort to ascertain if the will had been destroyed or, as was frequently rumored, had been stolen and taken North. From time to time there were published reports of advices by mail to the effect that Martha Washington's will was in possession of this, that or the other person in sundry localities. Definite proof of the will's survival always proved lacking.

The report recently reviewed by Pollard points out that in 1908 R. Walton Moore, now assistant Secretary of State, learned that the elder Morgan had purchased the will from Miss Thomson and had added it to his collection of historical manuscripts in the Morgan Library. Moore, a resident of Fairfax and a leading attorney, notified C. V. Ford, Commonwealth's Attorney, and the latter brought the matter to the attention of the county Board of Supervisors.

Ford wrote two letters to Morgan asking for return of the document on the grounds that it was the legal property of Fairfax County and had been stolen by vandals during the war. Morgan failed to reply to either communication.

In 1913, after the death of the elder Morgan, the Fairfax Chapter of the Daughters of the American Revolution sent the following appeal to his son:

"Since the death of your lamented father the statement has appeared several times in the press that among the valuable papers in his collection was to be found the will of Martha Washington. This will was stolen from the records of Fairfax County during the War Between the States. Its loss has been deeply deplored by the Washington family, the State of Virginia and the County of Fairfax.

"The will of George Washington was miraculously preserved from the vicissitudes of the same war. It is among the archives of Fairfax County, and is kept in a fireproof apartment of the clerk's office. It is an object of much reverence and interest, and many persons make the pilgrimage to this small Virginia village to see the will of the Father of His Country.

"Surely there is no repository as appropriate for the will of Martha Washington as an honored place by her husband's will among the records of that Virginia county in which they lived and died. If this will is in your father's collection of historical papers, I most respectfully and earnestly request you to return it to the people of Fairfax County, and assure you that your generous action in so doing will be acclaimed by our entire Commonwealth.

"Yours with great respect,
MARY GRIMSLEY BARBOUR
"Regent, Falls Church Chapter, D.A.R."

 

Morgan was in Europe at that time, but upon his return to this country some weeks later Mrs. Barbour received from Morgan's librarian a brief note regretting that "Mr. Morgan is unable to accede to your request" and adding: "Mr. Morgan desires me to say that he will be glad to have this will photographed and send you a set of such photographs, if you so desire. He would appreciate the return courtesy of a photographic reproduction of the will of George Washington, which is deposited in the archives of Fairfax County."

Governor Stuart Make Official Demand

The good ladies of the Fairfax D.A.R. were incensed at this response. In the first place, they felt Morgan should have had the courtesy to make a personal reply to their letter. In the second place, his offer of a photograph of a will which belonged to Fairfax County, was, they contended, an insult to the intelligence of Virginians. Here was a man--a "Northerner" at that--who admitted he was in possession of "stolen property" and who brazenly declined to surrender it to its rightful owners.

There were indignation meetings in the homes of leading citizens and at the courthouse. It was decided to take the matter to the State Legislature, then in session. Barbour assisted in drafting a bill authorizing the Governor of Virginia to make formal demand on Morgan for return of the will and providing that if Morgan refused, legal steps should be taken before the United States Supreme Court to compel restitution of the document to the Fairfax archives. The bill was passed with a show of grim determination.

Governor H. C. Stuart thereupon sent the president of the New York State Southern Society to call on Morgan in an effort to mediate the dispute. Morgan was obdurate. The Governor followed this with a letter of conciliatory tone, expressing the hope "that some happy adjustment of the matter may have occurred to you which will be satisfactory to all parties concerned."

To this letter Morgan made personal reply, couched in cordial language and making certain proposed concessions.

"In regard to the will," he wrote, "I have only one desire, which is that the document should be where it can be best preserved and of most use to the people of the United States. I am sure that this is also the desire of yourself and of the Commonwealth of Virginia. I therefore venture to make the following suggestions:

"The Fairfax County courthouse, from what I am informed, is not fireproof, nor are documents there kept in such a way as to make them available to any large number of people. I also understand that the original will of George Washington is at present stored in that courthouse.

"I suggest, therefore, that the Commonwealth of Virginia, or Fairfax County, should direct the keeper of the documents in the courthouse to place the original will of George Washington on exhibition at Mount Vernon for an indefinite period, where it will be available for the instruction of a large number of people, and where it will have the benefit of the great care and protection against fire now given to Mount Vernon. If this were done, I should be glad to present the will of Martha Washington to the Mount Vernon Ladies' Association for permanent exhibition there. By this arrangement the two documents would be together at the place where they were made and where a great number of people will have the satisfaction of seeing them.

"Should the Commonwealth of Virginia not be willing to do this, because of the well known fact that Mount Vernon itself is not fireproof, though such excellent care is taken to prevent accidents, then I propose that the Commonwealth should present the will of George Washington to the Library of Congress, to be forever kept with the public records there; and I should present the will of Martha Washington to the nation for the same disposition.

"It seems to me that the bringing together of the two documents is of interest and importance. If they are placed at Mount Vernon they remain in Fairfax County and would be given as good care as possible there; if they are placed in the Library of Congress they leave the Commonwealth of Virginia, but, on the other hand, they would be in the custody of one of the great libraries of the world and in a place that belongs to the whole nation.

"It seems to me that either arrangement would be quite appropriate, and I shall be pleased indeed to do my part in carrying out whichever of the two would be most satisfactory to the Commonwealth of Virginia."

Morgan's Proposal Finds Virginian's Cold

Morgan's proposal was received with utter lack of enthusiasm. Governor Stuart replied that "the suggestion does not meet with the view of the people I represent." He pointed out that the clerk's office at Fairfax was in a brick structure and that the will would be kept in a fireproof vault. The Governor said he would ask the Southern Society head to confer again with Morgan with a view to arriving at a satisfactory settlement.

Morgan's answer to this letter was curt. It expressed his regret that Virginia did not see fit to accept the proposition and asserted that Morgan was "at loss for additional suggestions."

Governor Stuart then went to New York City and, in a personal interview, sought in vain to induce the millionaire to give up the will.

On July 15, 1919, Governor Stuart made formal demand on Morgan for return of the will, in pursuance of instructions of the Legislature.

Morgan respectfully but firmly refused to surrender it.

Pollard promptly filed in the Supreme Court a petition setting forth:

That Martha Washington's will was "a chattel which has such special, extraordinary, uncommon and unique value that it cannot be replaced by means of money."

That the will was "illegally abstracted from the possession and control of the Commonwealth of Virginia and has come into the possession and control of the said defendant, John Pierpont Morgan, although he has not title to it."

That said defendant had been duly requested to return the will, but had refused.

That the Supreme Court therefore should enjoin said defendant from disposing of said will and should require him to deliver it to the Commonwealth of Virginia.

The Supreme Court several months later ordered Morgan to file an answer.

Morgan engaged legal talent and prepared to defend himself before the high court. Pollard engaged assistants on behalf of the Commonwealth.

As the proceedings developed it became apparent that major legal questions were involved in the controversy--concerning the status of the States during the war of '61-'65.

"Perhaps," Pollard said recently, "the court would have been called upon to decide whether Virginia's secession put her out of the Union and, therefore, deprived her of protection of the Constitution."

Constitutional lawyers informally debated the repective merits of Virginia's claim and Morgan's rejection. While citizens generally seemed unaware of the serious questions which loomed for possible decision by the Supreme Court, there were rumors that members of the court and other high officials having the welfare of the nation at heart were deeply concerned over the prospect of a reopening of long dormant internecine strife.

Morgan Surrenders; Fear Sectional Feeling

Morgan, himself, became disturbed at the turn which the controversy was taking. From a dignified legal battle over personal rights the suit fast was developing into another North-South conflict of vast implications.

Two weeks before the date fixed by the Supreme Court for Morgan's reply to Virginia's suit, the New York financier, after final consultation with his attorneys, ran up the white flag to signify her surrender.

Morgan's dignity was preserved in the surrender. Disdaining to communicate his peace proposal to Virginia's Governor, Morgan called in his good friend, Fairfax Harrison, and asked him to deliver the will and an explanatory letter to Judge James Keith, president of the Virginia Supreme Court of Appeals.

Judge Keith replied: "Much, doubtless, has been said and written which must have distressed you and excited a spirit of resentment but you have risen to a higher plane and viewed this subject in a spirit of generosity and manganimity which I am sure, will be appreciated by the Governor of Virginia and the people of this Commonwealth."

The justice delivered the will to Governor Stuart with the suggestion that it be held until the Legislature could meet and act on Morgan's proposal that the document be placed in Washington's home at Mount Vernon.

Fairfax Held Out for Return of Will

Fairfax County, however, insisted that the will be returned immediately to its courthouse. The Board of Supervisors of the county wrote Governor Stuart that the Legislature already had voted that Fairfax County was entitled to the document and the Governor was advised to surrender the will and "avoid further litigation."

Governor Stuart thereupon asked the then Attorney-General Pollard for an opinion regarding the demand of the Fairfax authorities. Pollard replied that the act of Legislature was a mandate on the Governor to return the will without delay to Fairfax County.

The Governor handed the will to Pollard, who proceeded with it to Washington, where he appeared before the Supreme Court, will in hand, and asked the tribunal to dismiss Virginia's suit.

The members of the court displayed keen interest in the will, and after Pollard's request had been granted, the justices announced an adjournment and retired to their chambers, where they examined the old document for several minutes.

Pollard then took the will to Fairfax and turned it over to Frederick W. Richardson, county clerk.

Martha's will now reposes beside that of her husband in a glass-topped case in the clerk's office at Fairfax Courthouse.