John Den, Lessee of Polly Weatherhead, Plaintiff In Error v. John Baskerville, John White, John Parker, Peter Haynes, William Stewart, Nancy Stewart, Nelson Turner, Jacob Gallaspie, Peter Bryson, Benjamin Parrish, William Johnson, Reuben Brown, Thomas Saunders, Richard Winn, Thomas Stone, Beverly Head, David Chenault Weatherhead, John Weatherhead, George Brown Sharp, and Francis Rogan

• Decision Date: 01 December 1850
• Citation: 11 How. 329,13 L.Ed. 717,52 U.S. 329
• Parties: JOHN DEN, LESSEE OF POLLY WEATHERHEAD, PLAINTIFF IN ERROR, v. JOHN BASKERVILLE, JOHN WHITE, JOHN PARKER, PETER HAYNES, WILLIAM STEWART, NANCY STEWART, NELSON B. TURNER, JACOB GALLASPIE, PETER BRYSON, BENJAMIN PARRISH, WILLIAM JOHNSON, REUBEN D. BROWN, THOMAS SAUNDERS, RICHARD WINN, THOMAS STONE, BEVERLY HEAD, DAVID CHENAULT, W. W. WEATHERHEAD, JOHN WEATHERHEAD, GEORGE T. BROWN, B. F. SHARP, AND FRANCIS ROGAN
• Court: U.S. Supreme Court

52 U.S. 329

11 How. 329

13 L.Ed. 717

JOHN DEN, LESSEE OF POLLY WEATHERHEAD, PLAINTIFF IN ERROR, v. JOHN BASKERVILLE, JOHN WHITE, JOHN PARKER, PETER

HAYNES, WILLIAM STEWART, NANCY STEWART, NELSON B.

TURNER, JACOB GALLASPIE, PETER BRYSON, BENJAMIN

PARRISH, WILLIAM JOHNSON, REUBEN D. BROWN, THOMAS

SAUNDERS, RICHARD WINN, THOMAS STONE, BEVERLY HEAD,

DAVID CHENAULT, W. W. WEATHERHEAD, JOHN WEATHERHEAD,

GEORGE T. BROWN, B. F. SHARP, AND FRANCIS ROGAN.

December Term, 1850

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Middle District of Tennessee.

The whole evidence given upon the trial in the Circuit Court was incorporated into the bill of exceptions, which must be inserted in this statement, and the preliminary narrative must therefore be brief.

On the 20th of July, 1788, Anthony Bledsoe was killed by the Indians under circumstances which are minutely detailed in the evidence. The will which was executed by him, whilst in great bodily suffering and surrounded by an alarmed family, was as follows:——

'In the name of God, amen.

'Being near to death, I make my will as follows: I desire my lands at Kentucky to be sold, likewise my land on Holston, at the discretion of my executors; my children to be educated in the best manner my estate will permit; my estate to be equally divided amongst my children; to each of my daughters a small tract of land; my wife to keep possession of the four oldest negroes for the maintenance of the family; my lands and slaves to be equally divided among my children. I appoint my brother, Isaac Bledsoe, and Colonel Daniel Smith, executors, with my wife, Mary Bledsoe, executrix. At the decease of my wife, the four above negroes to be equally divided among my children

'ANTHONY BLEDSOE. [SEAL.]

'Signed, sealed, and delivered in the presence of us, this 20th of July, 1788.

'JAMES CLENDENING,

THOMAS MURRAY,

HUGH ROGAN.

'State of North Carolina.—Sumner County Court, October Term, 1788.

'The last will and testament of Anthony Bledsoe, deceased, was produced in open court, and proved by the oath of Thomas Murray and Hugh Rogan, subscribing witnesses thereto. Recorded and examined October 18, 1788.'

At this time Bledsoe had ten children, viz. five sons and five daughters. After his death a posthumous daughter was born. Polly, who afterwards married Weatherhead, and was the plaintiff in error, was the eighth child.

In 1793, the executor and executrix (and after the death of the executor, the executrix alone) conveyed to three of the daughters each a tract of land, by deeds of which the following is an example:——

'This indenture, made this 3d day of January, A. D. 1793, between Isaac Bledsoe and Mary Parker, executor and executrix of Anthony Bledsoe, deceased, of Sumner County, and territory of the United States, south of the river Ohio, of the one part, and David Shelby, of the county and territory aforesaid, of the other part, witnesseth: That they, said Isaac Bledsoe and Mary Parker, pursuant to the last will and testament of the said decedent, hath given and granted, aliened, enfeoffed, and confirmed, and by these presents doth give, grant, alien, enfeoff, and confirm, unto the said David Shelby, all that tract or parcel of land situate in the county aforesaid,' &c., &c., containing 320 acres of land more or less.

In 1796 the records of the District Court of Mero District, on the equity side thereof, were burned and destroyed. This court had jurisdiction of the partition and division of estates and other matters in equity in the county of Sumner, where the lands were situated, from the time of making the will until the destruction took place.

In 1799 Polly, being then a minor, married Weatherhead, and immediately thereafter took possession of the 320 acres which were assigned to her.

On the 5th of January, 1801, the residue of the land which remained after giving the daughters 320 acres each was divided amongst the sons, by commissioners appointed by an order of Sumner County Court.

On the 19th of August, 1818, Polly Weatherhead and her husband sold to her brother, Henry R. Bledsoe, the tract of land which had been assigned to her, and shortly afterwards removed to Mississippi.

In 1843 Mr. Weatherhead died.

In October, 1846, Polly Weatherhead brought an action of ejectment in the Circuit Court of the United States for the Middle District of Tennessee, against the persons named in the titling of this report, for the whole tract of 6,280 acres. The defendants appeared, confessed lease, entry, and ouster, and at March term, 1847, the cause came on for trial. Under the charge of the court, which is set out in the bill of exceptions, the jury found a verdict for the defendants.

The following is the bill of exceptions.

'POLLY WEATHERHEAD'S LESSEE v. WILLIAM BASKERVILLE AND OTHERS.

'This cause came on to be tried before the honorable John Catron and Morgan W. Brown, judges, and a jury; when, to maintain the issue on her part, the plaintiff introduced in evidence and read a grant to Anthony Bledsoe, for 6,280 acres of land, from the State of North Carolina, described as is stated in the declaration, and proved that she was one of the eleven children of Anthony Bledsoe, deceased, who died in 1788. She then offered to read a copy of the will of Anthony Bledsoe, from the records of the County Court of Sumner County, to the reading of which copy the defendants excepted, but the court admitted the copy as proper prim a facie evidence for plaintiff.

'And suggesting fraud and mistake in the drawing and obtaining the will, and irregularity in the executing or attestation thereof, and insisted that the original will should be produced in court, and the said original will was produced accordingly; a copy of which, with the probate thereon, is hereunto annexed, marked A, and made a part of this bill of exceptions.

'In admitting General Hall's evidence, he stated what Isaac Bledsoe and his wife had told him was the true will of Anthony Bledsoe. That is, in substance, that each of the testator's daughters shall have a small tract of land, and that on his (General Hall's) repeating the statements of Isaac Bledsoe and his wife to Rogan, he said that the statement made to General Hall was about what had occurred in substance. Rogan having proved the will in the Sumner County Court in 1788, as a subscribing witness thereto, the court held that the will, according to the State laws of North Carolina, was prim a facie established, and that a copy might be read by the plaintiff, and which was read accordingly. The court also held, that, to make Rogan's proof valid, it must be presumed by the court and jury that Rogan proved all the necessary facts to constitute a good will to pass lands, the same as if Rogan then had proved the same facts before the jury. But that evidence might be let in on the trial to contradict what Rogan was presumed to have proved in 1788, before the Sumner County Court, when the will was there recorded. It was proved that Rogan had been dead for many years, and that the other subscribing witnesses were also dead. The copy was offered and admitted, and General Hall's evidence in opposition to the validity of the will adjudged to be proper, and heard to the extent above stated, in the progress of the trial, and one day before the original will was produced, on a subpoena duces tecum, issued on the part of the defendants to the officer having the same in his custody.

The defendants, except the two Stuarts, were proved to have been in possession at the time of bringing this suit. To the reading of the original paper writing called the will, or so much thereof as contains the devise of the lands equally among his children, the defendants objected, and the plaintiff then proved the handwriting of Anthony Bledsoe and of the three subscribing witnesses, and that they were dead. It was also proved by the plaintiff that none of the sons of A. Bledsoe had taken possession of the Greenfield land until after the marriage of plaintiff.

'Mrs. Shelby's Evidence.

'It was proved by Mrs. Shelby, that her sister (the plaintiff) had always complained about not getting an equal share of all the lands of her father under the will, and that she returned from Alabama or Mississippi several times, and tried to have suit brought for it.

'Dr. Shelby's Evidence.

'It was proved by Dr. Shelby, that James Weatherhead had come into this country several times about this business, and claimed his wife's eleventh part of the land. There was no proof that this claim of wife or husband came to the knowledge of defendants, or those under whom they claim.

'Malone's Evidence.

'It was proved by William Malone, that, about fifteen years ago, a contract was made by the plaintiff, or her husband, with an attorney, to bring suit in this case, but being unable to give security for a fee of $600 then agreed upon, the suit was not brought and the thing failed; they came to this State several other times on this business, but could never get the suit commenced. It was also proved that James Weatherhead, the husband of the plaintiff, was an honest man, of good common sense, but deficient in energy and resolution. He was a 'good, easy man,' and died insolvent.

'Hall's Evidence.

'General William Hall was introduced by the plaintiff. He proved the boundaries of the grant, dated ___ day of _____, 1787; that he surveyed the land called for in the grant; the number of acres called for in the grant is 6,280, but it held out 250 acres more; that all the defendants were in the possession of the land called for in this grant at the commencement of this action, except the two Stuarts; that the plaintiff, Polly Weatherhead, was a daughter of Colonel Anthony Bledsoe; he thinks in the fall of the year 1799 she intermarried with James Weatherhead, she then being under the age of twenty-one years. Being cross-examined by defendants, states that he was well acquainted...