Old Man Not Outfoxed by Children
In the 1820s Joel Cannon lived and farmed in Caswell County, North Carolina. While not an extremely wealthy man, he was of some means and owned five slaves. In 1829 by written deed he conveyed to trustees (Elijah Cannon and James Cannon) for the "sole and separate" use of his daughter Annie Cannon Powell a female slave named Peggy and her two slave children, John and Milly. Annie was to be the beneficiary of the trust during her life, with the remainder going to her children upon her death. Annie had married Thomas B. Powell in 1820.
At some point the trustees named in the deed left North Carolina, and in 1848 Dr. Allen Gunn was by order of the Caswell County Court of Equity appointed trustee. In that capacity for many years he received the proceeds from hiring out the slaves, with only a small portion ever paid to Annie Cannon Powell. By the mid-1850s this amount had grown to around $1500.
Annie died in 1855 without a will, and Samuel M. Cobb became administrator of her estate. He was a son-in-law of Annie, having married her daughter Matilda J. Powell.
In his role as administrator, Samuel M. Cobb (with the other sons-in-law of Annie Cannon Powell) sought legal advice with respect to their rights to the accrued funds in the hands of trustee Dr. Allen Gunn. Counsel advised that the "profits and hires" of the slaves that had been held in trust for the benefit of Annie Cannon Powell during her lifetime now went, not to the husband of Annie Cannon Powell, but to the administrator of her estate for the benefit of her children. The lawyer advised, just to be cautious and to make it easier to proceed against the trustee, to have Samuel M. Cobb formally waive his rights. To accomplish this following document was drafted:
"Whereas, Joel Cannon, late of Caswell county, conveyed by a deed of settlement, on 29th day of December, 1829, to Elijah Cannon and James Cannon, trustees, a negro woman by the name of Peggy, and her children, Milly and John, to hold to the exclusive and sole use of Annie Powell during her life-time, and after her death said slaves, with their increase, to be divided between her children; and whereas, Elijah Cannon and James Cannon left the State of North Carolina, and settled in some distant State, whereby it became necessary to appoint other trustee or trustees, and Doctor Allen Gunn having been appointed, who has had control of said slaves for many years, and the said Annie having died in the month of July last, and being willing to carry out to the full extent the wishes of my late father-in-law, Joel Cannon, in his provision for his daughter and her children: Now, therefore, this indenture witnesseth, that for and in consideration of one dollar to me in hand paid, . . . I have bargained and sold, delivered, transferred, made over and assigned, and by these presents do bargain, sell, deliver, transfer, make over and assign, to Samuel Cobb and his wife Matilda, Jeremiah Rice and his wife Mary Anne, Andrew J. Cobb and his wife Jemima, and Josiah Powell, all the right, title and interest which I have, or may have, in the slaves Peggy, Milly and John."
Then follows a conveyance of the "profits, hires or issues of the said slaves, which accrued in the life-time of his wife."
The deed was drafted by the lawyer at the courthouse in Yanceyville, and then taken some ten miles distant to the residence of the subscribing witness Haralson. There it was presented to Thomas B. Powell for his signature. The document was not read to him, and it being dark Powell was not able to read it. Thus, he signed the document without reading it or having it read to him.
Thomas B. Powell brought suit against Samuel M. Cobb and others alleging:
1. Samuel M. Cobb told Thomas B. Powell that the children had agreed that if Powell would sign the deed they would convey the slave Peggy to him for his life. However, no such agreement was made and the children refused to convey Peggy.
2. That he, Thomas B. Powell, was ignorant of his rights, relied upon the advice given to the sons-in-law by the lawyer in Yanceyville, did not believe he had any rights to the "profits and hires" of the slaves held in trust for his wife, and believed signing the deed would help his children and sons-in-law in their suit against the trustee.
However, because the slave Peggy was not transferred to him as promised, Thomas B. Powell obtained advice with respect to his rights and believed he was entitled to the $1500 held by trustee Dr. Allen Gunn that had accrued during the lifetime of Annie Cannon Powell.
Plaintiff Thomas B. Powell claimed his signature to the document waiving his rights was improperly obtained and that, notwithstanding the document, trustee Dr. Allen Gunn should account for and pay the funds held in trust to him, plaintiff Thomas B. Powell. Dr. Allen Gunn was made a party defendant, along with Samuel M. Cobb and wife Matilda, Jeremiah Rice and wife Mary Anne, Andrew J. Cobb and wife Jemima, and Josiah Powell.
In their answer the defendants argued that the deed from Joel Cannon was clear in that it intended to benefit his daughter and after her death her children. Annie's husband Thomas B. Powell given any rights under the trust. They also relied upon the document Thomas B. Powell signed giving up his rights.
The matter was submitted to the North Carolina Supreme Court, which had little difficulty ruling in favor of plaintiff Thomas B. Powell.
Justice Pearson, speaking for the entire court, awarded to Thomas B. Powell the $1500 or so held by trustee Dr. Allen Gunn. The document Thomas B. Powell signed waiving his right to the funds that accrued in the trust during the life of his wife Annie Cannon Powell had no legal effect:
"We are satisfied that it was obtained under such circumstances as make it against conscience for the defendants to set it up or seek to claim any benefit under it."
The court saw the case as follows:
"An ignorant old man is entitled to a fund of some $1500, the accrued profits of slaves while they were held by a trustee for the separate use of his wife. His children and sons-in-law are entitled to the slaves. One of the sons-in-law administers upon the estate of the wife. Counsel is consulted by the latter in regard to their rights and the proper mode of proceeding in order to get the fund out of the hands of the trustee. They are advised that they are not only entitled to the slaves, but to the accrued profits, the counsel falling into error by this fallacious reasoning which is set out in the answer: 'The plaintiff cannot, surely, have a greater interest in the profits of the slaves after the death of his wife, than he had during the coverture, and by the terms of the deed the property is to be held to her exclusive use.'
"So, it is concluded that the old man had no right to the profits; but the counsel advised, 'out of abundant caution, the plaintiff had better release his interest, if any, in the hire and profits,' so as to relieve the children of all difficulty in bringing the trustee to account. Accordingly, the counsel draws up a formal deed, reciting the deed of settlement, the substitution of the defendant Gunn in the place of the original trustees, and that the plaintiff, 'being willing to carry out, to the full extent, the will of his late father-in-law, Joel Cannon, in its provision for his daughter and her children, in consideration thereof, and in further consideration of one dollar, doth bargain and sell, transfer, make over, and assign' to his children and sons-in-law, all the slaves and their increase, and also doth 'hereby make over and assign all right, title and interest, which I have as husband, or may have as administrator of my wife, to the profits and hires of said slaves accrued in her life-time, c.'
"This deed is handed to the defendant Cobb, who procures the old man to execute it; neither the old man, nor Cobb, nor the subscribing witness, being able to read it; but Cobb tells him that it gives up all right or claim to the slaves and their profits, and informs him what lawyer drew it; the old man remarks, 'I do not believe he would do any thing to injure me,' and thereupon he executes it.
"So, it is manifest that it was executed by the plaintiff in ignorance of his rights; which ignorance was induced by an error of the counsel employed by the defendants, in whom the plaintiff had entire confidence, not only as a lawyer, but as a man; and it is also manifest that it was executed by the plaintiff for the purpose of enabling his children and sons-in-law to prosecute successfully what he supposed were their rights against the trustee, who held the property and the accrued profits. A simple statement of the circumstances, under which the execution of the deed was procured, is enough to show that it is against conscience for the children and sons-in-law to turn upon the old man and use this deed, not for the purpose for which he executed it, but for the purpose of depriving him of what justly belongs to him."
Powell v. Cobb, North Carolina Supreme Court, 56 N.C. 456 (1857).