Duncan research files of
"KY Court and Other Records" Vol.II, by Julia Hoge Spencer Ardery (also from Lucille Mehrkam 1985)
This book contains some Bourbon Co. KY records which include Duncans.
It also includes on pg.117 the Bourbon Co. KY suit of James Duncan vs. Joseph Duncan's heirs, Box 312, in May 1809, naming the heirs of Joseph Duncan from Berkeley Co. VA. A deposition of Sarah Bell was taken in Glasgow, Barren Co. KY. A deposition of Mary M. Laughlin taken in Franklin Co., Pa., said she went to the house of Capt. Seth Duncan in Pendleton Co. KY about 6 days before the death of Sarah Duncan. (MAD: see Barren Co. KY Equity court; Thomas A. Duncan to Davidson Co. TN)
"Reports of cases argued and adjudged in the Court of Appeals of Kentucky, Spring term 1805 to Spring term 1808 inclusive" ("Kentucky Reports") by Martin D. Hardin, Esq.; Vol.3, pgs.268 to 288 (California State Law Library 12/2003; and from Jim Dempsey 10/2003)
COUCHMAN v. THOMAS; Court of Appeals of Kentucky; 3 Ky. 268; 1 Hard. 268; March, 1808, Decided.
This was an appeal from a decree of the Bourbon circuit court, "in which the chief justice and second judge could not with propriety adjudicate;" and therefore refused to sit. Whereupon the other two judges ("not being also disqualified)," constituted the court for the trial of this cause, according to the act of assembly, in such case made and provided.
The case was as follows: Philemon Thomas exhibited his bill in chancery against Malachiah Couchman, who had obtained the elder grant upon an entry in said Couchman's name, for five hundred acres, paying a conveyance of so much of the said land as should fall within the entry of John Tabb for five thousand acres, made the 24th December, 1782, by virtue of which the complainant claims. This entry is in the words and figures following:
"John Tabb enters five thousand acres of land, part of a treasury warrant, No. 9793, beginning at two white-ash saplings from one root, with the letter K marked on each of them, corner to said Tabb's ten thousand acres entry; thence with a line of said entry, north forty-five east the whole length thereof; thence extending from each end of this line, at right angles, north forty-five west for quantity; to be laid off in one or more surveys, excluding all legal prior claims."
The entry of ten thousand acres, alluded to in the former entry, was made on the same day, and upon the same treasury warrant; and according to the copy exhibited by the complainant, was "to be laid off in one or more surveys, lying between Stoner's fork and Hinkston's fork, beginning about four or five miles nearly northeast of Harrod's lick, at two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Hinkston's fork, and on the east side of the branch, then running a line from said white-ash sapling south forty-five east one thousand six hundred poles; then extending from each end of this line north forty-five east down the branch, until a line, nearly parallel to the beginning line, shall include the quantity of vacant land, exclusive of all prior claims."
By reference to copies of this entry, formerly taken; by depositions; by a copy in the hands of the complainant himself, before the commencement of this suit; and from an inspection of the original entry, in the surveyor's book (had in the circuit court, and again in this court, by a subpena duces tecum, to the surveyor), it clearly appeared that the figures "6" and "7," in the original entry, have, by some person, been changed, long subsequent to the making of the entry, for "4" and "5." The entry, then, when restored to the true reading, would be, "Beginning about six or seven miles nearly north-east from Harrod's lick, etc."
The evidence established the following facts: The forked ash, or ash saplings, claimed as the beginning of Tabb's said entries, were marked by Simon Kenton, in August, 1781, with the letter K on each fork. The fork is fourteen inches from the ground. George Hart was the only person with Kenton at the time. (MAD: more omitted here)
Harrod's lick, Stoner's fork, and Hinkston's fork, have been generally known and so called, before and since the date of Tabb's entries. (MAD: more omitted here)
The evidence as to the notoriety of the ash saplings, was to the following amount: Questions by Thomas, the complainant, to William Clinkingbeard, in a deposition taken at the forks of Clear creek: "Was not this place generally known, and the saplings marked with the letter K to the hunters at Strode's station, as a place of notoriety, as early as the years 1781 and 1782?" Ans. "Yes." To Isaac Clinkingbeard, at the same place: "Were not these saplings and this fork of the creek, a place of notoriety among the people of Strode's station, as early as the fall of 1782?" Ans. "The forks of the creek were, and I have heard the ash saplings talked of as early as that time, I think." This witness says, in two of his depositions, of June, 1802, and of January, 1804, that he thinks he "saw the ash saplings as early as 1783, or thereabouts, and might have seen them sooner;" and in another deposition of March, 1804, he says: "I think I saw them as early as the beginning of 1782, upon second recollection."
To Joshua Stamper, at the same place: "How early do you think those trees were generally talked of in Strode's station, by the hunters?" Ans. "In the year 1781, or at farthest, early in 1782." "Did not this place become more talked of, in consequence of those trees being marked here?" Ans. "When we were describing the place, we would sometimes speak of the forks of the creek, and sometimes of the marked saplings at the forks of the creek; at which, I think, both the forks of the creek and the marked saplings were notorious among the hunters at Strode's station."
This witness further says, upon interrogations, that the saplings were described as standing at the forks of Clear creek; and that the forks were generally so called by the hunters at Strode's station, as early as 1781, and ever since.
Five or six witnesses who resided at Strode's station, and were acquainted with the woods in the quarter of the country where this land lay, state that they knew nothing of the ash saplings, nor of the forks of Clear creek until 1783, or later, though most of them knew of Clear creek.
The Bourbon circuit court sustained Tabb's entry; from which decree, Couchman appealed.
(MAD: Counsel's arguments omitted here)
JUDGE BIBB delivered the opinion of the court. After a statement of the case, in substance as above, it proceeded as follows: (MAD: more omitted here)
These untrue and misleading descriptions could only be counterbalanced by clear proof of general notoriety in the ash trees, individually and apart from the other calls. A great effort has indeed been made, to prove the notoriety of them. A specimen of the questions and answers on that subject will serve to illustrate this branch of the case.
Question by Thomas, the complainant, to William Clinkingbeard, in a deposition taken at the forks of Clear creek: "Was not this place generally known, and the saplings marked with the letter K, to the hunters at Strode's station, as a place of notoriety as early as the years 1781 and 1782?" Ans. "Yes."
To Isaac Clinkingbeard, at the same place: "Were not these saplings, and this fork of the creek, a place of notoriety, among the people of Strode's station, as early as the fall of 1782?" Ans. "The forks of the creek were, and I have heard the ash saplings talked of as early as that time, I think." This witness says, in two of his depositions, of June, 1802, and of January, 1804, "that he thinks he saw the ash saplings as early as 1783, or thereabouts, and might have seen them sooner;" and in another deposition of March, 1804, he says: "I think I saw them as early as the beginning of 1782, upon second recollection."
To Joshua Stamper, at the same place: "How early do you think these trees were generally talked of in Strode's station by the hunters?" Ans. "In the year 1781; or at farthest, early in 1782." "Did not this place become more talked of in consequence of these trees being marked here?" Ans. "When we were describing the place, we would sometimes speak of the forks of the creek; and sometimes of the marked saplings at the forks of the creek; at which, I think, both the forks of the creek and the marked saplings were notorious among the hunter's at Strode's station."
This witness further says, upon interrogations, that the saplings were described as standing at the forks of Clear creek; and that the forks were generally so called by the hunters at Strode's station, as early as 1781, and ever since. These three witnesses, in their depositions, all unite the trees and the forks of Clear creek; and say, when they heard the trees spoken of by the hunters and people of Strode's station, they were described as standing at the forks of Clear creek. These are the only witnesses who have attempted to ascribe notoriety to these trees in 1782; and by such questions, and others of the like kind, they were led to speak on the subject.
These truths clearly result from their depositions; that their recollections, as to the time when these trees were talked of at Strode's station, were very dull, and on that subject were stimulated by leading questions; that the forks of Clear creek (a subject not mentioned in the entry) were always united with the ash saplings, in the minds of these witnesses. When we compare these depositions with those of Edward Wilson, Ralph Morgan, Jeremiah Poor or Power, James Duncan, Frederick Couchman, and John Donaldson, all of whom resided at Strode's station, before the date of Tabb's entries (except Poor, who did not settle there until 1783), and were well acquainted there before and after Tabb's entries were made, the preponderation of evidence is very clear, that these ash saplings had not acquired notoriety before 1783, if so early; and that the forks of Clear creek were not known as such before that time, but that Clear creek was. The concurrence of all the witnesses on either side, who speak of the notoriety of Harrod's lick, Hinkston, Stoner, and Clear creek, is strong and impressive of notoriety in its proper signification; and satisfies the mind that such notoriety existed before the date of the entries in question; but notoriety of the ash saplings themselves, divested of the name of Clear creek, and of the forks of Clear creek, can not be said to have been even glanced at by the witnesses.
(MAD: more omitted here)
The additional responsibility devolved on us by the refusal of the other judges to adjudicate herein, has commanded this most deliberate and serious attention; whereupon it is the opinion of the court, clearly and decisively, that Tabb's entries depended on the beginning called for to give specialty and precision to the locations; that the directions to find it would not point to the beginning assumed, or contended for; but were delusive, and calculated to lead astray therefrom those who should pursue the directions; that the ash saplings had not notoriety by themselves, or in conjunction with any of the other calls in the entries, at the date thereof, so as to countervail the uncertain and illusive description thereof; or to give a locator, or holder of another warrant, reasonable notice of the land intended to be appropriated by the said entries; and especially as to the land in controversy, that they can not be sustained as locations required and permitted by law, and therefore that the complainant has no equity in his bill.
This decision on the first question renders any decision on the second point, and other incidental questions, unnecessary.
"Reports of cases argued and adjudged in the Court of Appeals of Kentucky, Spring term 1805 to Spring term 1808 inclusive" ("Kentucky Reports") by Martin D. Hardin, Esq.; Vol.3, pgs.373 to 375 (California State Law Library 12/2003)
KENNEDY'S Heirs v. DUNCAN, etc.; Court of Appeals of Kentucky; 3 Ky. 373; 1 Hard. 373; March, 1808, Decided.
This cause was argued at the spring term, 1807.
THE CHIEF JUSTICE now delivered the opinion of the court as follows: The writ of error is prosecuted by the plaintiffs, for the reversal of a decree of the late court of quarter sessions for Bourbon county, obtained by the defendants against them, as heirs and devisees of John Kennedy, deceased. The defendants in this court, pleaded the act of limitations, in bar of the writ of error; to which the plaintiffs replied, that two of them were infants when the decree was pronounced; and that five years had not elapsed, from the time of their coming of full age, until after the suing out of the writ of error; upon which an issue was joined, which being tried by a jury at the bar of this court, was found for the plaintiffs.
The original suit was brought on a bond given by John Kennedy, deceased, in his lifetime, to the defendants, or the conveyance of six hundred acres of land. The decree expresses that the defendants in that court (who are plaintiffs here) shall convey six hundred acres of land; but from the corners and distances mentioned in the decree, and also from the courses and distances called for in the surveyor's report, which is pursued by the decree, it appears, upon an accurate calculation, that the court has erroneously, and through mistake, decreed the defendants in the court below, to convey upward of six hundred and fifty acres. This mistake being apparent on the face of the decree itself, the decree is erroneous, and must be reversed.
The question is, whether it must be reversed in toto, or only so far as regards the interest of the two plaintiffs who did not come of age until within five years next preceding the prosecution of the writ of error?
The counsel for the defendants contended that it ought only to be reversed in part; because, as he contends, the other plaintiffs, at all events, are barred by the act of limitations. We are of opinion they are not barred.
Those of full age could not prosecute a writ of error in their own names, without joining the infants with them: and they had no means of compelling the infants to join. If the infants or their guardians refused to join in the writ of error, the adults could not have judgment of severance against them; because of their infancy. And without judgment of severance, the adults could not maintain a writ of error in their own names alone.
The plaintiffs held an estate as coheirs and devisees, cast upon them by act of law, or the devise of their ancestor: a joint decree was passed against them, divesting them of their estate. They were, therefore, bound by the rules of law to prosecute a joint writ of error for the reversal of that decree. Therefore, as the adults could not maintain a several writ of error, and had no means of compelling the infants to join with them, the saving in the act for the benefit of the infants, must by law accrue to the benefit of the adults, the coheirs. Otherwise, the law would work iniquity, by barring the adults of their right, without their default.
It may be observed, that some other of the plaintiffs were, at the time the decree was pronounced and yet are, femes covert, as appears from the record. Their rights were not barred by the statute.
It seems to us that the provision in the act that, "Where a person thinking himself aggrieved by any decree or judgment, which may be reversed in the court of appeals, shall be an infant, feme covert, non compos mentis, or imprisoned, when the same was passed, the time of such disability shall be excluded from the computation of the said five years," embraces all those, who from the rules of law must, of necessity, join in the same writ of error; as they make but one party, in consideration of law.
But even if those adults, not femes covert, were barred, it would be very difficult to support the decree in part, and reverse it in part. The decree is for an entire, undivided thing; and we can not discover how this court could practically make a severance. Its being a chancery cause does not lessen the difficulty, nor alter the case. It is one of the cases where chancery must follow the law.
Decree wholly reversed; cause remanded, for surveyor's report to be set aside, etc., and a decree made pursuant to equity, etc.
"Decisions of the Court of Appeals of Kentucky, commencing with Fall term 1817 and ending with Fall term 1821" by Alexander K. Marshall, Esq., in 3 volumes, Vol.I & II, 2nd edition; Vol.2, Fall 1819 and Fall 1820; Vol.9, pgs.506 to 507 (California State Law Library, Sacramento, 12/2003; names Dugcan and Duncan as given)
JOHN BRECKENRIDGE and Wife v. JAMES DUGCAN et al.; Court of Appeals of Kentucky; 9 Ky. 50 ; 2 A.K. Marsh. 50; October 18, 1819, Decided.
Appeal from a Decree of the Bourbon Circuit Court.
Judge ROWAN delivered the opinion of the court. In the will of Duncan, the testator, among other clauses are the three following, viz: 1st. "To my daughter, Polly Breckenridge, I give the negroes and all the other property that I have put into her possession." 2d. "To my daughter, Eleanor Breckenridge, I give the negroes and all the property I have put into her possession." 3d. "To my daughter Sally, I give three negroes, namely, Mary Ann, Cassandra and Jerrard; all her beds and furniture that she acquired since she was of age, and her horse, saddle and bridle, and likewise all her other property that she has acquired since she has become of age."
The testator had several sons, to each of whom he devised land, but no negroes. To his daughters he gave negroes, as above, but no land. To Polly, upon her intermarriage with the complainant, John, he gave a negro girl and a negro boy, together with his household furniture. To Eleanor, upon her intermarriage, he gave, in like manner, three negroes and some household furniture. He had two negro fellows, viz. Sam and Jack. Jack he hired to one of his sons, for several years before his death, (which happened in the fall of the year 1818,) at the price of $80 per year. Sam he hired, in like manner, to John Breckenridge, the appellant, yearly, from the year 1815, till his death, at the like price of $80 per year. Polly and John were intermarried in the year 1810. Sam was in the possession of the appellants, upon hire, as aforesaid, at the date of the will, and at the time of the testator's death. The appellants claimed Sam under the first above recited clause of the will, and exhibited their will in the court below against the appellees, the executors, to compel them to assent. The executors answered, refusing to assent. The court, upon final hearing, dismissed the bill; from which decree of dismissal an appeal was prayed, and the cause brought to this court.
In the construction of a will, the intention of the testator is to be ascertained, and effectuated. In that, as in every other instrument, the rules of construction are to be employed only when doubt exists. When a doubt exists as to the intention of the party, it is called, in law language, a patent ambiguity. But when the intention of the party is clearly expressed, and a doubt exists, not as to the intention, but as to the object to which the intention applies, it is, in the same language, called a latent ambiguity. The helps to be employed in the solution of the patent ambiguity, are to be collected from the face of the instrument alone, in which it originated; and in this service the context, and every legitimate rule of exposition, may be enlisted and used in obedience to the maxim "ut res magis valeat, quam pereat," but parol testimony, or extraneous proof of any kind, is inadmissible: not so in relation to a latent ambiguity. There, as the doubt originated not on the face but dehors the instrument, not as to the intention of the party, but as to the nature, or state of the facts in the country, any legitimate evidence, of which the facts are susceptible, from that quarter, is admissible to remove the doubt. In this case no doubt can be entertained as to the intention of the testator; it is clearly expressed, "To my daughter Polly I give, &c. the negroes that I put in her possession." To the negroes which the testator had put into the appellant Polly's possession, she is clearly entitled under this bequest in his will. But what negroes, and how many, he had put into the possession of his daughter Polly, are facts dehors(MAD:?) the will, concerning which doubts are entertained. These doubts belong to the latent class, and are, as they may well be, solved by the proof in the cause, from the country. We learn from the entire will, as we might have inferred from the situation of the testator, that under the impression of an approaching dissolution, and in contemplation of that event, his mind was employed in providing for his children; they were the objects of his affection as they were about to be of his benefaction: his mind flowed in the channels of his affection, or, to speak more emphatically, of his blood. He had two sons-in-law; neither of them were named; perhaps neither of them were thought of. Every child is thought of, named, and provided for as such. To his child Polly, he gives the negroes which he had put into her possession. We learn from the proof in the cause that he had, eight years anterior to the date of the will, given to her two negroes, viz. Winny and Frazier, upon her intermarriage with the appellant, John. Those negroes were given to Polly upon her marriage. Sam, the negro in contest, was five years afterwards hired to John. To my daughter, Polly I give the negroes, &c. that I put into her possession. To whom does the testator allude as the donee? His child, his daughter, Polly. To what negroes does he allude? To those which he had given into her, Polly's possession. Who were they? Winny and Frazier, whom he had put into her possession upon her marriage. He had never put Sam into her possession. He had never displayed any donative intention in relation to Sam. He had put Sam into the possession of John Breckenridge; of John, not of Polly; of him, not of her, in the year 1815; not in the spirit of gift, but of gain; not for an indefinite time but for a year, at the price of $80; which process was renewed every successive year, until his death. Sam is not the only slave not specifically disposed of by the testator in his will. Jack, a fellow of not less value, who was, in like manner, out upon hire, is alike without any specific notice in the will. We cannot, therefore, think that Sam was given by the will to the appellants. In this sentiment we are the more confirmed from the consideration that the negroes given to Polly, upon her marriage, were, at the date of the will, (owing to their increase,) of more value than the negroes given to either of her sisters, at that time.
The decree of the court below, dismissing the bill of the appellants, must, therefore, be affirmed, with costs.
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