Source: Sumner County, TN Archives
Lawsuit # 4550
Microfilm-loose records (Not all the lawsuit is transcribed here.)
Names mentioned: GARRETT, DORRIS, ROSCOE, CUNNINGHAM, BRIGGANCE, MCCOIN, LATTIMORE, BELL, MOORE
Mary M. GARRETT & Husband et al
vs. A and Cross Bill
George M. GARRETT et al
Depositions of James Roscoe, Robt Cunningham, A.G. Briggance, Eli McCoin, Oliver J. Lattimore, Capt. Erasmus Bell & Joseph Moore, Jas. W. Garrett taken by consent in the presence of counsel for both parties, at my office in Gallatin on the 9th day of September 1870.
Robert CUNNINGHAM being duly sworn states as follows:
I married a daughter of Timothy GARRETT, dec. I knew him about 26 years. Soon after I married he gave my wife a horse and saddle and afterward a negro girl with about $350. He had five daughters and he gave them all about the same amt of property. He helped some of his sons. He had seven sons. If he ever gave William anything but a horse I do not know of it.
Question: Did you ever hear the old man speak of giving him anything else and what he said on
the subject? Question objected to.
Answer: I heard Mr. GARRETT say that he had never given William anything and he wanted to
give him $300 out of the proceeds of his land after his debts were paid, to make him equal with
his other children as he had given the most of them something except William.
The old man made a deed of trust. I was the Trustee. All
the old man's creditors were included in the deed of trust and those creditors of Timothy W. his
son for which the old man was security.
I cannot say excactly how much he was liable for as security
for Timothy W. I think I paid between $700 & $8,000 (sic) as trustee for security debts for
Timothy W. The County Court books will show the amount. This was paid out of the proceeds
realized by me under the deed of trust.
The old man also paid a debt of Timothy W.'s to O. J.
LATTIMORE of about $120. The old man assisted him in various ways while he T.W. was
keeping house; in making crops, etc. Upon some occasions he would render his other sons
assistance such as hog killing, etc.
Question: When you wound up the deed of trust was there any property left the old man and if
so, of what did it consist? Question excepted to.
Answer: There was 30 acres of land which the old man agreed to take back. It was sold under
the deed of trust with the other property. He took it back at about $25 per acre I think. I paid
him $200 in money and there was a note of $300 which I returned to him.
Question: After the 30 acres of land were taken back by the old man did you have any
conversation with him relating to any indebtedness to his son William and if so what did he
say?
Question excepted to.
Answer: I did. the old man stated that he wanted to give William $300, that he had never done
anything for him. He told me that he had not the money then but would probably get it and
intended (to give Wm the money and a note for the amount-crossed out) that Wm should have
that amount.
I suggested to him the propriety of his giving Wm his note
for the amount and he did execute a note to Wm for that amount which I saw him execute. The
note was was executed I think before the deed of gift was made to T. W. GARRETT's wife.
line separating testimony
I was well acquainted with the old man GARRETT and had
frequent conversations with him relating to his affairs and on different subjects.
He was not far from 80 years of age when he executed the
deed of gift to the wife of T. W. GARRETT.
Question: Do you or not think the old man had mind and memory sufficient to write a deed or
make a will on the 1st (?) day of December 1868? or to do any binding act in law?
Question objected to.
(Written in margin) Question with objection. Answer permitted & afterward question asked
Answer: The old man had become very forgetful. When his health began to decline his mind
became weak and he would often repeat to me in the course of half an hour what he had
previously been telling me. When I first knew him he was an interesting man to converse
with.
He was at my house a good deal of his time the latter part of
his life & I went over to see him occasionally.
Frequently he would tell me what he was going to do and in
a day or two would act contrary to what he had said. Do not know whether it was the result of
forgetfulness or not.
Question: Please state if you think or not the old man on the 1st (?) Dec. 1868 had mind and
memory sufficient take (sic) into his mind the whole of his estate and the claims of his children
upon his bounty and make a disposition of his estate either by will or deed.
Question Objected to
Answer: It is my opinion he had not.
After he had made the deeds of gift, about two or three days
after, I saw him and he asked me if he could not go to Gallatin and undo what he had done. I told
him as the deed had been made a matter of record I did not think he could do it. He was very
much dissatisfied with it and was uneasy and distressed about it.
Previous to making the deed of gift he wanted to know if I
would not become his guardian. This was one or two days before the deed of gift was made. He
stated that Wm had agreed to be his guardian but afterwards declined and as he wanted a guardian
he wished me to act as such. I advised him not to make any disposition of his property during his
life, as he had got old he had better not make himself dependent on any one. the old man then
told me that that was just what he was going to do. i.e. not to make any disposition of his
property. I think this conversation took place the day before he made the deed of gift.
I think that T.W. GARRETT received twice or three times as
much as any other of his children.
Objected to.
In above estimate I do not include the land conveyed in deed
of gift. The land conveyed in deed of gift was worth in cash at the time $25 per acre.
I think the old man was at T.W.GARRETT's at the time the
deed of gift was made. He had previously been at my house a week or two & went from there to
T.W. GARRETT's and I think he made the deed in a day or two afterward.
T.W. GARRETT had then been married to the lady to whom
the deed of gift was made perhaps 8 or 9 months.
A day or two before making the deed of gift the old man
asked me if he had given his son William a note of Three Hundred dollars. I told him he had. He
asked me what he gave it to William for. I told him I supposed it was because he wanted
to.
When the old man left my house to go to T.W.GARRETT's
he was alone & went alone.
I think the old man was childish and easily controlled by
other persons.
I was well acquainted with him & all his children that lived
around him.
Question: Of all the persons you knew, who in your opinion, had the most influence and control over him at that time? Objected to.
Answer: My opinion is that T.W.GARRETT had more influence over him than any other person
and had had for two or three years previous to the deed of gift being made.
I think the old man had love & affection for his son Wm and
respected him as much as any of his sons. William had been a good and dutiful son to him.
Defendant in Cross Bill excepts (?) to all that part of the foregoing testimony which has reference to the advancements made by old man GARRETT to his children as having nothing to do with questions raised by the (?) in the Ansr (?).
Cross Examination
All the beneficiaries under the deed of trust were paid in full, except perhaps some small claims which were not presented.
The old man told me he intend to give Wm $300 out of his
remaining estate after paying his debts named in the deed of trust.
After the debts were paid under the deed of trust (and after
paying doctors (?) bills and funeral expenses-crossed out) there would have been enough
remaining to pay the $300 to Wm leaving out all other debts. The note referred to dated Nov 28
1868 for Three Hundred dollars and named in the cross bill as having been given to Wm
GARRETT is the one spoken of in my direct examination.
For many years previous to his death the old man was most
at T.W.GARRETT's. That was his home-when he was elsewhere he was on a visit. I do not
know whether T.W. GARRETT treated him well or not.
I have heard the old man complain heavily of
T.W.GARRETT. He complained that he was left with the little children, being himself old and
helpless. Still, he remained there. Sometimes he would come and want me to bring a waggon and
move him away. Still he remained there. He would go away and stay awhile & then go back. On
one occasion he wanted me to move him to my house and I gold him I would do so tomorrow.
He then replied, "Well, wait awhile."
The year of his death he lived with Timothy W. GARRETT's
(sic) on land belonging to T.W. GARRETT's sister, which the old man had given her about the
time he made the deed of trust.
I never heard that T.W.GARRETT charged the old man any
board nor have I any idea that he did.
The old man had as much mind and memory as some old men
have but as not as much as many others. It seemed that his mind gave away with his body. He
was about as competent to made a deed of gift on the 1st day of December as he was to make the
note on the 24th of November 1868.
I do not remember that the old man ever told me that his son
Wm had told him that he ought to have a guardian.
The deed of trust was made about 5 or 6 years before the
deed of gift was made. I think the old man's mind was not as good after his wife's death as most
other men at his age. He continued to transact his own business up to his death. He had some
personal property after the deed of trust was closed. He disposed of such stock afterward as he
had.
When he spoke about going to Gallatin to undo his deed of
gift he talked rationally. He knew his neighbors and children.
In settling up the deed of trust I consulted with him.
In consulting with him there were some things in which he
acted rather singularly. After selling the land under the deed of trust he signed the deed. He
signed it after he made the deed of gift. When I told him what it was for he seemed to understand
that he was signing the deed conveying to Capt. Bell the 50 acres of land sold under the deed of
trust.
50 acres of the land was sold to Mr. DORRIS of which no
deed was made. When I told him not to sign the deed to DORRIS because DORRIS had not paid
for the land, the old man objected to doing so.
Question: If you believed the old man GARRETT incompetent in November 1868 to make a note why did you advise him to execute the $300 to his son Wm GARRETT
Answer: I did not know how he could get to give Wm that amount unless he did it that way. He manifested a disposition to give him the money and I though as he had no money that was the best way for him to fix it up.
When I was closing up the deed of trust the old man wanted
me to reserve 30 acres of the land.
I told him the probability was that if the 30 acres was
reserved where he wanted it, it would spoil the sale of the land.
Re-Examination
Previous to the time of making the deed of gift to his
daughter Martha the old man did not live with T. W. GARRETT .
When T.W.GARRETT rented the land of Martha the old
man went his security (sic) and the estate of the old man had the amount to pay.
The T. W. GARRETT was insolvent and (crossed out?) he
might have been un(crossed out)able to rent a place, but it was on the faith of his father that that
place was rented.
Re-Cross-Examination
Martha told me that the old man paid the rent.
(signed) Robert CUNNINGHAM
A G BRIGGANCE being duly sworn states as follows:
Was acquainted with old man GARRETT & lived about 4
miles from him. Was present when the note of $300 was executed to Wm GARRETT. I wrote
the note at the request of old Mr. GARRETT. He told me he wanted to give his son Wm $300 as
he had never given him anything.
The paper herewith filed and marked exhibit A is in my
handwriting. Old Mr. GARRETT signed his name to it. He stated to me about what is in that
paper. When he asked me to get up the paper he conveyed the idea to me that his mind had given
away and he wanted to get rid of his business. I did not deliver the paper to the County Court.
The old man was at Rob CUNNINGHAM's house when the paper was written & signed.
Objection: The paper is objected to & any statements made in reference thereto by Counsel for defendts.
I had known him for about 40 years. When the paper
"Exhibit A" was signed he was forgetful and I think his mind was frail and weak.
When I first knew him I think he had a very good mind.
Do you think old man GARRETT on the 1st of Dec 1868 had mind and memory sufficient to take a survey of his estate and the claims of all those who had a
end of page 2251
DEED
I, Timothy GARRETT, for the love and affection which I entertain for Mary M. GARRETT, wife
of my son Timothy W. GARRETT & her children by my said son and the children of the said T.
W. GARRETT by a former wife and the further consideration of one dollar to me paid, have this
day given and granted, and do hereby give and grant to the said Mary M. GARRETT for life, with
remainder over in favor of all her children by my said son, Timothy W. GARRETT, his children
by a former wife, share and share alike, the following tract or parcel of land, situated in the
County of Sumner, State of Tennessee, District No.11; the first of which tract is bounded as
follows, viz, Beginning at a stake in Neal's line; thence west with the lane forty eight poles to a
stake at a small stream, running through the land (bend?); thence north eighty six poles to the
branch; thence south 56( East fifty eight poles to a white oak; thence south forty seven poles to
the beginning containing by survey twenty acres. The other tract bounded as follows, viz,
beginning at a stake twenty poles north of a large poplar; thence north forty one poles to a black
oak; thence west thirty four and a half poles to a stake on DOUGLAS' line; thence south forty one
poles to a stake; thence East thirty thirty four (sic) and a half poles to the beginning; containing
ten acres, to the said Mary M. GARRETT and her said children by the said Timothy W.
GARRETT and his children by a former wife with this distinct understanding and reservation
however, that I am to hold, use, and occupy the said tracts or parcels of land during my life, when
the possession is go (sic) to and vest in the said Mary M. GARRETT upon the terms and
limitations above specified. I will warrant and defend the letter of said law against all claims made
by, through, or under me but not further or otherwise. This 1st day of December 1868.
(signed) Timothy GARRETT (sure?)
? before
Signed
Test.
Andrew TAYLOR
Jas. F. ROSCOE
(Stamped below with names written in)
Personally appeared before me, Lee H. ALLEY, Clerk of the County Court for said county,
Andrew TAYLOR, Jas. F. ROSCOE, subscribing witness to the foregoing deed, who, being first
sworn, deposed and said that they are acquainted with Timothy GARRETT, Sen (senior?), the
bargainer, and that he acknowledged the same in their presence to be his act and deed, for the
purposes therein contained.
Witness: my hand, at office, this the 2nd day of December, 1868.
Lee H. Alley, Clerk
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