The 1846 Last Will of John Sutton—What’s Not So New in Will Drafting and Contests

By Terrence M. Franklin

© 2018 University of Miami School of Law.  This material was prepared for the 52nd Annual Heckerling Institute on Estate Planning sponsored by the University of Miami School of Law, and published by LexisNexis. It is reprinted with the permission of the Heckerling Institute and the University of Miami.

Introductory Remarks

ALAN F. ROTHSCHILD, JR.: Our final presenter this afternoon, Terry Franklin, is a partner in the Los Angeles firm of Sacks, Glazier, Franklin & Lodise where he works primarily in the trust and estates litigation area. Terry serves in a number of leadership positions within ACTEC and has also served in a variety of significant roles in the ABA section of real property trusts and estates law. Terry is one of my oldest friends in the trusts and estates Bar, so it’s a pleasure to welcome him to the podium today for his uniquely personal presentation on The 1846 Will of John Sutton. Welcome, Terry.

TERRENCE FRANKLIN: Thank you, thank you Alan.
I like to think of myself as one of Alan’s longest friends, not necessarily oldest friends, but I’ll take what he’s got.

It’s always a challenge to follow someone like Martin with the wonderful accent that he has, but he is what he is, and that’s what I’m going live with.

Thank you all for having me here. I’m excited to be able to tell you this story that is personal to me but I think it also has a lot of relevance for those of us who are trusts and estates litigators, estate planners as well because it deals with issues that I think have existed for 170 years or longer, some of the parallels that existed in the past with things that we are still doing today.

The 1846 Last Will of John Sutton

But this story is about the fact that my great, great, great, great grandfather, John Sutton, who was a white farmer in Jacksonville, Florida, in Duval County, owned my great, great, great, great grandmother whose name was Lucy. And he created a will in 1846 which emancipated Lucy and her eight children and her six grandchildren who were all described by age in the will, the document that John executed.

It was prepared by a drafting lawyer whose name was Gregory Yale and I’m going to tell you something about that as this presentation begins.

Now, my interest in this particular area really came about in a very unusual way. I’ve been practicing trusts and estates law since 1992 and I’ve been doing litigation throughout that period. And it wasn’t until 2014 that I discovered that there was actually a will contest in my very own family.

The way that it came about was we had a family reunion. And like a lot of African American families who are disconnected or not associated with the families as a result of slavery, the great migration, other situations that have caused us to be apart from one another, we have family reunions from time to time that bring us altogether.

So we had a family reunion in 2001 and at that time there was a document that was included in our family reunion materials that consisted of a typewritten piece of information that was essentially an excerpt from a document that was recorded in Southern Illinois.

Now, the document was typed up with a script in something like an IBM Selectric-type font. For those of you who are old enough to remember what that was like, you’d put in a font element and that was the way you changed it to make it look a little bit different. And people would often do this as a way of trying to create the idea that there was something that was in script, handwritten, for example.

In our case, someone had typed up this piece of information that said that John Sutton, being of sound mind and disposing, but infirm in body, had determined to create a will and he owned certain property. Now, the will identified horses, about five hundred cows, household property and appliances.

So the document that was found in Southern Illinois specifically described the fact that John Sutton had created this document and that he had named a person named William Adams to be his executor.

William Adams had seen to it that the family had made their way from Jacksonville, Florida, to Illinois. And by that time he was able to proclaim them to be free and able to live in perfect freedom.

I began trying to find the copy of this will because I had a great aunt who was turning 100 in 2014. And she lived in Southern Illinois and I knew that we wanted to do something special to commemorate her birth and her life because she had been so significant to all of us. She had actually walked four and a half miles each day to get to college in Southern Illinois University. She had been married to a Tuskegee airman and she actually traveled with him to Tuskegee when he was about to ship off and she taught children of other Tuskegee airmen. In any event, I began looking for this will and I opened my ACTEC directory and I started calling around to try to find somebody in Duval County who could actually help me out with finding a copy of the will.

And the first person that I called was a lawyer who returned my call and she said there was a fire in Jacksonville in 1901 that destroyed all records. “You’re not going to find anything. It was the great fire of Jacksonville. So that’s too bad.”

But I also called someone else and I explained to this paralegal who was working with a Tim Flanagan who was a lawyer there. And I told her about my great aunt and how I wanted to celebrate her birthday and she said, “Let me see what I can do.” So this was the week before I was going to travel back to Southern Illinois and by the end of that day, she called me and she left me a message and she said we found a John Sutton file. We are not sure if it’s the right one. But, we should have it by Friday. And this was Friday before the week that I was going to be going to southern Illinois.

On that Friday, I showed up at work and there was a new e-mail from her. And she said, we have the John Sutton file and it’s the right one. Call me.

So I called her up and I said, what do you got. She said, I have this will. She said, what do you want me to do? I said, take a picture.

The outside envelope with a red wax seal and the will beneath it

And the first thing that I saw was this image which was the outside envelope of the will. Again, before lick’em stick’em envelopes time when you sealed an envelope with a red wax seal, that’s what I saw.

And I took a look at what was inside. First on the back of the envelope and there was an indication that on January 24, 1846, 172 years ago tomorrow, that Gregory Yale had prepared this will for John Sutton. He also deposited with the clerk in Duval County and there’s a notation on the document as well that indicates that that was true.

The next thing I saw was this two-page document which was the handwritten will of John Sutton. Now, the excerpt that I had originally seen did not describe any family that John had. It merely talked about the fact that he was creating a will and that he owned certain property including these slaves, including Lucy, who was described as his mulatto slave, aged about 45.

The handwritten will of John Sutton

What I wanted to know was, did he also have a white family. Did he have these slaves that he was emancipating for whatever reasons or designs of his own, but did he actually have a family otherwise.

It wasn’t until I saw the will itself that I actually was able to determine that fact. I read it carefully and I didn’t see any indication that there was any family at all.

So I began to come up with this idea that maybe there was something about John. Maybe there was a relationship that existed between John and Lucy, something that was other than a normal relationship between a master and a slave, even though I had certain expectations and beliefs in my mind about the ways these things worked. And so I began to think, maybe I should dig into that and learn a little bit more about it.

As a result, I decided to write an article. And it was published in the Real Property Trusts and Estates Law Section Probate and Property magazine. It was called Tracing One Family’s Path to Freedom Through Love and I speculated that perhaps there was something more to this relationship in part because John saw to it that Lucy was free. He didn’t have to do that. They had moved from Georgia to Florida and I wondered about that if maybe that had some significance.

But after I wrote this article, I got an e-mail from a professor who teaches in New England at Suffolk University and she told me that she had written a book called Fathers of Conscience: Mixed Race Inheritance in the Antebellum South. And she traces in this book many cases in which white men emancipated slaves, many times women, and sometimes these men were either single, had never been married or were widowed.

And in many cases, the courts did exactly what you’d expect the courts to do which is to uphold the testator’s intent to allow for the emancipation of the enslaved person and they went their way.

However, there were some cases that went up to the court of appeal after being challenged by the white family members of the testators. And in many cases those people said, no, no, there was undo influence, there was fraud, something unusual was going on. And in some cases, the court of appeal actually said, yes, we can discern what the testamentary intent was. Yes, this was the testator’s desire to emancipate these people. But, the public policy of this state doesn’t allow for free Negroes to continue to live in the state.

In some cases, there were statutes that provided that if free Negroes were to live in the state, that they had to post a bond or if they were emancipated within the state, that they had to be removed from the state within 30 days or some other timeframe such as that.

Well, I got in my head that I wanted to tell my family’s story as best I could. And in the process of doing that, I thought, I’m a trusts and estates litigator. If I’m going to tell a story, I should make a story about something that I know. There should be a contest in my family story even though I had no idea if there was a contest in my family. And my life partner who happens to be a Buddhist and had been practicing as a Buddhist for 20 years, chants twice a day for peace for all people, but also part of the daily prayers includes a prayer for enlightenment from the ancestors back from seven plus generations.

Now, I was raised Christian and I wasn’t somebody who would normally do something like that, but every once in a while I would chant with him and on one particular day as I was thinking about this novel that I was writing, that I was going to tell this wonderful story and I was going to have this wonderful moment when Lucy would be able to say, “Yes, John Sutton owned me but I owned him just the same.” So I created in my mind this dramatic moment that was going to exist in this story that I was going to tell.

And one day I happened to be chanting with Jeffrey and chanting for my ancestors and I had the unmistakable impression that John and Lucy were there with me. I can’t explain it. I don’t know how to describe it in any way other than to say that I knew that I had to pursue this story further and that’s what caused me to continue to pursue it.

Well, I was going to go to an ACTEC meeting in 2015, in Marco Island, Florida and I thought, hey, that would be a good time for me to go see the will. Jeffrey agreed to join me for that.

And I thought, well, we will just drive up to Jacksonville and check out the will. Unfortunately, the meeting was in Marco Island which is way down south on the western tip and I had no idea that it was going to be a five and a half hour drive across the State from Marco Island up to Jacksonville, but we made ourselves commit to that anyway.

And I also wanted to add something that was a layer of importance to this experience and around that time I had been reading an article in the New York Times about how the Equal Justice Initiative had been undertaking an effort to document some 4,000 lynchings that took place between the reconstruction period and the 1950s. And they had actually documented them and identified specific counties where each one of those lynchings took place. So we made a commitment that as we drove across the State of Florida that we would count the number of lynchings that took place and make a small donation for each one of those lynchings to the Equal Justice Initiative.

Now, that morning when I woke up, I was in the shower, thinking about this drive that we were going to take, this momentous moment and I was going to put my finger on that X that my great, great, great, great grandfather had made and I wondered what kind of experience of emotion I was going to have when I felt that document. And the thought that kept going through my mind as I was standing there under the shower that day was a scene from the movie Selma and from Coretta Scott King—who was going to meet with Malcolm X—who tended to stay out of the front lines of the Civil Rights movement, was talking to an Amelia Boynton Robinson who had always been on the front lines and who had been arrested and beaten, et cetera.

And Coretta was worried that she wasn’t prepared for what would happen when she actually met with Malcolm X. And the message that she was given was this. You are descended from people who built civilizations, who crossed vast oceans in the hulls of slave-ships. People who overcame tortures and terrors unimaginable. Their blood runs through you. It’s pumping your heart. It’s pumping your heart right now and you are already prepared. I didn’t understand the significance about that, but I got out of the shower and Jeffrey got in our car and we started driving all the way up to Jacksonville, Florida.

After we arrived in Jacksonville, 125 lynchings later, and here’s a copy of the letter that I received from Bryan Stevenson, the head of the Equal Justice Initiative, acknowledging our donation.

We arrived in Jacksonville. And we probably stood out as we tried to walk through security in Jacksonville. I was a little bit fancy with my hat on and Jeffrey was there with his and this was in 2015 before the State of Florida actually allowed for the marriage of same sex couples and I wondered as they looked at us if they thought we were coming there to start some trouble.

Well, as it turns out, we got through the security, that was not a problem, and we got down to the bowels of the probate department and we struggled with the clerks who were there and we asked them, can you please show us this will. “We called ahead, it should be there and ready for us to see.” They said, “Sorry, we can’t find it. You have to come back tomorrow.” What? We had driven five and a half hours. We have to find this document. Now, they dug around and eventually they found it sitting on a supervisor’s desk and they brought it out to me.

Well, I opened up this little file, this red well file about the size of a lady’s clutch purse. And I opened it up. And I got ready to put my finger on that X that my great, great, great, great, grandfather had made and I kept expecting to feel overwhelmed by a sense that I was connecting to history. But I wasn’t feeling that overwhelming sense because there were more documents in the file and I couldn’t quite make out what those documents were.

Well, I saw the original document and I began to look at it even more carefully than I looked at it before. I focused on paragraph third of the document and it said that John declared himself to be lawfully seized and actually possessed in his own right of the following property including mulatto slave Lucy, aged about 45, et cetera, et cetera. Identifying all the children down to little Mahala who was 14 months old when the will was done.

What I also found was Article Fourth which said that “I will and bequeath unto my trusty friend and relation, William R. Adams, formerly of Ware County, Georgia and now of Duval County, Florida, all of the above-named property, the said slaves, the future increase of the slaves, all the cattle, all the hogs, et cetera, on the following conditions. Namely, that upon my death or soon thereafter as practicable, the said William R. Adams shall move the said slaves and the increase thereof to a jurisdiction outside of the State of Florida, either Ohio, Indiana or Illinois where they can enjoy their freedom.”

That I already knew.

This is the property appraisal report. Like any file, then as today in an estate, the Court actually ordered the probate referees to go out and appraise the property.

And I should say that when I conceived of the novel that I was going to write that I was going to tell this wonderful story about this contest, I came up with a character who is John’s brother and I decided to name him Eustace because that seemed like a good-old-timey name.

And I had written that down in my little notebook and that was the way I was going to tell this story, that Eustace had fallen in love with John’s daughter and that he was going to keep her in slavery, et cetera.

But the truth was, as I dug through the file, and came through and looked at the inventory and appraisal of the assets that showed the estate to be worth about $1,100 including some three hundred cows, but it did not identify the slaves by the value. All it did was said that the trust that the will allowed for them to be emancipated and therefore, we were not going to count them.

Now, I want to make a note of the fact that the trust language allowed for the creation of a trust. So the will established that William Adams was to carry out the responsibility of seeing to it that the family was to get there, but it was only on condition that he saw to it that that happened, and failing that, he was required to personally take the property because John trusted that William would see to it that the family made it to Illinois as required.

This is me opening the file. Shocked at all the documents that were there.

And one of the documents as I began to look at, looked like a petition. I had no idea there was a petition in the file. But as I looked at it more carefully, I realized that it was a will contest. And that John Sutton actually did have a brother, a younger brother, whose name was not Eustace, but was in fact Shadrack. I could not have made up a more old-timey name, but that was Shadrack’s name.

And as I read those documents, I looked and saw that Shadrack alleged that he was informed and believed that “Sutton was at the time of the creation of the document very aged, infirm, bodily and mentally, and that he was then and had been for years wandering in his intellect and subject to the most childish and extravagant superstitions, that he was under the influence of ardent spirits, (he had been plied with alcohol) that his credulity and imbecility made him an easy dupe to the artifices of designing persons who represented to him that the families of children heretofore mentioned were not his offspring—were his offspring and when in fact, they were not his offspring.”

Now, I thought that was an interesting representation to make because the will never said that John considered them to be his children. But they were anticipating that there was a contest and as it turns out because everyone knew that these were in fact John’s children, they had to actually claim that they weren’t John’s children.

The petition went on to say, “Your petitioner further showeth unto your Honor that said John Sutton being of sound mind and disposing memory aforesaid was incompetent to make any disposition of the property by will according to the law and that the instrument of writing which he has called his last will is null and void.” Similar to the language that we’d have today in a will contest, the same allegations, undue influence, fraud, lack of capacity.

Plying with alcohol is a new one on me, but that was the one that they threw in as well.

“And your petitioner further showeth unto your Honor that he is advised and believed that the slaves cannot be emancipated in the State of Florida.”

And it went on to discuss the fact that as I mentioned, there was a statute and in the State of Florida if you had emancipated slaves, you had an obligation to pay a thousand dollar bond for each one of them (I don’t know what the bond premium was), lest they become a burden on the people of the State of Florida, and they were required to leave the State within 30 days.

Now, bear in mind that John did the will on January 23, 1846, that he was dead by May of that year and the family packed up all their belongings and made it from Jacksonville, Florida, on to boats I think through Savannah, around the tip of Florida, through New Orleans, up the Mississippi to Illinois where they ended up by December of that same year, of 1846.

Now, one of the things that was really fascinating in the file was the transcript from the trial. There was no court reporter. What there was, was the Judge. Judge William F. Crabtree. Again, I cannot make up names like that. But the probate judge in Duval County at the time was William F. Crabtree and the transcript actually consisted of his handwritten notes of the trial.

Amongst the things that were part of the transcript was the testimony of Gregory Yale who was the lawyer who came out to draft the document. And Gregory Yale had testified that “I advised him,” that is John, “to come to town and seek medical attention. John said that he thought he would. And he told him that he thought it would be better if he could sufficiently recover his health in order to carry out his own designs, to emancipate them on his own. But since he couldn’t, (John)—Gregory Yale came there to the house to do it.”

And the morning after he talked to them and the morning after he spoke to him and had dinner with the family, he prepared the will, signed it, and had witnesses sign it as well.

That’s a copy of the testimony signed by Gregory Yale.

And they also asked questions about whether John seemed to be too old. Gregory Yale testified that he didn’t seem to be too old. He did not seem to be lacking in intellect. He seemed to understand what he was doing. He seemed to have a desire and an intent to actually create this will.

Again, I’ve sort of traced the family’s path from Jacksonville up to Savannah, down around through Florida, through New Orleans and up the Mississippi. I showed slides earlier that referenced the fact that John was born in 1770, six years before the declaration of independence, just as a way of giving you some context and some connection to where we are today in the lives that we live.

Well, there was a final decree that was issued on March 10, 1847 by Judge Crabtree. And in his final decree, which you can’t read very well, but Judge Crabtree upheld the will and ordered Shadrach to pay $28.08 in court costs.

And as I said, William Adams who was the named executor of the will who had received the property, that is, my ancestors in trust to make sure that he saw to it that they made their way to Illinois, did in fact comply with his obligations, travelling with the family to Illinois which is where he recorded the copy of the will that I originally heard about, and declared them to be forever free.

And that was before the will contest was happening back in Florida. Query what would have happened if the family had remained in Florida and might have still been subject to the jurisdiction of Florida or if they could have been pulled back.

But instead, the original document or at least a copy of the document that was originally filed in Duval County, Florida, a copy was filed in Ware County, Georgia and the final copy was filed in Pope County, Illinois which is where the family was so they could enjoy forever their true and perfect freedom.

This is an image of my great, great, great grandmother whose name was Sarah. She was 17 when the will was created and she lived a long life into the early 1900s. She was John and Lucy’s youngest daughter.

Now, when I tell this story, I also like to make sure that people have a context, have a sense of a context of how facts and law interrelate with one another and how the facts that one might hear might be different in court as a litigator. We always are trying to find ways to make sure that the stories that we tell in court are the most effective stories. And in doing so, I’ve begun writing this story and I’d like to share with you a little bit of the story and so you can see how the facts as we know them connect to the facts that were presented in court.

So if you’ll indulge me a moment, I’ll share with you a little bit of the work in progress on The Last Will of Lucy Sutton, the novel that I’m working on.

More irascible than usual due to the rising heat in the courtroom, Judge Crabtree wanted to move things along so he could get done and get out of his judicial robe. He had banged the gavel hard.

“Who is your next witness, Mr. Bryant?” Bryant, who was short and squat, wheezed and pushed himself out of his seat to stand at attention at counsel table. “We are calling the lawyer who drew up the will, Mr. Gregory Yale, your Honor.”

Judge Crabtree nodded at Yale who was sitting on the first row of the gallery. “Please take the stand, Mr. Yale.”

Yale, 50s and trim, stepped spritely to the witness stand. He took out his spectacles from his waistcoat pocket and after swearing to tell the truth, Yale was asked by Bryant to explain to the court what happened on the night of January 23, 1846.

You can check your calendars.

Yale began recalling the events of that evening when he arrived at the Sutton home and was greeted by John’s son, Joel.

A serious 20 year old, Joel opened the door to the dark room and somberly ushered in Gregory Yale. Joel pulled up a side chair by the bed and invited Mr. Yale to take a seat. Close and stuffy, the room was brighter than the hall he had been in, but it was still dark, illuminated only by a lantern that sat beside the bed.

Yale looked at the bed and had trouble seeing that there was anything on it except for piles of quilts and a feathered pillow at the top. Nestled into the feather pillow was the head of an old man, a ragged halo of fluffy white hair splayed out from the gray-drawn face with fluffy whiskers and wrinkled skin mottled with brown spots.

The eyes were closed and Yale wondered if it was too late. He watched the quilt where the heart should have been but could not detect any movement. “Mr. Sutton,” said Yale.

“He can’t hear too well. You might have to speak up,” Joel said over his shoulder.

The lawyer leaned in closer and shook the quilt where the arm should be. He could feel through the covers the flesh had been worn down and there was little substance between skin and hard bone. He spoke louder. “Mr. Sutton.” There was no answer. So he spoke louder still. “Mr. Sutton.” The old man’s chin began to quiver, showing the first signs of life that Yale had observed. The eyelids began to move as well as John Sutton struggled to open them. The papery lids cracked open slowly to reveal rheumy eyes, the same bright blue as those of the pale yellow man who stood beside Yale.

John Sutton’s dry lips parted slowly, and sticky white saliva showed in the corners of his mouth. The old man said something that Yale could not quite make out. “What did you say?” Yale asked. “John,” Sutton managed to utter.

“Hello, John,” said Yale as John’s eyes closed again. “It don’t seem like it, but he can understand you,” said Joel.

“Joel, I need to speak to him alone to make sure that what I am doing is what he wants, and not what someone else wants.”

“All right then, I’ll just be out in the hall. You call me and let me know. Mama is fixing a plate for you—for when you finish.” Joel left the two men alone.

Yale pulled the chair even closer to the bed and spoke slowly but in a loud clear voice, “Mr. Sutton, John, your boys made an appointment for you to come and see me at my office in town. I’m a lawyer. I know you know what that means because I understand that you had been a judge in Georgia. Your boys told me that you wanted to do a will that will set free your slave, Lucy, and her eight children and six children that all belong to you. I have written up this paper based on the information they have given me but I need to know that this is what you really want and not something they are forcing you to do.”

Yale waited for John to respond. He shook his arm again. “John, can you hear me?” There was no reaction this time and he shouted, “John Sutton, can you hear me? It is very important that you respond to my questions.” Still, there was no answer.

“He can hear you, but he may not be able to understand.” Yale was startled by the voice coming from the doorway. He looked over and saw Lucy standing there, holding two glasses, each quarter filled with an amber liquid.

“I brought him a glass of whiskey. That will help wake him up. I have a glass for you too.”

Lucy walked over and handed a glass to Yale and went to the other side of the bed, pulling up a chair close to John’s head. She sat beside him. Then lifted his head and brought the glass to his lips. He opened his mouth a little. And Lucy wiped it with a towel before John took a sip, but his eyes remained closed.

Yale took a sip of his own whiskey and felt it burn as it went down his throat.

“I have to tell you that if I can’t talk to him alone and be confident that he wants to do what I was called here to help him to do, that I won’t be able to write this will.”

“I understand, Mr. Yale,” Lucy said, she had the whiskey glass in her hand. “I’ll leave you alone with him, but can I tell you something before I go?”

“Yes.”

“I object,” shouted Shadrack’s lawyer, Joe Lancaster, “to this hearsay testimony from a Negress who is incompetent to testify against the claims of a white man in this court.”

“This is a trial court, Mr. Lancaster,” Judge Crabtree said. “I’ll hear what Mr. Yale has to say and decide what to let into evidence.”

Yale looked at Bryant. He raised his eyebrows and asked if he should go on. “Continue, Mr. Yale,” Bryant said.

Lucy inhaled deeply before she spoke to Yale. “I was not a child when I came to live with John Sutton. I was close to 18 years old at that time. My master was Ezekiel Adams. Master Adams was also my daddy. I suppose like any woman my comings and goings were always controlled by a man, but it is a special thing to know that the man who controls you can sell you or give you away no different than a pot or a pan or a chicken or a sow.”

Lucy bent to check the chamber pot beside John’s bed, and finding it empty, shook her head and put it back on the floor. “But Master Adams was a good man. He was more kind than cruel to all his slaves and I just feel like he had special affection for me since I was his blood.

“First time I saw John Sutton I was about 12 or so. He and Master Adams were part of a group of men who were fighting the Seminoles and running them off the land so the white folks could farm and raise cattle in Irwin County, same as they did in Carolina before they moved down to Georgia.

“And John Sutton was at Adam’s Plantation to meet with the other members of the militia to make plans for a raid. I was helping to serve food to the men and I seen how John Sutton looked at me. And it scared me. And I could tell that Master Adams saw how John looked at me too and Master Adams was scared for me too.

“And from that point on, Master Adams made sure that John Sutton was never near me alone.

“But, when Master Adams died, I was supposed to belong to his son, William, but William wasn’t but 17 years old, a year too young to own property in his own name, and by that time John Sutton was the probate judge, and one of the first things he did as judge was to become the guardian of Master Adam’s son, William. And that meant that anything that William owned, John owned. And that included me.

“It’s a strange thing to be owned by your own daddy. It’s an even stranger thing to be owned by your own younger half brother who himself has no control over you.

“So I was about 18 when I went to live with John Sutton. Folks thought it was strange that John had never married a white woman. His family couldn’t understand it. It was one thing to keep a Negro woman making babies but it was another thing entirely to treat her with kindness. Or as if she was anything more than livestock.

“John Sutton was kind to me. He only beat me once. And then only to prove to his father that I was his property and that he was not treating me like a proper wife. It ain’t right for a man to cry but he did after that beating and he made me a promise that he would never beat me again.”

Lucy dipped the edge of a tea towel into a bowl of water that sat on the table beside the bed. She wrung out the excess liquid and gently wiped John’s forehead. “We moved away from his family and all the pointing fingers and wagging tongues by folks that said there was something wrong about the way we lived.

“And in the end, his father cut him off and all the land that belonged to the Suttons went to John’s four brothers, Absalon, Moses, David and Shadrack. But John didn’t mind much. He was happy. We were happy. And then along came Easter and I swear that when John saw that baby’s eyes, he fell in love all over again. And then came Maria, Mahola and Sarah and Jack and Benjamin and David.”

As Lucy spoke, she rose from the seat she had taken on her chair, and Yale watched as she lifted the blankets at the foot of the bed. She had vigorously massaged the pastry skin of John’s legs and briskly rubbed each of his feet in turn and they reddened as the blood began to circulate.

“We lived a quiet life and nobody bothered us or messed with us or even cared much about us. We didn’t ask for nothing from the Suttons and they did not think there was anything that they could do for us, so they let us be.”

Lucy pulled the covers back over John’s feet and tucked the blankets in under the thin mattress. “But when John’s daddy died, we went to pay our respects. We didn’t want nothing. Need nothing. It was just right to pay our respects.

“But while we were there, I saw John’s brother, Shadrack, looking at my daughter Sarah, and there was something evil there. Something evil and nasty. And I told John and John seen it too.

“And John made me another promise that he would protect Sarah and all of us. That was two years ago. And we packed up everything we had. Everything. You should have seen us, all of our clothes and household things and chickens, and four hundred cows. We packed it all up and left Georgia and come down here to Duval County.

“John had heard that Florida was a place where he could set us free. It wasn’t until we got here that we learned different. We found out that it ain’t legal to set Negroes free in the State of Florida and then we didn’t know what to do.”

Lucy pulled a small bottle from the pocket of her apron and poured liniment into her palm. Then she rubbed her hands together before smoothing the ointment on John’s dry arm and down to his fingertip.

“John promised me that he would see a lawyer and find a way to keep his promises to me and Sarah and all of us. And I knew that he meant to keep his promise.

“But then he got sick. And every time we tried to make an appointment to come into town to see you, he was too sick to make the trip. We had a doctor come out to the house and they say there’s nothing they can do.”

Lucy walked past Yale, excusing herself, and went back to the other side of the bed and rubbed liniment on John’s left arm and hand before tucking it back under the covers, just as she had done with the right. “He had been in this bed for the last two weeks and that’s why Joel and Jack come out to fetch you and bring you out to the house.”

Lucy crossed her arms and stood over John as she continued to speak. “John Sutton is a good man. And I don’t know what the law says about a promise that a white man makes to a slave, but I know that John Sutton made promises to me in his life. He promised to take care of me and our children and to protect me and our children and our children’s children too. And he told me that these promises that he made in his life, he would keep in his death.”

Yale had sat quietly holding his whiskey in his hand as he listened to Lucy tell her story. The room had remained still, save for Lucy’s ministrations captured in the shadows flickering in the light of lantern.

But Yale sensed before he saw a movement on the bed, the old man’s hand struggled to emerge from the layers of quilts and squeezed Lucy’s hand.

Fanning himself and loosening the closure on his robe, Judge Crabtree asked, “Anything else?”

“Ms. Lucy was a wise old Negro.”

“Objection, your Honor,” snapped Lancaster. “I move to strike that opinion testimony.”

Wearily Judge Crabtree intoned, “The comment is stricken. Anything else, Mr. Yale?”

“It was late. I stayed with the family overnight.

“The next morning John was feeling better. I went over the will with him twice and when I was done, he marked it with his X and I was a witness to that mark.”

So that’s how I tell the story of the facts at least as I understand them from the documents that I received from the file of John Sutton.

What has been miraculous to me is that people have opened their arms to me and helped to support in telling this story, including the Gunster firm.

After I returned back to the ACTEC meeting after Jeffrey and I went to see the will, one of our colleagues there, Mike Simon, actually said to me, you’ve got to get your hands on those files because now there’s a rule in the State of Florida that says that once files have been digitized, they can be destroyed.

So they went to court for me, pro bono, and got me ownership of those original documents, those 46 pages of documents that connect us to our history.

What I’ve learned in this process as I began to dig in further and do my own research and fill out the contours of the novel that I’m trying to write is a little bit about

the importance of history. I’ve always thought of history as something that famous people did, or presidents or kings and Queens, or even individuals who did something unusual and extraordinary like Harriet Tubman who now have become part of our history.

But what I realized as I read these documents and connect to my ancestors is that we’re all living in the context of history. That everyday we are taking actions and steps that are part of history. That our descendants will be looking back to us to explain.

I know that I stand on the same ark of history with John and Lucy and their children. And with my descendants who are yet to come.

And I think the challenge for us, the question for us, is what are we each individually doing to bend that arc of history towards justice.

And I think that’s my message to you today, is that we can talk about the law. We can talk about the facts. We can talk about the books. We can talk about the history. But what is it that we are doing to make life better for those around us, and for our generations yet to come.

That’s my presentation for today. I’ve got some time for questions if people have any. Happy to entertain questions anybody might have. Thank you.

One thought on “The 1846 Last Will of John Sutton—What’s Not So New in Will Drafting and Contests

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