Duncan research files of
1790 Craven Co. NC Census Pg.132 Duncan, Thomas 100xx 1800 Craven Co. NC Census No Duncan indexed 1810 Craven Co. NC Census missing 1820 Craven Co. NC Census Pg. 71 Lucy Dunken Free colored Wm. Dunken 210100 - 10100 76 Molly Dunken Free colored 1830 Craven Co. NC Census Pg.139 William Dunkin Free colored 1840-1850 Craven Co. NC Census No Duncan indexed
1860 Craven Co. NC Census
Swift Creek P.O.
Pg.213, #498, Edmon DINKINS 47 NC farmer $600-$300
Adia 44 NC
Benjamin 16, Rosella 14 NC
Augusta 12, George 10 NC
John 8, Caroline 5 NC
1870 Craven Co. NC Census
Pg.308, #89-89, DUNKIN, James 35 NC (white) farmer $1,000-$500
BALLINGER, A.F. (m) 29 NC farmer $150-$200
DUNKIN, Sarah 22 NC keeping house
Pg.333, #21-23, DUNCAN, Anderson 34 NC BLACK R.R. laborer $0-$0
Fanny 32 NC BLACK keeping house
New Bern, Ward 6
Pg.408, #83-92, DUNCAN, Susan 35 NC BLACK laundress $0-$0
Joseph 38 NC BLACK R.R. laborer
Cora (f) 2 NC BLACK at home
Pg.408, #84-93, DUNCAN, Betsey 23 NC BLACK keeping house $0-$0
Beckton (m) 26 NC BLACK R.R. laborer
GOWNS, Ainnie (f) 18 NC BLACK no occupation
SEARS, Joseph 7 NC MULATTO at home
Pg.417, #264-282, DUNCAN, Mary 41 NC BLACK domestic servant $0-$0
John 19 NC BLACK farmer
Hepsey (f) 13 NC BLACK farm laborer
Elizabeth 18 NC BLACKS farm laborer
(MAD: ages as given)
Pg.499, #133-134, BARRINGTON, Wm. 34 NC (white) farmer $430-$100
Catherine 40 NC keeping house
DUNKAM, McKay (m) 11 NC (white) farm laborer
Craven Co. NC Probate Records
Probate Packets 1736-1857 A-E - no Duncan (FHL film 288,332)
Loose Wills 1760-1890 A-H - no Duncan (FHL film 288,344)
Loose wills, etc., 1746-1865 A-S - no Duncan (FHL film 288,343)
Loose Estate Records 1740-1870 A-H - no Duncan (FHL film 288,337)
Craven Co. NC Original Estate Records at NC Archives (FHL film 1,822,751)
DUNCAN, THOMAS, 1793. (Frames 975-7) Bond for William Henry, security Francis Lawthorp and Levi Dawson, for £100, 12 Dec. 1793; William Henry the admin. of Thomas Duncan decd; wit. N. Chopman. (nothing else in file)
1910 "Abstract of North Carolina Wills [1690-1760] compiled from original and recorded wills in the office of the Secretary of State" by J. Bryan Grimes (Sacramento FHC book 975.6 P2gr, FHL fiche 6,046,876)
Moses Fogg. December 3, 1751. March 20, 1751. Legatees and devisees: Grace Fogg (daughter of Johnwats Fogg, 300 acres of land on Nuse River), Mathias Benston. Executor: John Lane. Witnesses: John Duncan, Nicholas Routledge and Nathan Alexander. Clerk of the Court: Jno. Snead. (pg.123)
William McAlpin. October 28, 1747. November 7, 1747. Formerly of Sterlingshire in Scotland. Wife: Hannah (in London). Daughter: Hannah McAlpin (in London). Mother: Jane Mackey (Earthtown in Sterlingshire, Scotland). Executor: Thomas Richey, of Jamaica. Witnesses: Francis Stringer, Honnora Duncan, Catherine Liddle. Proven before E. Hall, Chief Justice. (pg.227) (MAD: Honour Duncan filed account of estate of John Duncan in 1754, from "Early Records of NC; Loose Papers & Related Materials" Vol.3, by Stephen E. Bradley Jr.)
Craven Co. NC Deed Indexes D-G 1739-1912 (Grantors p.15 Duncan and p.80 misc. D. on FHL film 18,629; Grantees, p.72 on FHL film 18,634)
2-32: 1759, William Heritage to Honora Doncan, deed
2-412: 1743, Town of New Bern (Comrs) to John Doncan, deed
2-415: 1743, John Doncan to Francis Stringer, deed
2-422: 1743, Town of New Bern (Comrs) to John Doncan, deed
5-183: 1749: Abraham Duncan to Abraham, John, George, Mary, Robert Duncan, will
9&10-222: 1745, Joseph Harris to James Duncan, bond
9&10-222: 1755, James Duncan to Rip Van Dam, P of atty
11-290: 1763, Honora Duncan to Peter Conway
16-159: 1768, William Heath et al to Thomas and Susanna Duncan, lease
42-61: 1817, William Dunkan to John Franklin, deed
42-423: 1821, Shaderick Gatlin to William Dunkan, mortgage
45-34: 1826, Susanna Kornegay et al to William Duncan, tr. deed
48-198: 1831, William Duncan et al to Bothwick C. Gillespie (tr), tr.d
(next grantee 1869, grantor 1870, not copied)
Craven Co. NC Deed & Record Books
2-32: 29 June 1759, William Heritage to Honora Doncan, widow, both Craven Co. NC, £25.13.4, sell to Thomas Doncan, 1/2 acre lot in Newbern Town, Craven Co. NC, where John Daron? (not Duncan) late of New Bern decd formerly lived, in virtue of a deed of sale made by John Doncan in his lifetime to said William Heritage, 25 Dec. 1757; wit. Charles Bonny?, Wathell? Mindine?. (FHL film 18,639)
2-412: 9 Feb. 1743, Comrs. of New Bern to John Doncan for 8 sh., 4 town lots, corner between Pollock Street and Eden Street, being lots 190, 191, 197 (199?) and 200, 2 acres; Doncan to build a house. Wit. Jas. Durham, Mallachi Johnson. (FHL film 18,639)
2-415: 21 Jan. 1743, John Doncan to Francis Stringer, both Craven Co. NC, £250, 22 acres lying about 2 miles from Newbern Town adj. lands of Eleaner Allen Esq. (sic) and is the whole of a survey granted to said Francis by patent 8 Sept. 1737, being on S.side Nuse River, corner his land and said Wm. Allen's, incl. the pond pocoson with all houses, etc.; wit. James Coor, George Stringer, Geo. MacCarthy. (FHL film 18,639)
2-422: 9 Feb. 1743, New Bern Comrs. to John Doncan, £3, 3 lots #81, 83, 84, in New Bern, beg. at corner between Pollock Street and Middle Street; wit. James Durham, Mallachi Johnson. (FHL film 18,639) (MAD: an inquest was held in Craven Co. NC on 6/24/1745 into the death of Keziah Duncan, wife of John Duncan; from "NC Gen. Society Journal" 1975)
5-183/185: Will of Abraham Duncan of Beaufort Co. NC, merchant, 3 Feb. 1749; To wife Mary Duncan 350 acres lying at back of my said wife's land in the Savannah commonly called Kenyon's Savannah, and also 3 acres whereon my tanyard stands, one lot #12 and house in Bath Town with the Front and Storehouse thereon, likewise one other lot #65 in said town, #65, to her and assigns. To my two nephews George Duncan and Abramham Duncan (sic), sons of John Duncan of Londonderry in New England (MAD: later Rockingham Co. NH) my plantation on the south side of Pamplico River in Beaufort Co., 150 acres, and one other tract of 300 acres on the south side of Tar River granted me by patent dated 28 Feb. 1743 to be equally divided between them. I also give my nephews my right and title in two surveys of land made on Swift Creek containing about 300 acres each, yet my will is that provided John Rice pay the expences I have born at about one of the said tracts & is willing to take out a patent for that tract on the south side of the North Branch of Swifts Creek near the cowtun? Meadow, John Price shall have the preference to take out a patent for the tract, otherwise I desire my nephews to patent both tracts for their own use. To my nephews six cows and calves, two breeding mares and one horse called Shaver which are at my plantation, & the tools of husbandry & utensils belonging to the plantation. To my brother James Duncan my silver watch, to my brother William Duncan my silver shoe buckels & horse? (horn?) buckles, to my brother John Duncan my walking cane, to my brother Robert Duncan 20 pounds in bills, & to my sister Hester Cason 10 pounds bills to buy them rings to perpetuate my memory. To my brother George as a token only of my affection my non? great coat. All my negroes, horses, stock of cattle, & goods & chattels whatsoever, to my wife Mary Duncan and appoint her sole executrix. I leave my daughter in law Mary Parver (?Power?) a suit of mourning. Abrahm. Duncan. Wit. Thomas Pearson, John Simpson Junr, James Adams, Wy. Ormond. Proved First June court 1751, by oath of Wyiatt? (Wyristt?) Ormond, Thos. Pearson, who saw John Simpson and James Adams subscribe; Mary Duncan, Relict, qualified as exec. /s/ William Ormond Clerk. (FHL film 18,641; also from Roy Hall)
9&10-222: 11 Nov. 1755, James Duncan of City of New York, Merchant, appoint friend Rip Van Dorn of same, merchant, attorney to recover money due me by Joseph Harris formerly of Duchess Co., Province of NY, Deputy Sheriff, but at present of NC; wit. Benjamin Heline?, Thomas Ludlow, Daniel Bates.
10 May 1745, Ack. by Joseph Harris of Duchess Co. NY that he owes James Duncan £9.13 due 1 Aug. next, bond for £19.4.2.; wit. Bartholomew Cadwell?, Joseph Harris. (FHL film 18,644)
11-290: 18 Oct. 1763, H. Duncan, widow, of Craven Co. NC, to Peter Conway of New Bern Town, Gent., for £30, lot 81 deeded to her by Wm. Herritage Esq. 29 June 1759; wit. Isaac Patridge, C. Neal, Mary Weeks; /s/ Horona Duncan. (FHL film 18,645; book 11 is typed)
16-159: 11 Jan. 1768, William (X) Heath of New Bern, yeoman, and wife Ann (X), to Thomas Duncan late of said town, sadler, and wife Susanna, for 5 sh., lease for yearly rent, 1/4 part of lot in Town of New Bern whereon I now live, lot # (blank), adj. Andrew Moyer's lot; if Thomas dies before his wife, she continues the lease for her life or widowhood; wit. N?. Ward, Rigdon Brice. (FHL film 18,648)
42-61: 31 Oct. 1817, William Duncan of Craven Co. NC to John Franklin, $20, 2 acres on SW side of main road, Adam Moore's line, James Foys patent; wit. Thomas Parsons; ack. in court June 1820. (FHL film 18,671)
42-423: 25 June 1821, Shadrick Gatlin of Town of New Bern, Craven Co. NC, to William Dunkan, constable of same, for $1, dwelling house on corner of Craven & New Streets, on ground leased of John F. Smith Esq. where I now reside, that Dunkan holds 2 judgments against said Shadrick Gatlin, one dated 24 Jan. 1820 for $26.50, and one dated 23 Jan. 1821 for $38.06; mortgage. Wit. Ed C. King. (FHL film 18,671)
45-34: 18 Dec. 1826, indenture of three parts; Susannah Kornegay of first part, Elijah Scott of 2nd part, and William Duncan of third part; marriage intended between Susannah Kornegay and Elijah Scott, who have agreed that all the estate of Susannah shall be settled and secured to certain uses, and in consideration of the settlement, Susanna shall be barred of all claim to a share of the personal property and of dower in the land of Elijah Scott. Now in consideration of that agreement and of $1 paid by William Duncan to each, ack. by Susannah Kornegay and Elijah Scott, Susannah Kornegay with consent of Elijah Scott her intended husband, testified by his being a party to this, sold to William Duncan all the real estate which she, Susannah Kornegay, is seized or entitled to either by descent from her deceased brother Isaac Kornegay or her deceased nephew Lewis Morris, in trust, and also her interest in the distributive share of personal property of said Isaac Kornegay decd and the said Lewis Morris, and also all debts due Susannah either of bond, note or account, and a negro girl Dorcas about ten years of age; after Susannah's marriage, the money to be paid Susannah or her order at her sole discretion, without the interference or control of Elijah Scott her intended husband; and to permit Elijah Scott to have the use, income, etc. of the items in trust during the joint lives of Susannah and Elijah in such a way that the principal shall (not) be liable to the debts of Elijah. After the death of Elijah Scott if Susannah is living, she to have the use for life, and at her death, in trust for the use of such children of Susannah as may be living. If Susannah does not survive Elijah or if she has no children living at her decease, then the property is transferred to the sisters of Susannah, namely, Winney the widow of James Harriot, and Civil the wife of said William Duncan, for their lives, each one half part; after the death of the sisters, their share in trust to the children of each. Elijah Scott releases to William Duncan the lands and slaves and other property, and Susannah releases her right of dower. /s/ Susan Kornegay, Elijah Scott, Wm. Duncan; wit. F. Woods, Michl. H. Leule. Reg. Dec. 21, 1826. (FHL film 18,674; also from Roy Hall)
48-198: 29 April 1831, Elijah Scott and wife Susan of first part, William Duncan of 2nd part, Bothwick C. Gillespie of third part; whereas an indenture of three parts on 18 Dec. 1826 between said Susan therein named Susan Kornegay of 1st part and said Elijah of the 2nd part, and said William of 3rd part, that in contemplation of marriage about to be solemnized between said Susan and said Elijah, that Susan granted to said William all the real estate that Susan possessed or was entitled by descent from her brother Isaac Kornegay or her nephew Lewis Morris or any other means, with the privily of said Elijah, and also assigned to William her right to a share of the personal property of said Isaac Kornegay decd and said Lewis Morris, and all debts due her, and a negro girl Dorcas then aged about 10 years; upon conditions that after marriage, money be paid to said Susan or her order at her sole discretion without interference of said Elijah, and that Elijah have use, enjoyment, income, rents and profits of the lands, negroes, and shares during their joint lives in such a way that they not be subjected to debts contracted by Elijah, and after the death of Elijah if Susan were living, in trust to permit her to have the use of the property for life and at her death to her children if living, or if Susan should not survive Elijah or if she had no children, then the property to go to Winney the widow of James Harriot and Civil the wife of said William, for their lives, each 1/2 part, and then to their children. And that by said indenture Elijah released to William the lands, slaves & other property for the uses and intended interest and trust, and Susan accepted the settlement in lieu and bar of her right of dower; the indenture is registered in Craven Co. WHEREAS in a suit in the Court of Equity for Craven Co. and afterwards removed for a final hearing to the Supreme Court of NC in which Elijah Scott and Susan who had intermarried with Elijah, were complainants and William Duncan defendant, the court declared the indenture ought to have contained and declared a trust for Susan in fee of the lands therein settled and a trust for Susan absolutely of the personal property therein settled in case she survived Elijah or became discovert, and also a power of revocation and appointment by will in a paper writing properly attested by two credible witnesses in the nature of a will executed during the coverture in case she died in the lifetime of her husband. The court decreed that the marriage settlement be reformed in the particulars mentioned and that a conveyance be made to the trustee as selected, to be executed by the plaintiffs and defendant and trustee, to refer to the deed mentioned in the pleadings, to be ack. before a Judge of the Superior Court or of the Supreme Court; that Elijah and Susan have selected said Bothwick as the trustee. Now, this indenture, to carry out the decree, for $1 paid Bothwick severally by Elijah, Susan, & William, they transfer to Bothwick all the real estate, distributive shares, debts, negroes and other property which were conveyed to William in the indenture, upon the same trust, except it is expressly provided that if Susan should survive the marriage and become discovert of her husband, then the lands, etc. shall be conveyed to Susan, her heirs, etc., the real estate in fee simple and the personal estate in absolute property; and that Susan shall and may at any time during her coverture by will or writing, with two witnesses, in case she should die in the lifetime of her husband, revoke all or any of the trusts in this or the former indenture as to the whole or any part of the real estate, negroes, etc., and appoint such trusts and conditions as she may deem fit; and that Elijah covenants with said Bothwick that he will not allow the items to be encumbered, etc. /s/ Elijah Scott, Susan Scott, Wm. Duncan, B.C. Gillespie; wit. Joshua Scott; approval by John L. Henderson, clerk of the Supreme Court, of Bothwick C. Gillespie the trustee, 25 Jan. 1831. Joshua Scott the witness and Susan Scott the wife of Elijah Scott in court. (FHL film 288,194; also from Roy Hall)
"Equity cases argued and determined in the Supreme Court of North Carolina, June term 1828 to December term 1830" by Thomas P. Devereux, Vol.I (spine title "No. Carolina Reports [Vol.] 16 - Devereux's Equity Vol.I); Vol.16, pgs.403 to 411 (California State Law Library, Sacramento, 1/2004)
ELIJAH SCOTT and SUSAN, his Wife, v. WILLIAM DUNCAN; Supreme Court of North Carolina, Raleigh; 16 N.C. 403; 1 Dev. Eq. 403; June, 1830, Decided.
From Craven. This was a bill filed by the plaintiffs to reform a settlement made by them in contemplation of their marriage, whereby the property of the plaintiff Susan, then Miss Kornegay, was conveyed to the defendant in trust to permit the plaintiff to have the use of it during the joint lives of himself and his wife, without being subject to his debts; and from the death of the husband, in case his wife should survive him, then in trust for her use; and at her death, in trust for the issue of the marriage; and in default of such issue, then to the sisters of the wife, of whom the wife of the defendant was one.
The case, both upon the bill and answer, and the proofs, is fully stated by RUFFIN, J.
(opinion) RUFFIN, J. This bill is filed to annul or reform a marriage settlement of the wife's estate, executed on the day of marriage, in which the defendant Duncan is trustee, upon the ground, that it was obtained by the fraud of the defendant, or was executed by the plaintiffs, under a mistake of the wife, relating to a material part of it. The estates are settled to the use of the husband and wife for their joint lives, but not subject to his debts or disposal; and if she survived, to her for life; and upon her death without issue living, over to her two sisters and their children. The defendant Duncan married one of the sisters, and his family thus have the benefit of one-half of the estate, in the events just mentioned.
There is no pretense for setting aside the conveyance altogether; for it is clear that a settlement of some sort was deliberately intended by the parties. On the other hand, it is equally clear that if the settlement actually made does not conform to the agreement of the parties, by omitting material parts of it, through a mistake all around, or through the fraud of either of the parties to it, equity will, upon clear proof being made of such fraud or mistake by proper evidence, rectify it.
It is material to observe that this is not a controversy between the husband and wife, between whom the marriage is a valuable consideration. Between them, or as relates to the issue of the marriage, the provisions of the deed would be more carefully scanned, either by themselves, their friends, or counsel. A bargain is always more regarded than a gift. The difficulty here is with mere volunteers, who ungraciously say they have got a donation, and will hold it at all events. They will not hold it, if it has been obtained by surprise, undue influence, and abuse of confidence, by a person trusted to have the deed drawn up, or by the mistake of the parties as to its contents.
A most important circumstance presents itself to our consideration upon first opening this case. The deed is an absolute and irrevocable disposition of the property, although made by a person who was not likely to have issue. That an absolute settlement should be made on the children of the marriage would not surprise us. We should expect that the husband would require it, and not leave it to the wife, without his consent, or that of the trustee, to appoint it away to strangers, or to the issue of another marriage. But here issue, though mentioned in the deed, could hardly have been anticipated by a lady fifty years of age. In such case the want of a power of revocation and reappointment astonishes. It is against the proneness of the human heart to retain the dominion over property. But if we are surprised at finding no such power reserved to the wife during the coverture, how much more must we be struck when we come to see that although the deed contemplates her surviving the husband, yet in that event also her hands are perfectly tied. Her estate does not become her own again, though her necessities may require a sale. She is not even allowed to devise it among her own relations. This deed fixes by irreversible doom the course of the lady's estate, against her own necessary use of it, and power of reasonable disposition after discoverture; and this, not as against her own children, but as to collaterals, who are strangers to the consideration upon which it was made. It is impossible for a court of justice to say that any extrinsic evidence, anything out of the deed itself, could entirely remove the suspicion of fraud or of mistake, arising from gross ignorance in the parties, which these strange omissions create. Nothing but imposition, or taking advantage of a fatuous confidence, could bring to the point of actual execution such an instrument. Upon the face of the deed it is fraudulent.
In the case before us the parol evidence does not weaken, but fortifies, the conclusion to which the deed itself points. The answer indeed denies the fraud. The defendant says the husband was in debt, and he felt bound to mention it to his sister-in-law; that it was deemed by him and her an act of prudence to secure the estate from his creditors, and also to protect her from his influence after marriage; that this was perfectly understood by her, and that in consequence of it she, in the presence of Scott and the defendant, gave the directions for the settlement as it was drawn. Admit this, and it yet remains to be accounted for why she is left in bonds after her husband's death. But passing that by for the present, let us see how the facts are in relation to the wishes and directions of the wife. After they were given, the defendant admits that he and Scott were to attend counsel together to communicate them; and that before they left the defendant's house, Scott told him that he understood them differently. As he understood the lady, a power was to be reserved to her, notwithstanding the coverture, to dispose absolutely of the estates. This would have been an extraordinary power, which the husband would not readily have agreed to, if issue had been expected. But not anticipating that, it would have argued an improper design on the part of the husband, since it would have left the wife too open to his persuasions or his compulsion. The truth is, all the parties seem to be very uniformed people. I have no doubt that the substance was that a proper power of revocation and appointment was to be inserted, and the parties meant to leave it to counsel to settle, whose duty in such a case is, obviously, to frame it, as this Court would do, if such a stipulation rested in articles. Upon the objection of Scott, reference was again had to the lady, and the defendant says she confirmed her former instructions, and Scott expressed his satisfaction. The account then given in the answer is that he and Scott went together to Mr. Stanly to draw the deed; that there the same difference occurred, when they resorted to the lady for the third time; that she repeated her former words, whereupon Mr. Stanly, in conformity thereto, and with Scott's privity, drew the deed, which was read and explained to Mr. Scott, who perfectly understood it, and freely executed it. The answer, it is thus seen, unequivocally asserts that the lady did not wish any power of disposition to remain in herself, but at three different times, and in contradiction to the pertinacious contention of the intended husband to the contrary, gave her instructions to omit such a clause. How does this correspond with other facts given in evidence? It is true that there was no person present at the time the instructions were given; so that the answer cannot be directly contradicted. But a witness swears that a few days after the marriage the defendant told him that he had got the property settled on his children and others, so that Susan or her husband could not sell it; that a woman was a weak vessel, and could not be trusted; that she signed against her will, but that after hard work he got things done pretty much as he wished. It appears from other depositions that this controversy was discussed in the religious society to which the parties belonged. Their minister and some of their brethren testify that the defendant did expressly admit, in the society, that Miss Kornegay gave the instructions stated by Scott to Mr. Stanly, but that he, the defendant, knew she decided so merely in favor of her lover and against her own interest; that he was her friend, and felt bound to protect her, and therefore had the settlement drawn in the shape it was, and would not relinquish it. These are subsequent declarations; and although they contradict the answer, point to point, we should not feel safe in decreeing on them alone. But Mr. Stanly, who drew the deed, says that when Scott and Duncan first applied to him, that both seemed wholly ignorant of the nature of the intended settlement. They did not then disagree as to her wishes, but were without information. He sent them back to consult the lady. They returned, and Scott represented that she wished the estate settled on herself so that she might dispose of them, notwithstanding her coverture; while Duncan insisted that she desired it to be on her husband and herself for their joint lives, and herself for life, if she survived, with a vested remainder to her relations. This produced an altercation, which induced Mr. Stanly to request that the lady herself might attend him, which they declined. Why was he not requested to visit her? Why was the lady debarred from an interview with counsel? Mr. Stanly then suggested different provisions, and made a memorandum of them, which Scott and Duncan assented to. He then drew the deed, and delivered it to Duncan, with instructions to have it read and explained to the lady. It is not clear, from this explicit statement of the intelligent gentleman who was consulted by these men, that the deed was framed either against the instructions of Miss Kornegay or without them? Can there be a material difference, in a case of this sort, which was the fact? But a circumstance occurred at the execution of the paper which leaves no doubt that the representation, in the answer, of her wishes is absolutely false. The defendant says that the lady wished not to have the power of disposition. Adhering to the letter of Mr. Stanly's instructions, and to that only, he did not request this or any other legal gentleman to give the explanation, but procured a neighbor, just before the marriage ceremony, to read it. Mr. Lente, who is one of the subscribing witnesses, was the person selected. Now, he and the other witness both say that when he began to read it, Miss Kornegay asked "whether she could still do as she pleased with her property?" Can there be the least hesitation, after this, that her instructions were for a power of revocation or disposition? But it is then a reliance that the deed was read over to her, and it is argued that a mistake of its legal operation could not be averred. It is clear that where the parties are perfectly aware of the actual contents of a deed, and each acting on his own judgment, or that of his counsel, omits to insert a clause, for fear it may affect the deed in law, they cannot be helped. But here the question is one of imposition and abuse of confidence. The very inquiry is whether she did, in fact, know and understand what was in the deed, and what not. It was read to her, it is true. But what a time to produce a complicated marriage settlement to an uninstructed female, dressed for her marriage| Was it read to her in the hope that she would or would not understand it? To whom could she apply for advice but the very person who had contrived the imposition on her? I wonder that she had not signed and sealed without a question. But even at that moment the strong desire of controlling one's own property showed itself, and prompted the question, "Can I still do as I please with my property?" The answer given by the witness was, "Yes, you can; but Mr. Scott cannot." This was all she wanted; and in confidence of that she was willing to execute the deed. It was read through; but can it be supposed that she heard it, or, hearing it, comprehended it? The man who was bound, in honor, conscience, and law to advise her was silent, and fostered the deception.
The evidence, then, out of the deed, goes beyond a naked confirmation of the inference from the deed itself of a mistake. It proves actual and deliberate imposition by the defendant. All his rights, therefore, and all the benefits resulting to the sisters and their children from this imposition must yield to the superior equity of this lady to have the settlement reformed.
But it is argued that the Court cannot reform this settlement without inserting a clause which will render the whole deed nugatory, as it will place the wife in the husband's power. This bill is called the husband's bill, because the wife is sunk in him during the coverture, and her wishes cannot be known. The rights of husband and wife are not in conflict in this suit, or touching the matter of it. He derives no benefit under the settlement, and no decree can be had against him. The Court, indeed, would not set aside a settlement upon such a bill, and let the husband in to his legal rights. As to reforming it, the Court will take care to secure the interest of the wife so far as consistent with the true spirit of the intended provision which has been omitted. Here that was a power of disposition to the wife during coverture. That she is now entitled to. But as we cannot suppose that it was meant to be of such a general character as would leave her at the mercy of her husband, it must be so restricted as to protect her. If her real wishes had been laid before the conveyancer, he would certainly have declared a trust for her in fee of the lands, and in absolute property of the chattels, upon her becoming discovert; and, also, a power of revocation and of appointment by will, or a paper writing, properly attested by two credible witnesses, in the nature of a will, executed during the coverture, in case she died during the lifetime of her husband. This at once reserves to her a reasonable control over her own estates, and secures the free exercise of it, as far as it is now possible to be done, except by superadding the consent of the trustee. That would be done if the Court had a faithful one before it. But this trustee has already so far abused his relation to the plaintiff, and the confidence reposed in him, that no discretion can be allowed to him. The Court decrees, therefore, that the marriage settlement be reformed in the particulars mentioned, and that a conveyance be made to such trustees as the plaintiffs, with the approbation of the clerk, may select, to be executed by the plaintiffs and defendant and the trustee to be selected, in which trusts to that effect shall be declared; which deed shall refer to the deed in the pleadings mentioned, and to this decree, and be settled and approved by the clerk of this Court, and acknowledged before a judge of the Superior Court or of this Court; and that the defendant pay all the cost of this suit.
PER CURIAM. Decree accordingly.
"The Colonial and State Records of NC" pub. 1886 by William L. Saunders, Secretary of State, index by Stephen B. Weeks (from Evelyn Sigler from Memphis Public Library books 975.6 N86)
Volumes 1-10 are titled "The Colonial Records of North Carolina, 1662-1776" and volumes 11-26 are titled "The State Records of North Carolina, 1776-1790"
4-764: 1746, Council held at Newbern. Petition for warrant, James Duncan, 200 acres, Craven (County).
4-1050: 2 Oct. 1750, Council at Newbern, read following petitions for warrant for land: John Duncan, 200 acres, Craven.
Family Bibles which include Richard Cogdell and wife Lydia Duncan are posted on two webpages (from Tom Howland 6/2004)
The Badger Bible which was copied about 1900 by Col. John Whitford, includes Richard Cogdell who was born 8 July 1724, died 10 May 1787, married on 8 July 1752 to Lydia Duncan who was born 27 March 1730 in Massachusetts and died 2 April 1806. The Bible includes many descendants who lived in the area of Craven and Carteret Cos. NC. The transcription by Col. Whitford appears to be similar to a transcription of a Cogdell Bible of Miss Kate Broadfoot, included on pages 136-139 of "Genealogical Collections of the National Society Daughters of Founders and Patriots of America: Vol.12, 1953-1955" on FHL microfilm 165,997. A transcription of the Badger Bible is available on the following webpage: http://files.usgwarchives.org/nc/craven/bibles/badgerbib.txt
Another Cogdell Bible was copied by Elizabeth Moore at the home of Miss Margaret Broadfoot in 1965. This Bible has more information about descendants of Richard Cogdell and Lydia Duncan. A transcription of this Cogdell Bible is available on the following webpage: http://files.usgwarchives.org/nc/craven/bibles/cogdel03.txt
Carteret Co. NC Will (FHL film 18,409; also from Roy Hall)
B-119 to 123: Thomas Duncan of Town of Beaufort, Carteret Co. NC, 14 March 1878; to my son William B. Duncan lot #111 whereon I now reside and part of lot #35 adj., that is to say, the part of lot embraced within a line running 40 feet east on Front St. and then a line 132 feet north and parallel with the east line of #111, then 40 feet to the line, then with the line 132 feet to the northeast corner of lot #111, together with all the water front lots and lands west and south of Front St. and lot #111, that is to say, all waterfront land west of the eastern line of part lot #35 as devised ... and lying on the "Thoroughfare" side (MAD: quotes in orig will book), lying in Old Town, in Beaufort, also 1/3 part of all my steam mill lands and 1/3 of lot #43 contiguous to them, together with 1/3 of the steam mill & fixtures. To son Thomas L. Duncan 1/3 part of my steam mill lands and of lot #43 and 1/3 of the said steam mill and fixtures, also the western half of lot #10, the water lot #251 south of same, part lot #12 formerly known as Custom House lot and the part of water lot #253 south of it, and lot #18. To my son John A. Duncan 1/3 part of my steam mill lands of lot #43 contiguous & of the mill and fixtures & all that lot or part of lot with the dwelling house and improvements in Newburn, Craven Co., corner of Pollock & Hancock Streets known as lot #80 on the plan of that city. To my dau. Esther P. Manson, all that part of lot #33 and the dwelling house and improvements thereon, beg. at southwest corner of lot #32 and running west 57 feet, then north (on) a line parallel with the western line of lot #32, then with the lines and distances of the lot devised, east and south to the beg., being known as part lot O.T. in Beaufort. To my grandchildren Alexander C., Nannie F., Thomas D. & Julius Davis, children of Alexander C. Davis Sr. and my deceased dau. Elizabeth J. Davis, part of lots #35 and #34 O.T. in Beaufort, that is to say, beg. at the corner of part of #35 devised to my son William B. Duncan, running east 46 feet in the line of Front St., then north (on) a line perpendicular thereto 300 feet, then west a line parallel with Front St. to the back or eastern line of lot #108, then south to the northeast corner of lot #111 and southeast corner of lot #110, then 40 feet east a line parallel with Front St., then 132 feet south to Front St. and the southeast corner of the part lot devised to W.B. Duncan. To my dau. Emma J. wife of Alexander C. Davis, all that part of lots 33 and 34 O.T. in Beaufort beg. at the corner southwest on Front St., 57 feet from lot #32, and running 43 feet west on the street, then north, 330 feet, then east 43 feet parallel with Front St., then to the beg. 330 feet to the southwest corner of the part lot devised to my dau. Esther P. Manson, and all that part of water lots #231 and #232 that is embraced in the lines of her part lot as devised, projected south? and lying south of Front Street, that is ... (description not copied here). To my dau. Marietta wife of Benjamin L. Perry, all my estate in and to lot #29 and part lot #31 and to water front lots south of Front Street and south of said lot and part lot, and I direct my execs. to assign or be paid to my daughter the judgement on record in Carteret Superior Court in my favor and against Mrs. Elizabeth V. Perry, ... To my dau. Laura G., wife of James C. Davis, $1000. Residue, subject to payment of my debts, to my children and my grandchildren, the children of my decd. dau. Elizabeth J. Davis, as tenants in common, the grandchildren to take equally as a class (have one share together), and each child one share. Appoint my three sons William B. Duncan, Thomas L. Duncan and John A. Duncan my execs. without bond; my real or personal property may be sold. /s/ Thos. Duncan. Wit. C.R. Thomas, W.H. Hendrick. Proved Jan. 29, 1880 on oath of witnesses; "see book of Orders & Decrees page 92"; W.B. Duncan and John A. Duncan qualify as execs.
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