APRIL,

1810.

Hines.

by said Caton's administrator, at public sale, to this defendant, by deed recorded February 3, 1791: that, as to any fraud or iniquity practised by the said Clanton towards the said Howell in Whitehorp obtaining the deed or conveyance aforesaid, the same to this defendant is entirely unknown; but the said deed appears to be very artfully and subtilly drawn, on the part of the said Howell, in reserving to himself and heirs the right and title to the said estate on his marriage and having lawful issue."

The children of John Clanton, by their guardians respectively, say, in a joint answer, that they are not acquainted with the transactions mentioned in the bill, but call upon the plaintiffs for proof thereof. Edward Whitehorn also answered to the same effect; but farther relied, for his protection, on a bond bearing date the 20th of February, 1783, executed by Mary Howell, the feme complainant, to William Howell, the decedent, who went himself to North Carolina, for the express purpose of making a settlement with her, according to his mother's will."

The defendant Sarah Whitehorn saith, that the complainants are very much mistaken in the representation which they have made. The said William Howell was about 19 or 20 years of age at the time of his mother's death; and this defendant avers, that, for several years before his mother's death, the said William had been afflicted with sores and ulcers which some time covered a great part of his body that he continued in this situation, or worse, until he died, which was about the year 1789; that, when the ulcers dried, as they occasionally did, the bodily pains and afflic tions of the said William seemed to increase. The defendant believes that the ulcers rose inwardly, because there were frequent discharges of matter from his mouth and nose. These circumstances will account, at once, for the unsightly appearance of the said William, and the society in which he might sometimes be seen.. The defendant farther saith, that the said William was afflicted in this way at the time when he came to live with her deceased husband John Clanton; that, when at home, he always dined with the family when he pleased, and was lodged as comfortably as his diseased condition would admit; that he was not an idiot as the complainants suppose: it is true that, from continued and excessive affliction, his mind was impaired; but he generally had understanding enough, not only to preserve his person from mis

APRIL, 1810.

v.

Hines.

chief, but to converse rationally and sociably, and to guard against any deception or advantage which others might be dispoWhitehorn sed to take of him. She farther saith, that the said William proposed to the said John to make such a conveyance as is contained in the deed hereto annexed, several times before it was actually executed; and this deed, as well as that which the complainants allude to as having been rejected when offered for record, are attested by Mr. David Mason. That which is dated on the 1st day of October, 1783, was not recorded; because, as she has been told, it was thought to be informal; and not because there was any suspicion of advantage. This defendant farther saith, that the bargain made by the said William was, in her estimation, a proper one; because the confinement to which his disease often condemned him would have made it inconvenient, if not impracticable, for him to manage his estate."

The bond of Mary Howell (now Mary Millison) to her brother William Howell, (exhibited with these answers,) was dated the 20th of February, 1783, in the penalty of two thousand pounds specie dollars at six shillings each; conditioned, that "whereas the above-named William Howell having, at the date of these presents, made unto the above bound Mary Howell, her heirs and assigns, a good and lawful right unto three negroes, to wit, a wench named Annekey, and her two children Liddy and Tabby, and their increase; now if the said Mary Howell, her heirs, executors, or administrators shall ever claim, demand, sue for and recover, any part of the aforesaid William Howell's estate, should he die without issue lawfully begotten, then the above obligation shall be in force, otherwise void and of no effect."

The will of Hannah Howell (also exhibited) bequeathed to her son William five shillings; and, after payment of her just debts, gave the remaining part of her estate, of every kind and

APRIL,

1810.

quality, unto her daughter Mary, to her and her heirs for ever; "but it was her will and desire that if her son William, when he should arrive to lawful age, should give and convey unto his said Whitehorn sister Mary two negroes, to her and her heirs for ever, then the estate devised to the said Mary be equally divided between the said William and Mary Howell."

By articles of agreement dated the 1st of October, 1783, between William Howell and John Clanton, the said Howell "agreed to let the said Clanton have the use of ten slaves (the same mentioned in the subsequent deed aforesaid, dated the 9th of the same month) during the said Howell's life, as also all his lands, stocks of all kinds, household and kitchen furniture, upon the said Clanton's finding the said William Howell a sufficient quantity of decent clothing, meat, drink, mending and board, with every other necessary for his subsistence, or till the said William Howell lawfully marries, or has issue lawfully begotten of his body; and when the said Howell shall lawfully marry, or have issue, then the said Howell and Clanton shall both be released from this their agreement: and should the said Howell die without lawfully marrying, and having lawful issue of his body, then the said William Howell doth give and bequeath, of his own free will and accord, all his estate, both personal and real, to the said John Clanton, to him, his heirs or assigns for ever: and should the said Wil liam Howell marry and have lawful issue, then the said William Howell doth bind himself, his heirs or assigns, to make the said Clanton sufficient satisfaction for all his trouble and expense that he the said Clanton has been, or may be at, in finding both himself and negroes a good sufficient maintenance, as also for raising and taking good care of his young negroes; and should the said Howell's lawful issue die before he marries, then the said Wilham Howell devises and agrees that the whole of his estate should Feturn unto the said John Clanton, to him, his heirs or assigna for ever." This instrument of writing (which it seems the Court refused to admit to record) was "signed, sealed and delivered" before three witnesses, namely, Gray Judkins, Robert Jones, and Nathaniel Parham, and afterwards, on the same day, acknow. ledged" before "Mary Mason, John Mason, and David Mason."

So in the record; but the Reporter presumes there must be some mistake.

V.

Hines.

APRIL, 1810.

Whitehorn

V.

Hines.

The subsequent deed (of the 9th of the same month) was attested

The depositions (amounting in number to thirty-three) generally proved, that, in the opinion of the witnesses, (many of whom were intimately acquainted with him, and knew him from his childhood,) William Howell, though not an idiot, was a person of uncommonly weak understanding, and totally incapable of conducting his own affairs with propriety. This opinion was declared by John Massenburg and Cyril Avery, (members of the Court, who rejected the deed, on that ground, when offered to be recorded,) John Chappell, sen. John Chappell, jun. Levi Rochell, Joseph Rosser, Drury Cooper, Marcus Pennington, Thomas James, Burwell Gilliam, John Key, Frederick Pennington, William Massenburg and Hinchia Rochell. Drury Cooper gave, as an instance of his insanity, that he once saw him endeavour to swallow money, though he did not accomplish it. Other evidence, as to particular facts, tending to shew infirmity of intellect, consisted of hearsay only; but the opinions of most of the witnesses above mentioned were expressed as founded on their own knowledge of Howell, and all in a very positive manner: some also mentioned the general opinion as agreeing with their own.

Robert Jones, sen. (one of the witnesses to the articles of agreement) deposed, that (after reflection) he refused to prove that instrument, and asked Clanton what was its intention? “Clanton answered, it was well known that Howell was not capable of taking care of his estate: this deponent replied the same reason held good, with him, that he was not capable of conveying it; after which this deponent heard the said Clanton had got another deed from the said Howell, (something different from the former,) and had got it recorded."

Barham Moore was well acquainted with Howell, who lived with John Clanton, at the time he executed a deed to the said Clanton for his estate, and had lived there for some considerable

APRIL,

1810.

time before. The deponent "believes the said Clanton had great influence over the said Howell, in his personal conduct, so as to have done almost any thing that the said Clanton requested him Whitehorn to do; and he further says, that he never thought the said Howell to have common sense so as to be allowed to transact his own affairs."

Hinchia Rochell's deposition was nearly to the same effect with

this.

Mary Mason swore that, "on the day the deed of conveyance from Howell to Clanton was written, she asked said Howell if he had neither brother or sister that he had rather give his estate to than a more distant relation; who told her he had a sister who had had her part of the estate, and that he had rather his cousin John Clanton should have his estate than any other person in the world; that said Clanton was to maintain him for it. The deponent then asked said Howell what would be his situation if he was to marry and have children; who told her, in that case, the estate was to be returned to him." On being asked whether she believed him to be a man of sound understanding, she said she was not sufficien tly acquainted with him to form an opinion.

Person Williamson deposed, that he thought Howell was a man of sound understanding, though not as capable of conducting a family as some men, and did not know whether he was as capable as common men. He farther stated that, at the Court when the deed was recorded, three persons who were acting magistrates of the County of Sussex, viz. David Mason, (who wrote it,) George Rives, and George Booth, or Nathaniel Dunn, were called on, at the instance of Howell and Clanton, (but, as the witness was inclined to think, not by order of the Court,) to inquire into the state of the said Howell's mind; that those persons met at the house of David Mason to make the inquiry, and "were of opinion that the said Howell was capable of conveying his estate."

Holt Clanton swore," that he lived in the family of John Clanton, where the said Howell lived, for a considerable time, and that the said William Howell said it was his wish and desire that, if he died without lawful heir, his cousin John Clanton should have his estate, and, for the time he the said Holt Clanton lived in the family, he thinks there was no reason for any com plaint from the said Howell, against said Clanton, for bad treatment; that the said Howell lived as one of the family, and, as to

V.

Hines.