Duncan research files of
1830 Lowndes Co. MS Census Pg. 73 John Duncan 2000,1 - 0000,1 82 William Duncan 2100,01 - 1100,1 83 William Duncan Sr. 0000,0000,1 - 0000,0000,1 1840 Lowndes Co. MS Census Pg.201 William Duncan 1022,102 - 0210,001 George W. Duncan 1110,01 - 1100,01 (MAD: 1850 Pickens Co. AL census) 206 John Duncan 1020,01 - 1100,01 (MAD: 1850 Caldwell Co. TX census) William Duncan 0200,0000,01 - 0000,0100,1 (not Rev. War pensioner; next to John)
1850 Lowndes Co. MS Census
Pg.108, #892, William DUNCAN 53 SC planter $2800
Elizabeth 53 VA
Mary A. 18 MS
Beatrice WARD (f) 20 MS
Edward DUNCAN 14 MS
James M. EDWARDS? 20 TN laborer
(MAD: William Duncan mar. Mrs. Elizabeth Hendrick 1/10/1834)
Pg.110, #926, Lott W. LAWS 32 NC carpenter $12000
Rebecca 32 AL
Gustavus 15, Lott (m) 10 MS
Early (m) 6, Neuton (m) 4 MS
(MAD: Lot W. Laws mar. Rebecca Hendricks 6/12/1834 Lowndes Co. MS, consent for their dau. by William & Elizabeth Duncan)
1860 Lowndes Co. MS Census
Pg.18, #127-131, Wm. DUNCAN 63 SC farmer $6,000-$15,000
Elizabeth 65 VA
Edward 24 MS farm manager
Beatrice HUNT (HANT?) (f) 28 MS
Gustivus? (m) 2 MS
(MAD: "Hunt" does not end in "d", name not "Ward")
1870 Lowndes Co. MS Census
Police Dist. #2, P.O. Columbus
Pg.183, #330-357, DUNCAN, A.B. (m) 40 SC farmer $560-$0
Elizabeth 27 MS keeps house
Rufus 18 AL farm agent
D.M. (m) 10, Rush (m) 8 AL at home
Andy (m) 1 MS
(MAD: 1860 Fayette Co. AL census; Maj. A.B. Duncan 5/3/1829 - 12/31/1909, and Elizabeth J., wife of Maj. Duncan, 10/15/1843 - blank, bur. Egger Cemetery, from pg.125, "Lowndes Co. MS Cemetery Records" by Rolfe B. Chase, 1979, CA State Library, Sutro Branch, book F347 L8 C35)
Pg.209, #196-251, HUGHES, H. (f) 65 SC BLACK domestic servant $0-$0
DUNCAN, Alf (m) 26 MS BLACK wagoner
Pg.248, #932-1270, DUNCAN, T.J/I. (m) 28 AL merchant $0-$0
A.S. (f) 23 VA keeps house
Pg.251, #950-1352, DUNCAN, Maria 70 GA BLACK laborer $0-$0
Ned (m) 35 MS BLACK laborer
Pg.254, #989-1418, DUNCAN, Allen 30 VA BLACK brickmason $0-$0
Maria 25 VA BLACK laborer
Rena (f) 5 AL BLACK
Pg.254, #990-1419, DUNCAN, Rena (f) 55 MS BLACK seamstress $0-$0
Pg.254, #1006-1436, DUNCAN, Sam 25 SC BLACK laborer $0-$0
Phillis 20 SC BLACK laborer
Ran (m) 12 SC BLACK laborer
Nicy (f) 11, Ellen 8 MS BLACK at home
Lizzie 2 MS BLACK at home
District 3, P.O. Columbus
Pg.261, #14-15, DUNCAN, John 35 MS BLACK farm laborer $0-$0
Jane 30 MS BLACK farm laborer
Vaneperdil? (f) 8 MS BLACK
Pg.270, #208-224, DUNCAN, Ann 20 MS BLACK farm laborer $0-$0
Alice 5, Infant (f) 1 MS BLACK
Pg.270-271, #229-247, TALIAFERRO, Tony (m) 30 NC BLACK farm laborer $0-$0
Lettie (f) 30 AL BLACK farm laborer
Jesse (m) 12 AL BLACK farm laborer
Elias 10 AL BLACK at home
Mary 8 AL BLACK
DUNCAN, Allen 21 AL BLACK laborer
Pg.272, #239-257, DUNCAN, Daniel 36 AL BLACK farming $0-$0
Lucinda 34 GA BLACK keeps house
Margaret 8 MS BLACK at home
William 3 AL BLACK
Ellen 2/12 MS BLACK b.May
Pg.272, #240-258, DUNCAN, Rose 55 SC BLACK at home $0-$0
Jabez (m) 13 AL BLACK farm laborer
Henry 33 AL BLACK farm laborer
Jim (m) 17, Sid (m) 16 AL BLACKS at home
Pg.272, #244-263, DUNCAN, Johnson (m) 40 AL BLACK farm laborer $0-$0
Jane 30 AL BLACK farm laborer
Vampudel (f) 7 AL BLACK
Township 16, P.O. West Point
Pg.298, #101-82, DUNCAN, B.A. (m) 35 SC farmer & merchant $33,000-$10,000
Celistin A. (f) 33 GA keeping house
Elisha S. (m) 9, Perry E. (m) 7 MS
(MAD: Burwell Alexander Duncan, 1860 Monroe Co. MS census; Dr. B.A. Duncan mar. Julia Manning 1/30/1894)
Township 17, P.O. West Point
Pg.388, #276-248, DUNCAN, Jerry (m) 40 GA BLACK farm laborer $0-$0
Sallie 45 VA BLACK farm laborer
Pollie (f) 16, Albert 14 MS BLACK farm laborers
Township 18, P.O. Artesia
Pg.419, #275-275, DUNCAN, Charles 32 SC BLACK farm laborer $0-$0
Julia 26 AL BLACK farm laborer
Nancy 2 MS BLACK
STEEL, Isaac 16 MS BLACK farm laborer
Samuel 14, John 12 MS BLACKS farm laborers
Township 19, P.O. Mayhew & Tibbee
Pg.486, #507-486, DUNCAN, Joseph 38 SC BLACK farm laborer $0-$0
Hannah 37 SC BLACK farm laborer
Fannie 10 AL BLACK farm laborer
Henry 8 AL BLACK
Pg.486, #509-488, DUNCAN, Martha 40 VA BLACK farm laborer $0-$0 (alone)
Pg.487, #516-495, GLOVER, Jacob 40 VA BLACK farm laborer $0-$0
Martha 33 SC BLACK farm laborer
William 16, Civilla (f) 14 AL BLACK farm laborers
Mary 12 AL BLACK farm laborer
Josephine (f) 10 MS BLACK farm laborer
DUNCAN, Henry 22 AL BLACK farm laborer
Pg.498, #745-704, DUNCAN, Isaac 28 AL MULATTO farm laborer $0-$0
Susan? (f) 19 MS BLACK farm laborer, mar. in April
Pg.498, #750-709, RICHARD, Wyatt (m) 25 SC MULATTO farm laborer $0-$0
Sallie 26 SC BLACK farm laborer
DUNCAN, Nancy 66 VA BLACK keeping house
WHITFIELD, Sarah 20 MS MULATTO farm laborer
Town of West Point
Pg.511, #232-232, DUNCAN, Rebecca 23 MS BLACK laborer $0-$0 (alone)
Lowndes Co. MS Will index (FHL film 901,971)
Vol. 1, 1847-1889 - no Duncan
2-241: Duncan, Hiriam, testator (indexed by others as Hinson Duncan)
2-368: Duncan, Mrs. Julia W.
Lowndes Co. MS Probate Court Minutes (FHL film 901,994)
Vol. 5, 1845-1850 - no Duncan
Vol. 6, 1850-1854 - no Duncan
Lowndes Co. MS Probate Records
Vol. C, 1838-1841 - no Duncan (FHL film 901,976)
Vol. D, 1840-1845 - no Duncan
Vol. E, 1841-1843 - no Duncan (FHL film 901,977)
Vol. F, 1843-1845 - no Duncan
Vol. G, 1845-1847 - no Duncan (FHL film 901,978)
Vol. H, 1843-1849 - no Duncan
Vol. I, 1849-1851 - no index (FHL film 901,979)
Vol. K, 1851-1853 - no Duncan
Lowndes Co. MS Deeds (index on FHL film 901,927)
1-228: 25 Dec. 1832, Alexr. McCarter to trustees of Baptist Church of Christ called Zion; trustees: Henry Petty, Wm. Halbert, Peter P. McClanahan, Wm. Duncan, John Halbert/Halbut, John H. Morris, and Micajah Brooks. (FHL film 901,930)
4-387: 7? June 1835, Wm. Duncan Sr. to Lucy Duncan, both Lowndes Co. MS, $50, 80 acres, E 1/2 SE 1/4 Sec. 32, Twp. 18, Range 7W. No wit. (FHL film 901,931)
4-388: 6 June 1835, Lucy (X) Duncan to William Duncan Senr, both Lowndes Co. MS, $75, all my undivided part in 40 acres, S 1/2 SE 1/4 Sec. 32, T18S, R17W. (FHL film 901,931)
5-56: 18 Nov. 1835, Tho. W. Baxter of town of Macon, GA, appoint Henry Duncan of Ashtibbalaw/Oaktibbahaw (?), MS, to sell his land. Wit. Wm. Huddleston, Tho. McGee. (FHL film 901,931) (MAD: Oktibbeha or Kemper Co.)
5-173: 1 Jan. 1836, Nelson Hendrick and wife Dolly D. Hendrick, party of 1st part, to William Duncan of 2nd part; Dolly Hendrick is one of the heirs and distributees of Gustavus Hendrick decd and as such is entitled to undivided 1/7 part of following lands of which Gustavus Hendrick died owning: W 1/2 SE 1/4 Sec. 18, R18W, and W (does not say half or quarter) of SE 1/4 Sec. 33, and E 1/2 of NE 1/4 Sec. 33, W 1/2 NW 1/4 Sec. 34, Lot #2 of Fractional 32, and E 1/2 SW 1/4 Sec. 34, and E 1/2 NW 1/4 Sec. 33, all in R18W (does not give Twp); and at the death of Elizabeth Hendrick her mother and late widow and relict of Gustavus Hendrick decd and who is now the wife of the said party of the 2nd part (MAD: William Duncan), said Dolly will be entitled to undivided 1/7 part of following lands which have been allotted to said Elizabeth as her dower out of the lands of which the said Gustavus died seized, to wit, NE 1/4 Sec. 34, Twp 18, Range 18, and E 1/2 of NW 1/4 of same Sec. 34; whereas said Nelson by virtue of his intermarriage with said Dolly has acquired the estate in said lands to which his wife is entitled; whereas said Nelson has received his portion of the slaves of said estate and has heretofore sold said slaves to Thomas Townsend; NOW parties of 1st part for $800 sell to party of 2nd part, their undivided interest in the lands and reversions etc. above, also their interest in the personal estate of Gustavus Hendrick decd except as mentioned above. Wit. A.J. Rose, John H. Morris JP. (FHL film 901,931) (MAD: one Gusts. Hendricks on pg.382, 1830 Greene Co. AL census, one male 30-40, one female 15-20)
5-357: 13 Feb. 1836, George W. Duncan to Robert Portwood, both Lowndes Co. MS, $58, NW 1/2 NW half quarter, fractional Sec. 36, T17, R17W. Wit. John Portwood, Joseph M. Evans. (no wife) (FHL film 901,931)
6-101: 30 June 1836, John Huddleson, guardian of Paul and Early Hendrick, minor heirs of Gustavus Hendrick, and Lott W. Laws in right of his wife Rebecca Laws formerly Hendrick; probate court allowed sale of land; William Duncan was highest bidder, $302 by note of William Duncan with H.W. Hunt and William Eckford as surety, sell NE 1/4 and E 1/2 of NW 1/4 except 8.64 acres off W. side of said E 1/2 of NW 1/4 ... (FHL film 901,932)
21-82: 21 Nov. 1844, Paul Hendrick owes Lott W. Laws; mortgage by Hendricks to William Duncan, trustee, of lands (not copied) (FHL film 901,941)
21-582: 1 Nov. 1845, Ralph Graves of Lowndes Co. MS purchased for Ulittes? Faucett of Gainesville, AL, and P.E. Duncan of Greenville, SC, land from late Richard E. Meade of Lowndes Co. MS (not copied) (FHL film 901,941)
23-404: 27 Oct. 1846, William Duncan and wife Elizabeth to John Halbert Senior, all Lowndes Co. MS, $307, 41.09 acres, S 1/2 W 1/2 NE 1/4 Sec. 33, T18S, R18W. (FHL film 901,943)
24-104: 26 Sept. 1848, William Duncan and wife Elizabeth (X) to Methodist Episcopal Church South, $1, SE corner of NE 1/4 of Sec. 48, T18, R18, to build a church. (FHL film 901,943)
24-636-1/2: 16 Aug. 1849, George W. Duncan and wife Lucinda to Gabriel Shirley, $400, lot #4 of Sec. 25, T17S, R17W, 52.96 acres; and E 1/2 lots #1 & #2 of Sec. 26, T17S, R17W, 46.38 acres. (FHL film 901,943)
24-665: 22 Jan. 1847, Leander W.C. Sincecum and wife Beatrice to William Duncan, $227.1/2, S 1/2 W 1/2 NW 1/4 Sec. 34 and 4 acres (more land not copied) (FHL film 901,943)
26-299: 8 Dec. 1851, Thomas W. Brown to William Duncan, quit claim, 16 acres off E side N 1/2 E 1/2 NE 1/4 Sec. 33 and N 1/2 W 1/2 NW 1/4 Sec. 34 and 4.32 acres off W side N 1/2 E 1/2 NW 1/4 Sec. 4, all T ?, R18, 20.32 acres, adj. Benjamin P. Taylor. (FHL film 901,945)
28-128: 2 June 1854, Thomas B. Thornby to William Duncan; Thornby owes Early Hendrick; mortgage. (FHL film 901,947)
30-181: 22 Feb. 1855, William Duncan to Early Hendrick; sale of trustee land. (FHL film 901,949)
31-591: 1 Jan. 1859, John D. Bradford and wife Juliette R. to William Duncan, $100, 10 acres E side NE 1/4 SW 1/4 Sec. 5, T18, R18W. (FHL film 901,950)
31-642: 14 Oct. 1859, William Duncan and wife Jane (signed Elizabeth J.) to Isham Harrison Jr., $65, 10 acres (land in 31-591). Wit. Zy Wart. (FHL film 901,950)
32-521: 2 Jan. 1861, George H. Huns to ... and Wm. Duncan, trustee of Christian Church of Pleasant Grove, 2 acres (not copied) (FHL film 901,951)
35-52: 1 Jan. 1867, Elizabeth J. Jones to C.A. Duncan (her), $600, E 1/2 in town of West Point, a portion of Sec. 14, Twp 16, R6E (more not copied). (FHL film 901,953)
35-64: 15 Nov. 1849, John Duncan and wife Mary Ann to Sarah A. Baker, $1200, W 1/2 NE 1/4 Sec. 35, T18S, R18W, 82.87 acres; and N 1/2 SE 1/4 Sec. 35, T18S, R18W, 82.88 acres. Wit. William Mack, W.T. Woodfin. (FHL film 901,953)
35-640: 22 Jan. 1868, Elisha Strong and wife Ann of Monroe Co. MS to Celestia A. Duncan their dau. of Lowndes Co. MS, $1 and love, land (not copied) (FHL film 901,953)
36-154: C.A. Duncan from R.L. Ross - not looked at
"Reports of cases decided by the Supreme Court of Mississippi at the March term 1904 and November term 1904" Vol.84, reported by T. A. McWillie; Vol.84, pgs.763 to 776 (California State Law Library, Sacramento, 1/2004) (MAD: also see the cases in Clay Co. MS)
WHEELER WATSON v. BURWELL A. DUNCAN and WHEELER WATSON et al. v. BURWELL A. DUNCAN. (Two Cases.); Supreme Court of Mississippi; 84 Miss. 763; 37 So. 125; March, 1904, Decided.
FROM the chancery court of Lowndes county. Hon. James F. McCool, Chancellor.
Duncan, the appellee, was complainant in both cases in the court below; Wheeler Watson, appellant, was sole defendant there in one of the cases, and he and Henry Watson were defendants in the other case. From decree in complainant's favor, defendants appealed to the supreme court.
In January, 1894, appellee, Duncan, married Mrs. J. W. Manning. Before the marriage they entered into an ante-nuptial contract, which is set out in full in the opinion of the court. Mrs. Duncan, formerly Mrs. Manning, died in August, 1902, testate, leaving nearly all of her property, a large estate, to her two brothers, Wheeler Watson and Henry Watson. Part of the lands were devised to Wheeler Watson solely, and the other to him and Henry Watson jointly. Duncan renounced the will, and elected to take his share of the estate under the law. He filed two bills in the chancery court of Lowndes county, one against Wheeler Watson, the other against Wheeler Watson and Henry Watson, praying for the sale of part of the real estate for partition and for a partition in kind of the remainder. By agreement both cases were tried together on the same evidence. The defense set up to both bills was the anti-nuptial contract, the clause of which empowering Mrs. Manning to dispose of her property by will as she might desire being assailed by complainant as a forgery.
COUNSEL: Geo. C. Paine, for appellant.
To avoid a contract because it has been altered, the alteration must be material. A material alteration is a change which causes the instrument to speak a different language in legal effect from which it originally spoke. Any change in form and word merely, even if made by an interested party, which leaves the legal effect and identity of the instrument unimpaired and unaltered will not destroy the instrument.
The case at bar, tested by the law as announced, and even admitting the full force and effect of the testimony of Mrs. Eicholtz, will not entitle appellee to the relief prayed for, and the cause should be reversed and remanded.
But the appellee says this contract was a mere joke, a piece of pleasantry, and Mrs. Eicholtz and Mrs. Maronne agree with him. To these young people it may have been a joke; the action of this old man, the appellee, and Mrs. Duncan was calculated to impress them as being ludicrous. But to appellee and his wife it was real; it was earnest and solemn.
The testimony of Duncan, the appellee, is incompetent, and the exceptions to it should have been sustained by the chancellor.
William Baldwin, on the same side.
"An ante-nuptial marriage contract must ordinarily be in writing in order to satisfy the statute of frauds, but it need not be expressed in technical language or be in any particular form. It is sufficient if it set forth a definite, final agreement or promise in relation to the rights involved."
"Ante-nuptial contracts are to be liberally construed to carry into effect the intention of the parties, without regard to the strictly technical meaning of the words used. For this purpose the whole instrument should be considered, and evidence also of the situation of the parties, the surrounding circumstances, and all other matters that will throw light on the intention of the parties will be received."
Turning now to the contract before us, and considering the whole facts and surroundings of the parties, we have a widow lady in middle life, of feeble health, fairly well off in property, about to be married to a widower with grandchildren and no property. We find further that this woman about to be married to this man is deeply devoted to her brothers, with whom her whole life has been spent, and under contract with one of her brothers, for a consideration already received, to devise him, at her death, her most valuable property.
Now, this woman so circumstanced exacts a marriage contract as the condition of the marriage, and that contract is agreed to and signed and sworn to upon the Holy Bible.
That contract is written by another woman who, to use her own language, had never heard of a marriage contract before, but she in her way wrote it at the dictation of the woman about to be married. And that contract so agreed to, and so written, reads: That the woman is to have absolute control of her property and its management; that the man is not to ask her about her will, that she is to will her property to any person she wants to. How it is possible to find in this contract, so written and so framed, anything vague or indefinite as to the intention of the parties, can only be discovered by those who deal in subtleties that are not permitted unto any save the elect.
The testimony of Duncan, appellee, is wholly inadmissible, as he is testifying in his own behalf against the estate of a deceased person. And he is, moreover, testifying in his own behalf as to acts and declarations of a deceased person, and an alleged alteration of a contract made by such deceased person with himself.
If there was ever a case where both the letter and the spirit of the statute forbid his testifying, this is the case. Indeed, a stronger case for the exclusion of his testimony cannot be stated. Duncan v. Gerdine, 59 Miss. 550.
Betts & Sturdevant, for appellee. We do not deny that a husband can, by a proper instrument, relinquish his marital rights in his wife's property, but we claim that this instrument relinquishes nothing, and that it gives Mrs. Duncan no power as to making a will and disposing of her property that she did not already have under Sec. 4488, Code 1892, even if the court should consider the writing genuine, and that there is no more inconsistency between the marriage contract and the renunciation of the will by Duncan than there is between sec. 4488, which gives a married woman the right to devise her property as she wishes, and sec. 4496 of the same code, which gives the right to the husband, when unsatisfactory provisions are made, to renounce the will.
Duncan is a competent witness in this case. He is not testifying to establish his "own claim or defense against the estate of a deceased person which arose in the lifetime of such deceased person."
If it should be urged by the defendant that Duncan is testifying about an agreement made with Mrs. Duncan in her lifetime, that death having sealed her lips, the law will seal his, we would reply that he has a perfect right to testify as to anything, when the purpose of his testimony is to esetablish a claim that arose after the death or at the death of the deceased, and further that he is not testifying about an agreement made between himself and his wife, but denying that there was any such agreement.
The issue of fact, that the only sentence in the alleged antenuptial contract that is claimed to exclude Duncan from the exercise of his positive statutory right to renounce the unsatisfactory provision made for him in the will, was not in the contract as signed by him, is submitted to the court on the testimony read on the hearing; calling attention to sec. 564 of Greenleaf on Evidence (15th ed.), which puts burden on party offering (the defendants here) the instrument in evidence to explain its suspicious appearance.
The contract set up in each answer is new matter, and the burden of proving such a defense always rests upon those asserting it.
It is not denied by complainant that the signature, Burwell Alexander Duncan, is his writing, but the entire issue of fact in these cases is as to whether the writing, as it was when filed in these cases, and as it now exists, is the same writing signed by Duncan on the eve of his marriage.
In the first place, the very appearance of the paper itself casts discredit on it. It may be said to come in such "questionable" shape as to require those producing it to explain its appearance before its admission in evidence.
S. A. Witherspoon, on same side.
There are only two questions involved in the case, and they both arise not from any denial of the case as stated in the bill, but from two separate and distinct affirmative defenses set up in the answer, one of which goes to the entire estate described in the bill, and the other is limited to the lands in Coahoma and Tallahatchie counties.
The first question presented is whether or not the appellee's renunciation of the will of Mrs. Duncan is rendered void, because he had entered into an ante-nuptial contract which estops him from renouncing the provisions of her will.
The first reason why this so-called contract is not a surrender of appellee's right to renounce the will is because the writing contains no such provision. There is nothing in the writing by which the appellee professes to surrender those property rights which the statute gives him as the husband of the deceased, nor does he agree anywhere in this writing to surrender any of his rights, nor does he anywhere agree not to renounce any provisions of her will which might not be satisfactory to him. There is not only nothing of this kind expressed in the socalled contract, but the whole argument of the appellants is based on the contention that the appellee's surrender and release of his marital rights and his agreement not to renounce the provisions of his wife's will is an implication and inference from one sentence of this so-called contract. That sentence is in these words: "You can will your property as you want to any persons." And it is contended that because the appellee had thus agreed that his wife might will her property to such persons as she might choose, therefore he had agreed by implication that she should have the right to disinherit him. This contention is illogical and unfounded.
In the case of Williams v. Claiborne, 7 Smed. & M., 495, this court laid down the rule with reference to the construction of ante-nuptial contracts in these words: "We concur fully with the counsel for complainant that the marital rights of the husband cannot be defeated unless an intention be clearly expressed that the property is to be held for the separate use of the wife. Nothing is to be implied against him. This is the rule laid down by the authorities, and is one which we have heretofore recognized."
In the case of Carroll v. Renich, 7 Smed. & M., 806, the court says that by marriage agreement the marital rights are excluded only to the extent that a valid legal instrument operates to do so. Now, if the rule as laid down in the above cited authorities be the rule -- if, in other words, it is only by express stipulations that the marital rights of the husband can be surrendered, and if nothing is to be implied against him -- then the so-called ante-nuptial contract, in which nothing is said about the marital rights of the appellee, and in which we find no stipulation that he could not claim his statutory rights in the estate of his wife, and in which we find no agreement to surrender his right to renounce the unsatisfactory provisions of her will-the so-called contract does not amount to a defense.
The second reason why this so-called ante-nuptial contract does not surrender the appellee's right to renounce the will is that said contract is without consideration, and therefore has no legal effect. I do not deny at all that marriage is a good consideration for any contract or conveyance, but the facts of this case show that the pretended contract was not made in consideration of marriage. There is nothing on the face of the contract in regard to the subject of marriage. It does not state that the agreements contained in the paper were made in consideration of the agreement of Mrs. Duncan to marry the appellee; and if marriage was the consideration, that fact must be proven, not by the terms of the contract itself, but by.outside testimony.
All the testimony in the case shows that the appellee and Mrs. Manning had bound themselves by contract to their intermarriage long before this so-called ante-nuptial contract was suggested.
The so-called ante-nuptial contract was evidently a mere joke, and was so understood by all the parties present, not only Duncan, but both of the subscribing witnesses.
The fourth reason why the pretended contract is not a relinquishment of the appellee's statutory rights in the estate is that said pretended contract is contrary to public policy, and therefore void. It contains a number of stipulations which no court would attempt to enforce, and for the breach of which no court would award damages. If the contract be a valid one, then all of its terms are enforceable in the courts of the country, and it is manifest that a suit upon these terms of the contract would expose to public investigation those private matters of domestic life which it is the policy of the law to conceal from the gaze of the world.
In the case of Miller v. Miller, 16 Am. St. Rep., 431, the court considers the validity of a contract by which the husband had agreed among other things to pay to his wife a certain sum of money annually, and by which both parties agreed to refrain from scolding, fault-finding, and anger. The wife brought suit upon this contract to recover the amount promised, but the court held that she had no right of action, because in order to recover it was necessary for her to allege and prove that she had always refrained from scolding, fault-finding, and anger, and that this would raise an issue to be determined by the court, which would necessitate an investigation into matters of domestic life which would be fraught with irreparable mischief, and which were forbidden by sound considerations of public policy. This decision is based upon the ground that according to the genius of our laws and civilization matters pertaining to the home and its value as such, and which should be controlled by the influences surrounding it, should not become matters of public concern or inquiry.
CALHOON, J., delivered the opinion of the court.
Both these cases were submitted together, and will be decided together. Duncan was not satisfied with the provision made for him by the will of his wife, renounced, and claims one-half her estate, there being no issue of the marriage. He, while a widower of fifty-nine years of age, and she, while a widow of fifty, intermarried under a marriage contract. He admits signing the contract, but seeks to avoid it on the ground that she, after its execution, forged a vital part of it. At the time of the marriage he was without property, and she was, for this section, comparatively rich, and, from her standpoint, the ante-nuptial contract was, as we think, wise and proper in her surroundings; so the case must turn on whether the part of the contract italicized in the following copy of it was or was not a forgery:
"This is a contract entered into between Mrs. J. W. Manning and Dr. B. A. Duncan, this the 30th day of January, 1894. I will always let you do just as you wish about everything in this life. You will never keep house unless you wish and of your own accord. I will always let you attend to your own business, and will never ask you about your will. You can will your property as you want to any persons. I will love you above all else as long as life shall last. All this I will swear to. [Signed] BURWELL ALEXANDER DUNCAN. Witnessed this day by Mrs. Eicholtz and Mrs. J. E. Maronne."
On the next page are written, concededly by Mrs. Manning, these words:
"As Dr. B. A. Duncan has promised and sworn on the Holy Bible to keep this contract written on the other side of this sheet in every particular, I promise to marry him this evening, January 30, 1894. [Signed] J. W. MANNING."
The paper signed by Duncan was written by Mrs. Eicholtz at the dictation of Mrs. Manning, there being present Duncan, Mrs. Manning, Mrs. Maronne, and Mrs. Eicholtz when it was written and signed. There is no controversy as to the integrity of the document except as to the words, "You can will your property as you want to any persons."
Duncan was the first witness examined, and, waiving for the present his competency against the estate, he testifies absolutely that these words are forged, and, to make sure of fixing the forgery on his wife, he testifies that they are in her handwriting. Since the words appear consecutively in the instrument without paragraph, the proof of the forgery must be plain to destroy the paper as to them, especially as they are germane to the immediately preceding words: "I will never ask you about your will." Duncan is not a competent witness in this case, and all his testimony about what was done in his wife's lifetime must be retired from view.
We will examine the testimony of Mrs. Eicholtz, who wrote the instrument. Now, bearing in mind the only words objected to -- viz., "You can will your property as you want to any persons" -- Mrs. Eicholtz testifies that she did write something where those words are, but cannot remember what; but she says: "The words 'want to' and 'persons' I did not write, and I am not sure about the word 'property.'" With these three words left out, the sentence just following -- bear in mind, the sentence, "I will never ask you about your will" -- would read: "You can will your ---- as you ---- ---- any persons." The imagination can hardly fill these blanks with any intelligent words other than those she says she did not write. When asked what she did write there, she says: "I do not remember what it was, but I feel as if I thought, if there had been anything about willing property, I would have remembered it, as I remembered the other part of the contract." Note that "will" had appeared in the preceding sentence, which she did write, and note that other witnesses think the handwriting the same, and note that it was on very common paper, and note that eight years had elapsed, and it is much easier to conclude that the good lady was mistaken than to stamp as a deliberate forger the deceased, Mrs. Duncan, a lady of high character and intelligence, who manifestly had her mind on her will when the contract was drawn. It must also not be forgotten that Mrs. Duncan had carried this paper about with her for years.
Mrs. Maronne, the other lady present, says nothing was said "about willing property," but she says she looked on the whole thing "just as a joke," paid no attention, and did not put down her work to sign it as a witness, but got Mrs. Eicholtz to sign her name for her. These two witnesses hardly fix forgery on Mrs. Duncan in the light of all the evidence in the case.
We come now to the testimony of experts. Dr. Stockard, for Duncan, testifies that, in his opinion, the words "You can," the words "want to," and the word "persons" are not in the same handwriting with the rest of the paper. So, now, according to him, the reading in the same hand is: "---- ---- will your property as you ---- ---- any ----." But, as we have seen, according to Mrs. Eicholtz, the draftsman, it would read: "You can will your ---- as you ---- ---- any persons." Dr. Stockard thinks the words filling the blanks resemble the handwriting on the reverse side of the paper, written, as all concede, by Mrs. Duncan, but he says: "I can't be positive about the identity of the handwriting on the two sides of the paper."
Col. W. C. Richards, summoned as an expert by Duncan, thinks the words "want to" were not written by the person who wrote the contract, and is "inclined to believe" the words "you can" were not. So at most, according to his opinion, the sentence would read: "---- ---- will your property as you ---- ---- any persons." According to Mrs. Eicholtz: "You can will your ---- as you ---- ---- any persons." According to Stockard: "---- ---- will your property as you ---- ---- any ----." Col. Richards also thinks the word "to" after "want" is in the handwriting of the reverse page written by Mrs. Duncan.
Mr. T. B. Franklin thinks there is a "reasonable doubt" about the words "you can" and "want to" being written by the same hand. He says all the balance is in the same handwriting. Further on he is decided in the opinion that the words "you want to" are in an entirely different handwriting. So, according to him, the reading is: "---- ---- will your property as ---- ---- ---- any persons." According to Mrs. Eicholtz: "You can will your ---- as you ---- ---- any persons." According to Stockard: "---- ---- will your property as you ---- ---- any ----." According to Col. Richards: "---- ---- will your property as you ---- ---- any persons."
Mr. H. Osborn says the words "you" and "can" and "property" and "want" and "to" and "persons" are different in handwriting from the body of the contract. So, according to him, the reading is: "---- ---- will your ---- as you ---- ---- any ----."
Mr. P. W. Maer, for appellee, discards "you can" and "property" and "want to" and "persons," and so, according to him, the genuine sentence is: " ---- ---- will your ---- as you ---- ---- any ----."
R. F. Williams, for appellants, testifies that, in his opinion, the whole of the contract is in the same handwriting, and no forgery about it.
C. H. Ayres, for appellants, testifies that in his opinion "the person who wrote the body of the document wrote the entire thing, with the exception of the signature."
Now, the original paper is before us. We have examined it with great care and with a powerful magnifying glass. In the only controverted sentence, which is, "You can will your property as you want to any persons," we see that the word "property" seems to be written above a thin place in the paper, or an erasure, and so of the last syllable "sons" of the word "persons," and so of the word "want;" and the word "to," just after it, is very close between "want" and "any." Now, at the risk of being tedious in this important case, involving the good name of a dead woman of flawless reputation, we put in juxtaposition what each and every witness says in reference to the only disputed clause, which is: "You can will your property as you want to any persons." Duncan says the whole sentence is a forgery. He is contradicted by every other witness. Mrs. Eicholtz would leave the genuine sentence thus: "You can will your ---- as you ---- ---- any persons." Mrs. Maronne remembers no talk about willing property. Dr. Stockard would leave the sentence thus: "---- ---- will your property as you ---- ---- any ----." Col. Richards thus: "---- ---- will your property as you ---- ---- any persons." Mr. Franklin thus: "---- ---- will your property as ---- ---- ---- any persons." Mr. Osborn thus: "---- ---- will your ---- as you ---- ---- any ----." Mr. Maer thus: "---- ---- will your ---- as you ---- ---- any ----." Mr. Williams thinks the whole in the same handwriting with the rest of the contract. Mr. Ayres thinks the same person wrote "the entire thing." All the experts called on both sides had about equal opportunities to become experts. Col. Richards, for appellee, says there are marks of erasure at the words "property" and "persons." H. Osborn, for appellee, says there "appears to have been an erasure under the words 'you' and 'property' and 'want' and 'persons' in the last syllable of it," and that he "noticed a distinct thinness of the paper at those points, and a thinness in another point of the paper," not controverted. P. W. Maer, for appellee, says "it looks as if" there were erasures at "can" and "property" and "sons" in the word "persons," and ascertains this by holding the paper to the light, when "it appears thinner and more transparent." R. F. Williams, for appellants, says he sees thinner and more transparent places at "want" and "sons" in "persons," but cannot say whether the appearance under the word "property" is thinness or erasure. C. H. Ayres, bank teller, witness for appellants, says: "Under the word 'property' it seems to be a natural thinness of the paper. In the word 'want,' where the letter 'a' occurs appears to have been erased." In all the conflict of testimony and contrariety of expert opinion in this case, and the uncertainty, from the lapse of time, poor quality of paper, and its usage, whether the changes were made before or after its execution, and the nonsense of the sentence without the words objected to, we recoil from fixing the brand of forgery on the memory of Mrs. Duncan.
The other contentions of appellee we regard as without merit.
Reversed, and decree here in both cases dismissing the bills in both cases; costs of both to be taxed appellee.
Monroe Co. MS Deed (SLC 6/21/2008)
2-233: 1 May 1838, Robert Dowdle of Monroe Co. MS for love and affection to William Duncan, and to the end that he may maintain himself and for diverse other good causes (more not copied), all my goods, chattles and personal estate, that is to say, bed & furniture, household goods, all 14 head of cattle and stock of hogs, bay mare, negro boy named Toney slave for life about age 11 years, all my plantation & tools. Wit. John McClanahan, Peter R. McClanahan, John Duncan. Robert Dowdle appeared 12 May 1838. No wife. (FHL film 878,381) (MAD: see Lowndes Co. MS; John Duncan mar. Mary Ann Dowdle in 1825 in Tuscaloosa Co. AL, 1850 Caldwell Co. TX)
Pickens Co. AL Record of Petitions (FHL film 1,728,022 item 2)
A-291: 18 Jan. 1896, Petition by Wm. C. Duncan of Pickens Co. AL, that his father W.J. Duncan died in Pickens Co. AL on 13 Dec. instant 1894 (MAD: sic), having made a will, witnessed by E.W. Bennett, T.H. Anderson and J.G. Pridmore, and left surviving him as legatees under the will and as his only heirs at law; and petitioner named as one of the executors; (1) Eurgula? J. Woods adult wife of J.G. Woods, Lowndes Co. MS, Dorr P.O.; (2) W.F. Duncan, McBee, AL, adult; (3) Wm. C. Duncan, McBee, AL adult; (4) J.H. Duncan, McBee, AL, adult; (5) Lula J.A. Duncan, McBee, AL adult; (6) Canzada C. Ellie, adult, wife of L.C. Ellis, Lowndes Co. MS, New Hope P.O.; (7) Hattie H. Duncan, Lowndes Co. MS, Dorr P.O. adult; (8) Mary B. Duncan, McBee, AL, adult; (9) Stella B. Duncan minor over 14 years residing with her mother S.A. Duncan, McBee, AL (10) Jessie J. Duncan, minor over 14 years residing with her mother S.A. Duncan, McBee, AL (11) S.A. Duncan adult widow of said decd, McBee, AL.
Big Creek Baptist Church minutes, near Carrollton, Pickens Co. AL (from Gene Harper 10/2002)
GH: The original transcription was made by Mr. J.T. Turnipseed of Lindale, Texas from the original church records. At that time, the records were in the possession of Mrs. J.H. (Lola) Curry of Carrollton. Mr. Turnipseed gave permission (to MAD through Gene Harper's conversation with him) to use the record.
Page 219 of the July 1873 Church Conference: Received Brother Dabney Duncan and wife Sister Delilah S. Duncan by letter.
Pages 243. 244 and 245 from the July 1879 Conference: Whereas God has been pleased to remove from us, our esteemed brother and father in Israel Elder Dabney Duncan, we as a church feel called upon to express our regard as to the worth of our esteemed and venerable brother, a tribute to his memory.
Therefore be it resolved that in the death of Eld. Dabney Duncan, Big Creek Church has lost one whose place can never be filled. One who was ever conspicuous in advocating what he believed to be right. His life was a long and useful one in the service of his master. Very soon after professing a hope in Jesus Christ he was impressed with the onerous duty of preaching the gospel and consulted not the flesh, but took up his cross and ever after, amidst all the vicissitudes of life, he was zealous and faithful in warning sinners to flee the wrath to come and accept mercy. And when age produced such infirmities of the body as to make it obligatory to cease serving the church as Pastor. Yet he upon every opportunity failed not to preach Christ and the riches of His grace. In truth his zeal seemed to increase with age, for some of his last appeals were the most earnest of his life. We deem it expedient to add the following short biography of his life.
Eld. Dabney Duncan was born in Albemarl County, Va. March 15, 1796. When quite young he with his parents removed to Fairfield County, S.C., and here in 1824 he professed faith in Jesus Christ and was received into the fellowship of Rock Creek Baptist Church and buried with Christ in baptism by Eld. Abner Fant in Rock Creek. Very soon Bro. Duncan was impressed with the duty of preaching the gospel, and it appears he removed his membership from Rock Creek to Beaver Creek, and that he was by the latter called to the full work of the gospel ministry in 1827. The Presbytery consisted of Elders Wm. McCrary, Wm. Joiner and Nicolas Roberts.
He sent 18 years in proclaiming the "good news" of salvation in the "Palmetto" State and through his labors many were enabled to believe unto righteousness. He removed to Pickens Co., Ala. in 1845 and joined the South Carolina Baptist Church. Eld. Duncan served various churches in Pickens Co., Al., and Lowndes Co., Miss., as pastor. He was for some years a member of Cross Roads Baptist Church, but finally joined Big Creek Baptist Church where he continued till his death, which occurred March 14, 1879. Thus has passed away a veteran of the Corp. His work is ended-yet his works remain as a memorial of his perseverance. He had not the advantages of an early education yet he was a close observor of men and things, and was preeminently what may be called a practical man. As Christians let us emulate his worth that we may like him be present with the Lord. Let us pray the Lord to send more laborers into the harvest, and that his mantle rest on some modern Elisha to the honor of and glory of God the Father.
Done by order of the church at Big Creek in conference, Saturday before the second Sabbath in July, 1879. G.M. Lyles, Moderator. I.M. Noland, Clerk.
"A history of Columbus, Mississippi during the 19th century" (Lowndes Co.) by W.L. Lipscomb; pub. Columbus, Miss.: S.D. Lee Chapter of the Daughters of the Confederacy, 1909, 202 pgs. (LH8552, HeritageQuest images 2/2007 & 5/2007; no index; FHL film 1,689,305)
Pg.156: Columbus Riflemen of 1860-65. Officers: Fourth Sergeant Ed Duncan. (pg.157) Mustered into the Confederate States service at Corinth, Miss., May 27th, 1861, and was known as Company K., Fourteenth Regiment, Mississippi Infantry, ... Ed K. Duncan, Fourth Sergeant, died at Camp Douglas.
1907 "A history of California and an extended history of its southern coast counties : also containing biographies of well-known citizens of the past and present" by Prof. James Miller Guinn, pub. by Historic Record (CA State Library book qc979.4 G9, Vol.2; FHL book 979.4 H2g and film 468,759 and film 1,000,099)
Pg.1507: DUNCAN, William P., known throughout Compton [Los Angeles Co.], died 15 April 1899 on his home farm. Native of MS, born 23 Feb. 1826 Lowndes Co. MS, about three miles from city of Columbus where his father William Duncan, an extensive cotton raiser, had large mercantile interests; William was born in NC and his wife Jane Dowdle was a native of MS & life-long resident of that state. William P. to Texas 1851, stock business upwards of quarter of century; to New Mexico 1878 for about five years, then disposed of stock and moved to Kansas City, MO; 4 years later to CA 1886, resided in Los Angeles for a few months, then bought land near Compton. Mrs. Duncan also owns 160 acres wheat land in Riverside Co. in the Alamos school district. Mr. Duncan married 1859 in Texas to Elizabeth J. Hall, born TN, daughter of John M. and Elizabeth (Moore) Hall, also natives of TN. Mr. Hall, a stock-raiser & dealer, moved from TN to TX after the death of his wife, and there spent his last years, Mason 12 years before he died, he & wife in Baptist Church. Mr. & Mrs. Duncan had six children: John W. married Dollie Conner & has one son; James E. died age 41; Mary P. died age 39; Robert M. of Arizona; and David P. and Harry H. living at home. Democrat, as was Mr. Hall, four of his sons served in Civil war on Confederate side. (MAD: 1850 Caldwell Co. TX census; 1860 San Saba Co. TX census)
"MS Genealogical Exchange" Vol.10, 1964, pg.59 (FHL book 976.2 B2g; from Evelyn Sigler 1984)
This periodical and other sources include mention of the Pension of John Daves, widow Elizabeth, Wo. 8,987, WC 6,241, for service in the War of 1812 as a Corp. in Capt. James Thompson's SC Militia; enlisted Jan. 25, 1814; discharged Aug. 9, 1814; resided 1850-1855 Lowndes Co. MS; widow resided Lowndes Co. MS 1872; her maiden name was Elizabeth (Betsy) Duncan; they married 27 March 1805 Anderson Co. SC; he died 11 Jan. 1863 or 64 in Lowndes Co. MS.
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