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A defining characteristic of inheritance litigation is that the single most important witness — the testator — is dead. And because the testator’s not around anymore to prove to us that he really was acting of his own free will when he disinherited a child, or favored a late-in-life lover, or bequeathed his estate in any other way that’s contrary to generally accepted norms, the second-hand hearsay testimony these cases turn on acts as a sort of Rorschach test. It tells us as much about prevailing social norms and the unconscious biases even the best of us — including judges — operate under, as it does about the testator’s state of mind. And that’s what makes these cases — and estate planning for unconventional clients in general — so confoundingly challenging.

It’s the perfect storm for a will contest. What do you do?

Now imagine the year is 1846. You’re an attorney practicing in north Florida, a slave-holding state. A sick old man calls for you; he doesn’t have a family in the conventional sense of the word for that time and place, but he lives with an enslaved black woman and their mixed-race children. The man tells you he wants to emancipate his partner and their children, but he’s too sick to do it on his own, so he wants to make sure they’re freed in his will after he dies. His will’s executed on January 23, 1846, and he’s dead by May of that same year. It’s the perfect storm for a will contest. What do you do?

That’s the story told by Los Angeles trusts and estates litigator Terrence M. Franklin in The 1846 Last Will of John Sutton—What’s Not So New in Will Drafting and Contests. Terry is the fourth great grandson of an enslaved black woman named Lucy Sutton, and a white farmer named John Sutton. John executed a will in 1846 that freed Lucy, their eight children, and six grandchildren.

Terry also tells his story in a video presentation that’s must-see TV for any probate attorney. And the resource page for this presentation’s packed with the kind of historical materials that are sure to warm the heart of even the fussiest history buff.

Drafting in contemplation of litigation.

There are two parts to Terry’s story that should be particularly interesting to practicing trusts and estates attorneys.

First, there’s the planning/drafting element of the story. According to Terry, at that time “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.”

So John’s will didn’t just emancipate Lucy and their children. His attorney, a man named Gregory Yale, drafted a mechanism into the will meant to actually get them out of Florida and to freedom.

Article Fourth [of the will] 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.” …

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.

One of the most important elements of any estate plan is deciding who you’re going to rely on to carry out your wishes after your dead. John Sutton placed a huge amount of trust in his “friend and relation” William Adams. So did William come through? Big time, and in many ways he’s the real hero of this story.

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. …

Now, bear in mind that … 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 … 1846. …

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.

The Will contest.

Not surprisingly, the will was contested. This is the second part of the story that should be of particular interest to practicing probate attorneys. John Sutton’s younger brother, a man named Shadrack, challenged the will on grounds that would be familiar to any of us today:

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.” …

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.

In her book Fathers of Conscience: Mixed Race Inheritance in the Antebellum South, law professor Bernie Jones studied antebellum will contests in which Southern white men, typically widowed or single, left wills giving property or freedom to women of color and their mixed-race children. Prof. Jones found that the wills were often contested by white relatives claiming that the men were mentally incompetent or were unduly influenced by “jezebels” who used their feminine wiles to take advantage. It was up to the judges ruling on those contests to decide whether it was more important to follow the terms of the wills or to throw them out since they undermined social norms built on the premise that formalized economic and familial relationships between masters and slaves weren’t just distasteful, but illegal.

And for an eerily similar case underscoring the forces arrayed against Lucy and her children in 1840s Florida, you’ll want to read Florida’s Forgotten Execution: The Strange Case of Celia, which tells the story of another Duval County probate case involving another black family emancipated in the 1840s and the horrific ordeals they endured (including re-enslavement). This case was adjudicated by the same probate judge who adjudicated Sutton’s will, Judge William Crabtree, and involved an appearance by the same lawyer who drafted Sutton’s will, Gregory Yale (this time representing family members opposed to emancipation).

Against this backdrop, if you were advising William and Lucy would you tell them to role the dice on a trial in Florida or get out of town and take their chances in a free state like Illinois? (I know what I would have advised.) They apparently opted for the latter course of action; William, Lucy, her children and grandchildren were all long gone by the time the will contest was tried.

And how did that trial turn out? To my surprise, John’s will was upheld.

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.

But think about this, if the will had been overturned could Shadrack have sued William for some kind of civil theft in connection with helping Lucy and her children to escape? And as fugitive slaves, Lucy and her children would have lived under constant fear of being dragged back to Florida. The stakes for those involved couldn’t have been higher.

Bending the arc of history towards justice.

Terry Franklin concludes his article by reflecting on the people who’ve helped him uncover his family’s story and his great, great, great, great grandmother’s journey to freedom, including the generous pro bono assistance of Florida trusts and estates lawyers like Mike Simon and his colleagues at Gunster. Terry also reflected on the importance of “the context of history” to the work we do, not just as attorneys, but as citizens with a personal stake in bending the arc of history towards justice. I can’t say enough good things about Terry’s article, it’s a must read for any Florida probate attorney.

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.