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Johnson et.al. V.S. Culbreath et.al.
Original Bill
to pay the debts of the said testator. The said Mary McPhail the widow of the said testator died in the state of North Carolina some time in the year 1839. The said John McPhail took possession of the said negro woman Leah, and her child or children immediately after the death of the said Malcom McPhail and retained possession of them for about a year, holding them as your orator supposes, and avers, for the benefit of the said children of the said Flora Culbreath. After the lapse of the one year the said negro girl Leah and her increase were placed at the house of your orators Father, who then had the aforesaid children with him& remained with him engaged in taking care of & waiting upon the said children until his death. After his death your orator wiht his brother & sister resided as one family and kept house together in the state of North Carolina for some years, during which time the said negro Leah & her children were in the possession of your orator & his sister & brothers. In the year 1840 the said John McPhail emigrated from North Carolina to this state, and your orator with his brothers and sister came with him. The said negro Leah and her increase were brought to this state along with your orator & his brothers & sister. After their arrival in this state the said negro woman and her children were controlled and used by the said John McPhail so as to reimburse to him money expended by him in moving your orator, his sister & brothers to this state, and in paying the bond of your orator and his sister, until the 31st December 1841, when Barbara Culbreath intermarried with Joel M.Cannon and the said John McPhail had ceased to have any connection with the said negroes after said marriage. The said negroes were some of them in the possession of some of the said children, and some were hired out by them untill
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Johnson et. vs. Culbreath et. al
Original Bill
about the first of January 1846. On the first of January 1846 the said negro woman Leah who was childless at the date of the said last will & testament had the following five children, to wit : Ann, Stephen, Mary, Margaret, and William. In May 1844 Ivel M. Cannon died leaving his widow with one child named Thomas Evander Cannon. About the first of Janurary 1846 a division of the said negroes was made, partial in its character, unequal, and not designed to be final, and not committed to writing. All the children were not present at said division. By the said division the said negro woman Leah and her child Ann, were assigned to Barbara Cannon. Malcolm Culbreath had previously purchased Elijah Culbreaths interest in said negroes and as the share of himself and Elijah Culbreath received the negroes Mary & William. Agnes B Culbreath received the negro boy Stephen and the negro girl Margaret was assigned to your aorator as his portion. Your orator was entitled to one fifth of the said negroes divided according to value, whereas in fact & in truth the said negro girl Margaret lacked three hundred dollars at least of being of value equal to (?75) the value of all the said negroes. The said John McPhail was never appointed or qualified as guardian of your orator or his brothers or sister, but merely assumed the management of their property as a favor. Your orator was not twenty one years of age at the time of said pretended division of the said negroes and did not arrive at that age untill the 16th February last. Since the said division of said negroes the above named negro girl Mary was sold by virtue of an escecution against Elijah Culbreath or Malcom Culbreath or both of them, and at the sale under said escecution she was bought by William Johnson, who resides in Benton and now has her in
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Original Bill
possession and claims her as his own property. Since the purchase of the said negro girl Mary by the said William Johnson, she has given birth to a child, whose name is unknown and who is in the possion of the said William Johnson and by him claimed as his own property. Barbara Cannon departed this life on the 17th August last, leaving one child, Thomas Evander now an infant. William L. Willis Sheriff of Benton County has been appointed by the Orphans Court of Benton County where she resided at the time of her death administrator of her estate, and as such administrator has the said negroes Leah, & Ann and William Marcus an infant child of Ann born since the said pretended division, and he claims them as a part of the estate of said Barbara Cannon. Stephen, the negro boy, is in possesseon of Agnes B Culbreath. The negro boy William is in possession of Malcolm Culbreath. The negro girl Margaret is in the possession of your orator. William Johnson & Agnes B Culbreath are of full age and reside in Benton County. William L. Willis is Sheriff of Benton County & esc officio administrator of the estate of Barbara Cannon, and is a resident of Benton of full age. Malcolm Culbreath & Elijah Culbreath are citizens of Randolph County State of Alabama of full age. Your orator is younger than any of his brothers or sister. Your orator prays that the said William Johnson, Agnes B Culbreath, Malcolm Culbreath, & Elijah Culbreath and William L Willis as said administrator & John McPhail, who is a resident of Talladega cty. in the state of Alabama of lawful age may be made parties defendants to this bill of complaint, and that they may upon their respective corporal oaths fulltime direct and perfect answers make to all and singular the several matters & things in this bill of
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Johnson et. al. v.s. Culbreath
Original Bill
complaint contained as though the same were repeated and they specially interrogated thereto. And upon a final hearing of the cause your orator prays that the said negroes may be divided equally between him and his brothers and the administrator of the estate of Barbara Cannon, or that the said negroes may be sold and the proceeds of such sale may be distributed equally among the several persons entilted to the same, or for such other & further relief as to your Honor may seem meet and the nature and circumstances of the case may require. Your orator prays that subpoena may be issued from your Honor's Court & served upon the said defendants commanding them at a certain time and under a certain penalty to be & appear before your Honor's Court and then & there full true direct and perfect answers make to the allegation of this bill and to stand to abide by & perform whatever may be adjudged in the premises, and your orator will ever pray (?) T .A. & A.I. Walker Complainants Solicitors
Exhibit A"
In the name of God amen. I Malcom McPhail planter of the County of Cumberland and state of North Carolina being old and knowing the certainty of death and uncertainty where it may happen do think proper to make this my last will and testament in manner following viz. First, I give & bequeath devise to may loveing wife Mary one negro boy named Dick her Natural life. 2. I give & devise to my loveing wife Mary fifty acres of land on both sides of the Walkers path during life. & after her decease or death my will & desire is that the negro boy Dick & the fifty acres of land be given to my son John McPhail. I give to my grand children
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Johnson et. al. v.s. Culbreath et. al.
Exhibit A"
that is to say the children of daughter Flora Culbreath one negro girl named Leah. In case my daughter Flora should have more children or another child then for he she or they to heir equally with Flora's present children and should any one or more than one of Flora's children die before he she she or they comes of age my will is the survivor or survivors are to inherit it and become heir or heirs to their deceased brother or sister's share in the aforesaid negro girl Leah & her increase. My will is that the said negro girl & increase remain undivided among the children till the youngest comes of age. To my daughter Flora I give one dollar in money. To my daughter Nancy McPhail I give one dollar in money. To my son John McPhail I give three hundred and twenty five acres of land all my stocks of every kind household & kitchen furniture bed bed clothes. I also give to my son John McPhail all other property not mentioned in this will. I do appoint my wife Mary and my son escecutors of this my last will & testament. In witness whereof I have hereunto set my hand and seal this the 26th day of July 1824 Signed sealed published| and declared in presence of us| witness Peter McLean William McDougold Proven by William McDougold September Term 1828 John McPhail qualified excecutor
Filed in office this the 12th June 1847 J. B. Martin Register
Subpoena
The State of Alabama, Benton County To any Sheriff of the state of Alabama- greeting You are hereby commanded to summon Malcolm Culbreath and Elijah Culbreath