Fourth Generation Inclusive

Julius A. Howell et al. v. Henry Troutman, 53 NC 304 (1860).

This Rowan County case involved a contested will.  Jacob Troutman’s last will and testament contained the following bequests and devises:

“Item 3d. I will and bequeath to Ann Allmond two hundred and fifty dollars, provided the said Ann shall live with my wife, Polly, and assist her in health and in sickness; and if the said Ann shall faithfully perform her duty to my said wife during the life of my wife or widowhood, then at the death of my said wife, I will and bequeath to the said Ann, five dollars more.”

“Item 4. All the ballance of my estate and property of every kind and description, including my gold mine and every thing else, I will and bequeath to Lucy, the infant child of the said Ann Allmond, and if the said Lucy should die without lawful children or child, then it is my will, that all I have willed to the said Lucy, shall be divided between the children of my brothers, David Troutman, John Troutman, and my sister, Sarah Earnhart’s children.”

Troutman’s execution of the will was duly proven by the three subscribing witnesses, who also testified that in their opinion he was of sound mind when he signed it.

Jacob Troutman and his wife Polly had no children.  Ann Allmond lived in their house as a housekeeper from 1849 to 1858. (Troutman died in the fall of the latter year.)  A witness at trial testified that Ann Allmond was a white woman and her daughter Lucy, in his opinion, was a mulatto; that Lucy died at about age three; and that, both before and since Lucy’s death, Troutman told him that the child was his, and accounted for her color from a fright which Ann Allmond had received while pregnant.  The witness further testified that he had done a lot of business for Jacob Troutman; that Troutman sent Ann out of the room during the drafting of the will; that the witness urged Troutman to leave his brother Henry Troutman something, but he declined, saying that Henry would spend it in litigation. The witness also stated that Troutman had become displeased with Henry because of some lawsuit they had had.

Witness James Montgomery swore that he had no doubt that Lucy was a half-blood mulatto, based on her color; that he was a neighbor and had frequent opportunities to see the child; and that Troutman believed the child was his, said he knew she was, and that he intended to make a lady of her.

Dr. J. P. Cunningham testified that he was a practicing physician in the vicinity of Jacob Troutman’s residence; that on one occasion he was called upon by Troutman to visit Lucy; that when he arrived, he found her in his arms; that he called her “daddy’s baby”; and that the child was unquestionably a negro.

Dr. John R. Wilson, also a practicing physician, testified that Lucy was, in his opinion, a mulatto, and that Troutman had once remarked to him that he loved the child as much as if she were his own, and that Allmond had gone out and picked it up somewhere.

J. C. Barnhart swore that he was a justice of the peace in the county when Ann Allmond was pregnant,  and issued a warrant for her to make her swear to the father or give bond as prescribed by law; that she gave the bond and Jacob Troutman either became her surety or procured someone to do so, he did not remember which; and that Troutman was a man of sound mind, though very illiterate.

J. M. Long, Esq., the draftsman of the will, testified that, after Lucy’s death, Troutman asked him whether another will was necessary to dispose of the part he had left for the child; that he advised him that it was not, but that the property would go over to his relatives under the provisions of the existing will.

Henry Troutman’s counsel insisted that the jury should hear testimony that the will was procured by the false representations and undue influence of Ann Allmond.  However, the County Court charged the jury that there was no evidence of such influence as would invalidate the will and, if they believed the testimony, the decedent was of sound mind; also, that the will was properly attested and executed. Henry Troutman’s counsel excepted.

The Supreme Court’s decision: The fact that Troutman bequeathed a legacy to the mulatto child of his housekeeper, a white woman, which the mother had induced him to believe was his, is no evidence that his will was obtained by fraud and undue influence. “Supposing that he did believe the child was his, and that the mother of it told him so, there is not the slightest testimony to show that she ever even asked him to make a will in favor of her and the child, or that she knew, before the will was made, that he intended to make one, or, afterwards, that he had made it.” “The truth is, that the old man, being childless by his wife, took a strange fancy to the child of his housekeeper, and whether it were his or not, he had a father’s love for it, and our law imposes no prohibition upon a man to prevent him from bestowing his property upon the object of his affection. Affection or attachment, as Sir John Nichol said, ‘would be a very strong ground of support of a testamentary act.’”