Character witness. Law imitates life

• Author: Terrence Franklin
• Pages: 14-15

ABA JOURNAL | SEPTEMBER–OCTOBER 2019

14

Inter Alia | CHARACTER WITNESS

CHARACTER WITNESS

Law

Imitates

Life

A trusts and estates lawyer

unearths his family’s past

BY TERRENCE FRANKLIN

Character Witness explores legal and

societal issues through the  rst-person

lens of attorneys in the trenches who

are, inter alia, on a mission to defend

liberty and pursue justice.

The story of my family’s eman-

cipation from slavery nearly

two decades before the end of

the Civil War has shaped my

life’s mission and career as a trusts and

estates litigator.

I’d been practicing law for nearly

a quarter century when I came across

a will contest that pitted two brothers

against each other, ultimately freed

my fourth great-grandmother and set

me on a path to pursue justice. My

journey of discovery likely would never

have happened if I had not become a

lawyer—and speci cally, a trusts and

estates litigator.

A reunion for the

history books

In February 2014, my great aunt Viola,

who was like a mother to her nieces and

nephews, was turning 100. Preparing

for a minireunion and surprise birthday

celebration for Aunt Viola, I tried to

think of how to honor her. Back in 2001,

I attended our

family reunion and

saw among the re-

union materials a

page of text typed

in a cursive font.

The text was an

excerpt from John Sutton’s will that had

been  led in southern Illinois in Decem-

ber 1846. Sutton was a white farmer in

Florida and my fourth great-grandfather.

He owned my fourth great-grandmother,

whom John described in his last will

and testament as his “mulatto slave

Lucy, aged about 45.” The will went on

to state that John also owned Lucy’s

eight children and six grandchildren, all

listed by name and age. The will called

for Lucy and all the children to be freed

and removed to a free state, their exodus

 nanced by the sale of all other property.

According to the excerpt , William

Adams had performe d his duty as exec-

utor, delivering Lucy and her fam ily to

Illinois, where Ad ams proclaimed t hem

“free to enjoy their full a nd perfect

freedom.” The excerpt also ind icated

that copies of the will h ad been record-

ed in Florida, where John had m ade his

“X” on the will, and a lso in Georgia ,

where the family had lived be fore mov-

ing to Jacksonville.

When I had  rst returned to Los An-

geles from the 2001 reunion, I had sent

$2 to a clerk in Jacksonville for a copy

of the will. The copy never came, and I

forgot all about it.

In 2014, I thought about the will

again, and my background in trust and

estates proved invaluable. In 2001,

I became the  rst African American

fellow in the American College of Trust

and Estate Counsel, an invitation-only

association that promotes the develop-

ment of trust and estate law. The week

before Aunt Viola’s birthday celebra-

tion, I called two Jacksonville lawyers

in the ACTEC directory, leaving each a

message that I was trying to locate a will

from 1846.

The  rst resp onse was from a lawyer

who told me the Great Fire of 1901 in

Jacksonville had destroyed mos t court

records. The second was from a pa ralegal

who was intrigued by my quest. She a greed

that the Great Fire had des troyed most re-

cords but said: “Let me see what I c an do.”

That Friday morning, I found an email

from the paralegal that said, “We found

it! It’s the right will.”

Elated, I asked her to send me a photo.

Instantly, I received an image of a broken

red wax seal on an old yellowed page with

faded ink, written by a lawyer and marked

by John Sutton with his “X.” John did not

identify any other wife or children, and

I surmised that Lucy and John had lived

as man and wife, and that Lucy’s children

were John’s children.

The mystery deepens,

the journey begins

After discovering the will, I wrote an ar-

ticle for Probate and Property magazine

wondering if there was love in John and

Lucy’s relationship. A professor who read

the article emailed me about a book she’d

written called Fathers of Conscience:

Mixed-Race Inheritance in the Antebel-

lum South.

She followed legal cases where wh ite

men left gift s of emancipation to African

American ensl aved people. Often, white

relatives of those men would challen ge the

wills. Somet imes, the trial courts would

uphold the wills. Other t imes, some courts

of appeal acknowledged that the te stator

had intended to emancipate but held that

public policy prohibited emanc ipation of

African Amer icans.

After learning of such will contests,

I felt encouraged to keep digging—that

there was more to the story. I also began

to outline a novel.

Though I had no reason to suspect

that anyone had contested John’s will, I

included a contest in the outline for my

novel. I “invented” a brother for John,

whom I called “Eustice.” I titled the book

The Last Will of Lucy Sutton.

When I discovered that ACTEC

would have its annual meeting in Florida,

Terrence Franklin

discovered

documents that

revealed his

family’s history.

Photos courtesy of Sacks Glazier Franklin & Lodise and Terrence Franklin