Johnson et als. v. Culbreath

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Johnson et. al. v.s. Culbreath et. al

Answer of W. J. Willis

was appointed administrator as aforesaid on the 26th day of October A.D. 1846 on the 16th day of November A. D.. 1846 Larkin N Cannon, as codefendant to this bill was by the orphans court of Benton County appointed administrator of the estate of Joel M Cannon deceased. This defendant after obtaining possession of said property proceeded to sell all of it esccept the negroes. On the 12th day of April A.D. 1847 the said Larkin N Cannon as the administrator of Joel M Cannon commenced an action, in the Circuit Court of Benton County of trover against this defendant for the purpose of recovering the value of all of the said property, which this defendant had taken possession of as the administrator of the estate of Barbara Cannon deceased, which said terminated at the Fall term of the Circit Court of Benton County 1847 by the rendition of a Judgement in said Court in favour of said Larkin N Cannon Administriator as aforesaid against this defendant for two hundred & forty three dollars, one fifth of the estimated value of the said negroes Leah, Ann, & William Marcus, and the costs of suit, A Copy of the recored of said suit is hereto annesced marked "eschibit B" and prayed to be taken as a part of this answer. This defendant has paid off the said Judgement since its rendition, but still has the said negroes Leah, Ann, and William Marcus, and (blank) an infant child of the said Ann born since the termination of said suit, in his possession. This defendant by hearing the escamination of the witnesses on the said trial, and by inquiries made by him pending the suit, learned the following facts, which he believes to be true, and therefore avers as facts in this answer, which is herinafter made a crop bill. Many years ago Malcom McPhail died in the state of North Carolina, the owner of the said negro woman Leah, He made his last will & testament containing the bequests stated in complainants bill, a correct copy of which is eschibited with complainants bill,

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Johnson et. al. V.S. Culbreath et. al.

Ans. W.J. Willis

and another copy of which is hereto attached marked, "Eschibit C" and made a part of this answer. The said will was duly admitted to probate, proved & recorded as required by the laws of North Carolina, where the same was made. Niven D. S. Culbreath, Elijah Culbreath, Agnes B Culbreath , Malcolm Culbreath, and the said Barbara Cannon formerly Barbara Culbreath were the children of Flora Culbreath the daughter of said Malcom McPhail mentioned in the said will. Several years after the death of said Malcolm McPhail, & several years ago the said negro woman Leah & her increase then several in number were brought along with the children of Flora Culbreath by one John McPhail to this state. The said John McPhail, who was the uncle of the said children and the escecutor of the last will of Malcom McPhail controlled the said negroes Leah & her increase for some short time after their arrival in this state when Barbara Culbreath intermarried with Joel M Cannon, & Elijah Culbreath attained the age of twenty one years. After that the said negroes were controlled by the said Joel M Cannon & Elijah Culbreath to whom they were delivered up by John McPhail to be hired out or otherwise used for the joint interest of all the said children. up to the death of Joel M Cannon, he and Elijah, Malcolm, Agnes B, and Niven D. S. Culbreath participated in the benefit & enjoyment of all the said negroes either by having the services of a part of them, or receiving a part of the proceeds of their hire, as nearly equally as they could make the division. The said negro Leah and her descendants remained among them undivided, each one claiming an undivided interest of one fifth in the whole of said negroes, and in the proceeds of their hire or services. The younger children who had not attained majority sometimes received their respective portions of the hire of said negroes in notes taken payable to them by said

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Johnson et.al., vs Culbeath et al

Answer of W.J. Willis

Cannon and Elijah Culbeath or one of them, or in board washing &.c.. In this undivided condition all of the said negroes remained until some time after the death of Joel M Cannon, when there being at the time no administrator of his estate, a division of the negroes Leah & her increase then several in number was made between Barbara Cannon & all or a part of her brothers, and Leah & Ann were allotted in that division to Barbara Cannon. This defendant has no information from which he can form a satisfactory opinion as to the age of Niven D. S. Culbreath at the time of said division. After the said division, William Marcus, the child of Ann, was born. The precise time date of the said division this defendant does not know otherwise than by reading complainants bill. The said Barbara Cannon had possession of the said negroes Leah and Ann, and after his birth of William Marcus from the said division up to her death. Since the appointment of this defendant as administrator of said estate, the said negroes Leah, Ann, William Marcus, and since its birth the infant child of Ann, have been in the possession of this defendant, & are still in his possession Since the rendition of the said judgment in the Circuit Court of Benton County against this defendant he has paid off the same & satisfied it in full. By so doing this defendant insists that he is substituted to the rights of Joel M. Cannon in his life time & of Larkin W Cannon the administrator of the estate of said Joel M Cannon deceased since his death to the said negroes in his possession at the date of said judgement, and in his possession at this time. This defendant paid off the said judgement after the issuance of escecution under compulsion of law. This defendant is now in the possession and he insists by virtue of the said judgement & its satisfaction the owner of an undivided one fifth interest in the said negroes Leah, Ann, William Marcus, & the

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Johnson et. al. v.s. Culbreath Et. al.

W.J. Willis

infant child of Ann. The premises considered, this defendant prays that this his answer may be taken as a crop bill to the said original bill, and that this defendant may be deemed & considered complainant in said crop bill, and that this crop bill may be heard and determined at the same time with the original bill of Niven D. S. Culbreath. Your complainant, W.J. Willis, in this crop bill & defendant to the said original bill, prays that on the final hearing of this cause, the said negroes Leah, Ann, and her child William Marcus, and the infant child may be sold and the proceeds of such sale be equally divided between the persons entitled to the same and one fifth be decreed to this complainant, or that the said negroes may be divided under the order & direction of your Honors court into 5 equal parts or shares, & that one of said shares be allotted and dereed to your orator William J Willis and the other four fifths to the persons entitled to the same, or if your honor orator is in any wise mistaken as to the proper relief in this cause, that your Honor will grant him such relief as the nature & circumstances of the case may require, or to your Honor may seem mut. And now having fully answered this defendant prays to be hence dismissed with his proper costs.

Crop Bill W.J. Willis

Your orator William J Willis prays that Niven D. S. Culbreath complainant in said bill, Agnes B Culbreath, and Larkin N Cannon, administrator of the estate of Joel M. Cannon deceased all of whom are of full age & reside in Benton County, and Elijah Culbreath and Malcolm Culbreath, who are over the age of 21 years and reside in Randolph County may be made parties defendants to this crop bill. May it please your Honor to grant unto your orator the states most gracious writ of subpoena to be directed to the said NIven D. S. Culbreath.

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Johnson et. al. Culbreath et. al.

Crop Bill W.J. Willis

Agnes B Culbreath, & Larkin N Cannon administrator of the estate of Joel M. Cannon deceased Elijah Culbreath & Malcolm Culbreath thereby commanding them at a certain day & under a certain penalty to be & appear before your Honor in your Honors Court & then & there full, true, direct and perfect answers make to all and singular the premises, and further to stand to perform & abide such further order direction & decree therein as to your Honor shall seem mut and your orator will ever pray &. c. A. P. Walker Complainants Solicitor

Jurat of Ans.

State of Alabama| Benton County|

Before me, Richard G Earle, Register & master of

the chancery Court for the 39th Chancery District of the Northern Chancery Division of said state, personally came William J. Willis one of the defendants to the cause in said Court wherein Niven D.S. Culbreath is complainant, William Johnson & others are defendants, who being duly sworn says on oath, that the statements in the foregoing answer when made of his own knowledge are true, & when made on information of others and belief he believes to them true Sworn to & subscribed| before me Feby. 5th 1848| W.J. Willis R G Earle, Register &.c.

"Eschibit A"

I, Barbara Cannon of the County of Benton & state of Alabama being sick & weak in body, but of sound mind & understanding and being apprised of the certainty of death & of the uncertainty of the time thereof, & to the end that I may be the better prepared to leave this world whenever it shall please God to call me hence, do therefore make this my last will & testatment revoking thereby all former wills by me at any time heretofore made And as to such worldly effects as it has pleased God to intrust me with, I give, will, bequeath and

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