To the Worshipful Justices of the Orphans' Court of Prince George's County: Richard Berry, heir at law [and brother] to William Berry, late of said County dec'd; Benjamin Berry, Zachariah Berry, Elisha Berry, brothers to the said William; Thomas Owen Williams and Mary his wife, which Mary is sister to the said William Berry; and Mary Berry, mother of the said William Berry, humbly show that the paper now exhibited in this Court dated the twenty-third [sic] day of June in the year seventeen hundred and eighty-four as the will of the said William Berry ought not to be received and taken as the testament of the said William Berry for that the said William Berry at the time when the said paper is alleged to have been by him signed was not of sound and disposing mind and memory; that the said William Berry was, at the time when the said paper is said to have been signed, in a state of inebriation so as to be deprived of his usual and common understanding and recollection; that the said William Berry about a year before the said paper is said to have been signed, when he was perfectly in his senses and had his full recollection and understanding, made and regularly executed a last will and testament whereby he disposed of his estate, real and personal, among his brothers and sister, your petitioners, except five hundred acres of back land and fifty pounds sterling left to William, an illegitimate son of a certain Ann Warman, who is in the said paper said to be baptized by the name of "William Berry," and appointed Thomas Owen Williams and Zachariah executors, which said testament, so regularly executed, your libellants always understood was by the said William Berry intended to be his last will and testament; that the said testament so regularly executed has been taken from the said William Berry's house, and what has been done with it your petitioners are not informed, but the same was never cancelled by the said William Berry; that your libellants know not by what means the said paper now exhibited was procured to be signed, if signed at all by the said William Berry. Your libellants further show that to their knowledge there was no cause or reason which could have operated with the said William Berry, if he had been in his usual senses, to have altered the will so, as aforesaid, about a year ago regularly executed, as he & your libellants always lived in perfect friendship and affection; that the said paper now exhibited was not executed by the said William Berry according to law; and that the said William Berry, at the time when the said paper is said to have been signed and long before, was by a course of drinking strong liquor and bodily and mental infirmities in consequence thereof in a state unfit to dispose of his estate by a testament or last will. For these causes, or some of them, your libellants object to the said paper aforesaid being taken and received here as the last will and testament of the said William Berry, and pray that the Court here will enquire into the same, and that if upon inquiry and examination the Court here should be satisfied that the said paper should not be taken and received as the last will and testament of the said William for the causes aforesaid or any other causes or reasons which may appear in the course of the inquiry , that the said paper may not be received, adjudged, or taken by the Court as the last will and testament of the said William Berry, and that letters testamentary be granted to the said Thomas Owen Williams and Zachariah Berry, executors of the said testament named, or that letters of administration be granted on the estate of the said William Berry to his next of kin or legal representatives, the said William having died about the first day of July in the year 1784 without any lawful issue, the said William Berry never having been married, and that your petitioner Richard Berry is his heir at law, & the said Richard Berry and your other libellants are his only legal representatives.
T. Stone for Libellants
The deposition of John Steuart, Doctor of Physick, aged 35 years or thereabouts, who, being sworn on the Holy Evangel of Almighty God, deposeth and saith, to wit:
On the second day of June last Deponent visited Mr. William Berry, deceased, in his last sickness and found him in bed. He held out his hand and said he was glad to see him but was afraid it was all over with him but hoped this Deponent would do his best to save him once more. He (this Deponent) told him he supposed his complaint proceeded from the old cause, the bottle. The Deceased said he believed it might in some measure but that people judged too hardly of him in that respect. The Deponent said it was useless to conceal it from him, for that he knew he did drink hard, but it did not matter now, for he came to do him what service he could.
The Deponent sat down by him and took hold of his arm and asked him what was his present complaint. He answered he had a violent reaching to vomit for some time, that nothing would stay on his stomach, that he felt himself much exhausted and very unhappy. The Deponent said the Deceased had a cold sweat upon him, a low pulse, and there appeared to be a general languor and debility in his system. The Deponent asked him if strong grog would not stay on his stomach. The Deceased answered he did not believe it would. The Deponent called for some and in about one half gill of it mixed two teaspoonsful of volatile drops and desired him to swallow it, which he did.
Some time afterward he told the Deponent he felt himself much relieved. Mr. Archibald Boyd, who was in the room all the time, said he thought that as the drops had done Mr. Berry so much good they might be of service to him likewise, for he found himself pretty much in the same situation Mr. Berry had described. The Deponent told Mr. Boyd that he knew his own feelings best--there were the drops. Mr. Boyd then took three teaspoonsful mixed in the same way.
Some little time afterward Mr. Berry called the Deponent to him and told him he felt so exceedingly relieved by the drops that he begged for God's sake the Deponent would put them away in some secure place, for that damned creature Boyd would swallow them all. Some time afterward the Deceased has his clothes brought, which he put on, and came out into the other room, joined the conversation, and appeared to be as cheerful and conversible as any present. He told Mr. John Frederick Augustus Briggs and the Deponent that he had some good cheese and asked if they would eat some. The cheese and biscuit were produced. The Deceased gave order to have some toddy made, which was passed around.
Sometime afterward the Deponent made a motion to leave. Mr. Berry begged he would stay a little longer, for he had some business for him to do. He then produced an instrument of writing which the Deponent believes to be the writing now exhibited as the will of William Berry. He jokingly observed to Mr. Berry (before he knew its contents) he did not suppose it to be his will as he believed there was no danger of him that bout. Mr. Berry observed it might be so but that it was always best to be prepared, and he wanted the Deponent to witness it. Mr. Berry sat down to his desk and signed and sealed the will in the presence of Mr. Archibald Boyd, Mr. J. F. A. Briggs, and the Deponent. After which Mr. Boyd took up the will and desired Mr. Berry to say that he published and declared it as his last will and testament and that he delivered it for the purposes therein mentioned. Mr. Briggs observed upon this that that was not the usual form in which he had seen wills executed but that the following was the form: that he published and declared it to be his last will and testament and desired the witnesses to witness the same. Upon which Mr. Berry took the will up and repeated the words made use of by Mr. Briggs; that is to say, I acknowledge this to be my hand and seal and publish and declare this to be my last will and testament, or words to that effect, and call upon you to witness the same, and immediately afterwards requested the Deponent to subscribe it as a witness, which he did, and Mr. Boyd, Mr. Briggs, and Mr. Thomas Marshall then also subscribed it in the presence of the Deponent and the Deceased.
Being questioned, the Deponent says he has been acquainted with the late Wm Berry, deceased, about fourteen years and has attended him as a physician for eight or nine years or thereabouts. The said Wm Berry lived five or six miles from Bladensburg, the place of residence of this deponent. He was in company with Mr. Berry at the time of his making the said last will about two or three hours. The idea of Mr. Berry being out of his senses never entered the Deponent's mind. From his whole behavior and conversation he appeared to be a reasonable man and to have his senses. He had been two or three times with William Berry when he had been reduced by the effects of liquor to the same situation he was in when he last saw him. He believed Mr. Berry's languor and debility in his last illness to be the effect of drink. He had before known Mr. Berry after a course of intoxication to recover as perfect a state of health as ever. He never visited Mr. Berry after the time before mentioned. Yes, Mr. Berry had sent for him as a physician at times when he had not been drinking but not within a twelvemonth before his death but within a much less time then two years. He thinks Thomas Owen Williams, brother-in-law to the Deceased, was the only person present those already named.
If Mr. Berry drank anything besides the grog and volatile drops before the will was executed, it was of the toddy as it went round, but he is not certain, and if he did drink, he drank sparingly, and the toddy was not strong, and he believes he was as capable of doing business as he ever was in his life. There was a small bowl or tumbler full of toddy drank, but whether it was filled a second time, he does not recollect. Mr. Briggs had some liquor mixed for himself, and this Deponent believes, drank none of the toddy. He thinks Mr. Berry was sober at the time of executing the will. Yes, he believes Mr. Berry might not wish the world to know he drank as hard as he did. Yes, he had seen Mr. Berry when he was perfectly sober and free from the effects of alcohol, and when he had congratulated him on his appearance and asked him if had left off drinking, he announced that upon his honor he had.
Being questioned further, the Deponent answered that he had advised Mr. Berry, in order to break off his habit of drinking, to live with some one of his brothers. He told him that he could not think of such a thing, for they had used or treated him ill. The Deponent asked him in what respect, for that they had always appeared to the Deponent, when in company with them, to have behaved to him with brotherly affection. He told the Deponent that he did not know them, that he was convinced they had no regard for him, that they had often neglected him when he thought himself at the point of death, and tho' he had repeatedly sent for them, they had refused to come. The Deponent observed to Mr. William Berry that it could not have proceeded from want of affection but that it might be disagreeable to them to see him in his drunken fits, and that altho' they might have animadverted, perhaps with too much severity, upon his conduct, so as to have hurt his feelings at the time, yet he could not suppose that they were wanting in regard for him. He told the Deponent that it did not signify, he would not live with any of them, and that it was his determination, as soon as he could settle his affairs, to take a trip to London. The Deponent told him he agreed with him, that he thought his scheme right, that he had property to justify it and no family to leave behind him, that by that means he would break off his disagreeable connections, and that it would probably make a new man of him. The Deponent cannot be positive as to the time this conversation happened but thinks it was some time last fall after Mr. Berry had been in a course of drinking, that breaking off connections did not mean to the Deceased or the Deponent breaking off connections with his relations but with those who frequented his house and led him into his habits of drinking.
The Deponent further saith that at the time the will aforesaid was executed no other or forecidient will was cancelled to his knowledge, nor did he hear anything about one. Yes, he himself was perfectly sober at the time aforesaid. He was not much acquainted with Mr. Priggs but thinks he was sober also. Mr. Boyd appeared to be a little muddled; he had seen him much more in liquor than he was at that time. Mr. Marshall appeared to be sober at the time.
Mr. Berry lived about four weeks after the execution of the will aforesaid. He was called on to visit him about the 30th day of June, and he was dead when he arrived.
Being asked at what time he came to Mr. William Berry's house the day the will was executed, he answers, after nine o'clock in the morning, he believes, and went away about noon.
Sworn to in open Court.Test. Sam'l Tyler, R. Wills, P.G. County
The deposition of Archibald Boyd, Attorney at Law, aged years or thereabouts, who, being sworn on the Holy Evangel of Almighty God, deposeth and saith, to wit:
In the morning the will now exhibited was written the Deponent was awakened by a negro who informed him that there was a messenger from Captain William Berry, who had sent for him to go and write his will. The Deponent had been drinking hard the over night, was much indisposed and very unwilling to get out of bed, so that he sent word by the negro that he could not possibly go. The negro returned and informed him that the messenger bid her tell him that Captain William Berry was uncommonly ill and had dispatched another messenger for a doctor. Upon hearing which, tho' with the utmost reluctance, he got up and went over with the messenger.
When the Deponent opened Captain Wm Berry's hall door, he found him laying upon his back on the bed, which he had drawn from its usual place immediately opposite the two hall doors, the windows and doors being all fast. He had his left hand on his forehead; his right hand he held out to the Deponent as he entered. He took hold of the hand of the Deceased and asked him how he did. He told the Deponent he was dying in a very feeble tone of voice. He told the Deceased he hoped not, and on feeling his pulse and observing it was remarkably languid, the Deponent told him he was only a cup too low, and immediately ordered the girl to mix some spirits with some tea or coffee and give to him.
Whilst he was drinking, he informed the Deponent he had been puking excessively that morning and was apprehensive it would not stay upon his stomach. He drank it, however, Then, applying his hand to his forehead again, he made use of the following expression: "Oh this head, this head, this is not my head, I wonder whose head this is I have got"--an expression almost constantly in his mouth when in that situation. The Deponent told him that his (meaning the Deponent's) was a full match for his head. He asked the Deponent if he had been in that way too. He informed him he had and that the only difference between them was that the Deponent had resolution enough to get up and he had not. He answered that it was a pity, that he and the Deponent had as good heads as any in the County if they would only give them a fair chance.
Another cup of tea or coffee mixed as aforesaid was then handed to him, which he drank. He then informed the Deponent he had sent for him to write his will. He told the Deceased he was very willing to write his will but must drink something first, for that he could not write his own name at that time, when some sling was ordered. Which whilst he was drinking, he informed the Deponent, as nearly as he can recollect in these words: "These brutes won't come to see me before I die." The Deponent told him he had sent for them so often to see him die, and they had come and only found him drunk, that he supposed they would not be fooled any longer. "Well," says the Deceased, "I don't care, rot my skin, they shall not have a farthing of my estate. I will give it all to Billy"--Billy Berry Warman then in the room, the person mentioned in the will. The Deponent told him he had an undoubted right to dispose of his property as he pleased, and if he was satisfied the boy was his son, it was all very well, and he would write the will agreeable to his direction. The Deponent sat down to write the will, but finding his hand shook amazingly, he got up again, telling Capt. William Berry it would not do yet, he must take a little more powder.
He then asked the Deponent to some sit down on the bed by him, when it was mentioned either by him or the Deponent that it would be necessary to appoint a guardian to the boy. Capt. William Berry, admitting the propriety of the measure, asked the Deponent whom he should choose. The Deponent told him it was his business to make the choice, when he replied to the Deponent that he left the matter to him and bid him put in either Robert Peter of George Town or Col. Joshua Beall. The Deponent told him it would never suit Mr. Peter, who lived at a distance and had so much business of his own. "Well then," says Capt. Berry, "it must be old Joshua, but no, drot him, he is too old too." The Deponent then said, "I will tell you what, old fellow, he will live long enough to bury both you and me if we do not mend our manners, and that speedily too." On which he agreed on Col. Joshua Beall.
The Deponent then sat down a second time to write the will. He wrote or was writing the preamble when Capt. William Berry stopped him thus: "I will tell you what now, Boyd. I want you to put down in the first place my hound bitch Dido, I want to leave to my sister Williams, and her puppies to be equally divided amongst her children." The Deponent told him he would not put that down, saying it would be sufficient mortification to his sister to find herself altogether neglected by his will without being insulted by such a legacy as that. He insisted, however, and said it must be done; he wanted to leave the bitch to his sister on purpose to suck her eggs. The Deponent, however, positively refused to insert it, threw down the pen, got up from the table, telling Capt. Berry he had no intention of making a will. At last he agreed the Deponent should go on without inserting it, and after taking notice of some legacies, left the remainder, as in the will, to the boy, and directed the Deponent to write the will now produced and to insert what is contained in it.
Being asked if at the time of giving the directions to the Deponent to write the will aforesaid and at the time he signed the will, he conceives Capt, Wm Berry to have been of sound and disposing mind, the Deponent returns for an answer that at the time the will was executed he does not deem himself capable of answering the question from any observation he was then capable to make, being far gone in intoxication; but on reflecting on circumstances and comparing them one with another when sober, as well as from the particular knowledge he had of Capt. Berry when drinking, he is of opinion that he was not sober or of sound mind and understanding to make a will from the first moment he saw him that day. As to the execution of the will, his recollection of it is so imperfect that he cannot say anything positively about it. The Deponent thinks upon the whole that there was some conversation between him and Capt. Berry about an executor, but whether any person in particular was named, he cannot say. And with regard to a guardian, he was so well satisfied that Col. Beall was mentioned in the will that on hearing of Capt. Berry's death, when he was Col. Beall afterwards he mentioned the circumstance to him.
Being asked if his name subscribed to the will aforesaid was of his handwriting, he answers that it was and that the will now produced is of his handwriting and is the will which he wrote of Capt. Berry's. Being asked further questions, the Deponent answered that he got to Capt. Berry's when the sun was about an hour high or not so much.
Being asked how long after making the will be began to entertain doubts of Mr. Berry's being in his senses at the time of making it, he says that he thought very little on the subject until after Capt. Berry's death, altho' this Deponent remembers that in the evening of that day the following conversation between the Deponent and Thomas Marshall happened: That Berry had made that will with a view of inducing his brothers to pay more attention to him than they had done for some time past and that it was the opinion of the Deponent and of Mr. Thomas Marshall that it was Berry's intention that that will should not stand. Being asked how long it was after making the will the Deponent was in a situation capable of reflecting on Capt. Berry's being in or out of his senses at the time, he answers, "Two or three days, or perhaps less."
The Deponent is satisfied that Capt. Berry intended to make some further provision more than what was contained in the former will for William Berry Warman from conversation he had with him when perfectly sober--but not to leave him the bulk of the estate, as he had done by the last will. This conversation happened, he thinks, about ten or twelve months ago, and after the execution of the former will.
Being asked if he knew anything of the treatment Mr. Berry received from his brothers, he answers that he has heard the Deceased abuse, he thinks, the whole bunch of them, particularly on a day when he sent a boy to his brother Zachariah for brandy. The boy returned with a bottle hardly full, upon which he abused his brother exceedingly; that he never heard Mr. Berry abuse one of his relations when perfectly sober, nor does he know anyone who is fonder of his relations when he was sober, particularly his sister and her children. The treatment of his relations to him, the Deceased, was exceedingly tender whenever he saw them together, and they were always ready to run and execute his orders. He remembers that one evening the Deceased informed him that he had sent for Major Williams, who in place of coming immediately had come as far as Peacock's shop and dallied his time away there in sight of the house so that when he did come he shut the door upon him and would not let him in.
Yes, he recollects Dr. Steuart's being at Mr. Berry's and thinks Mr. Berry was not sober at the time Steuart came there. His nerves had not recovered their tone for that he had not drank a sufficient quantity of strong drink, his stomach would not bear enough to raise his spirits to their usual pitch. He thinks the will was drawn before Dr. Steuart came. He thinks that the cup which Mr. Berry drank out of was of the common size, that he cannot precisely recollect what proportion of spirit there was in the cups that he drank, but knows he usually drank about half spirit, and that he would refuse it usually unless it was of that strength and tell the person who offered it to him that he meant to poison him.
Being asked how long Mr. Berry had been drinking before the day the will was signed and to what degree, he answers that the first time he went to see Capt. Berry after the hard weather broke up he found him laying upon his back in the bed. He told the Deponent then that he had been at it ever since the snowy Tuesday. After that he got out of his bed and rode about the neighborhood in his sulky, and had got so well that he sent a note to the Deponent to see if he would lend him his seine, that he, Dr. Berry, and Mr. Oakly were going down to the landing to haul the seine in the morning and would be glad to have the Deponent's company. He returned for answer that he could not go but they were welcome to his seine provided Capt. Berry would go with them, for he knew that Capt. Berry knew how to use it.
The Deponent went to see Captain Berry a day or two afterwards, when he found him in bed drunk and was informed by Capt. Berry, upon his enquiring after the fishing, that Mr. Oakly and the doctor had gone but that he was not able to go, because he was drunk or drinking. He believes this to have been in the month of May, and afterward the Deponent never saw him sober until he died. He saw him two or three times between the time above mentioned and the making of the will and four or five times afterwards before his death. One of which times, whether before or after making the will he does not know, he, the Deponent, wanted to burn all the beds around the house.
He was exceedingly well acquainted with Mr. Berry. Being asked if the deceased was not apt to conceal his drinking from strangers, he answers that there never was a man that the Deponent was acquainted with that had the art of concealing his intoxication in so great a degree as Captain Berry. He cannot condescend upon any particular instance of his deceiving people by putting on the appearance of being sober; it was so common with him that the Deponent passed it by without notice or observation. He does not know whether on the day of making the will Mr. Berry drank anything besides the drops before spoken of. Being asked if Mr. Berry could be easy or calm or patient, and how long, without strong drink, he answers that he thinks he could hardly have supported his existence without a drink every quarter or half hour.
Being asked whether from the affection which Mr. Berry had always shown for his sister and the friendship between them he thinks he would, if in his sober senses, have been desirous of leaving the bitch to his sister and the puppies to her children. Answers, he does not think he would. Being asked if he ever heard Mr. Berry when sober make use of any disrespectful expressions toward his sister and her children--answers, he has repeatedly heard his express a great share of affection for them.
The Deponent remembers a circumstance related by Dr. Steuart in his deposition respecting the directions he gave Mr. Berry to execute the will, as if it had been a deed, and Mr. Priggs setting him right. Being asked that from the state Mr.Berry was in and the manner this will was directed to be written he took it to be a deliberated disposition of his property or merely the effect of drunkenness and being in an ill humor with his bretheren -- answers that he considered it as the effect of a temporary disgust taken up in the course of his drunkenness, which would cease so soon as Mr. Berry came to be perfectly sober and composed. Being asked whether This Deponent has seen Captain Berry when sober and composed -- answer: this Deponent hath seen him and been in company with him when perfectly sober and composed, and when this Deponent was so.
Being asked whether there was a striking difference between the soundness of Mr. Berry's mind and understanding when the Deponent has seen him so sober and composed and on the day when the will exhibited was signed. Answer: his mode of acting and speaking was very different, and the company that frequented Capt. Berry's house and were the most kindly received by him at that time would not be permitted to show their faces there when sober. When Capt. Berry was sober, he was fond of rational conversation and disliked irregularity as much as any person of the Deponent's acquaintance. While about the time the will was made Mr. Berry's house was little better than a brothel. When sober Captain Berry used to lament in the strongest terms his unhappy propensity to drink and was continually forming resolutions of amendment; during which time the censure of the world was slight in comparison to what he made on his own conduct. In particular the Deponent recollects his mentioning with a great deal of concern Mr. Williams and his sister being obliged to estrange themselves from his society in consequence of his folly. And that there was a very striking difference between the soundness of Mr. Berry's mind and understanding when he has seen him sober as aforesaid and on the day of signing the will -- in his eye who was so well acquainted with Mr. Berry and could so readily distinguish between his being drunk & sober, which was scarce possible to be distinguished by a stranger.
Being asked when Mr. Berry was drinking and particularly the last time when he was drinking whether there were not about him a number of kept mistresses and whether he was not fond of their company and influenced by them -- answers, there used to be two or three with him occasionally, although this Deponent seldom saw but one, who officiated as a nurse to him in his sickness. That he was fond of them the Deponent is satisfied; but Mr. Berry's being influenced by them, this Deponent knows nothing of the matter, as he would drive them out and bring them in again in an hour.
Being asked to declare his whole knowledge respecting the former will executed by Mr. William Berry, the Deponent saith that the will alluded to was made by Captain William Berry about eighteen months or two years ago to the best of his recollection, by which Mr. Berry devised the whole of his property to be equally divided among his brothers and his sister, Mrs. Williams, except 500 acres of land on the Ohio and fifty pounds (but whether currency or sterling the Deponent cannot certainly remember), which he bequeathed to Wm Berry Warman, and a bequest of four or five hundred acres of land on the Ohio to Walter Stone Chandler. This will was executed in the Deponent's presence, which he wrote and thinks he subscribed as a witness. After which it was sealed up and delivered by Mr. Berry to Nathaniel Pope, with directions not to deliver it to any person whatever without a written order from the testator. Deponent being asked whether William Berry was perfectly sober when this was made, answers, to the best of the Deponent's recollection the will alluded to was made soon after Capt. Berry's return from the warm springs, where he had gone for an recovered his health, and at a time when Captain Berry did not drink at all. Deponent being asked who were appointed executors to this will, answers, Zachariah Betty and Thomas Owen Williams. Q: do you know what became of this will after it was executed? A: that by what means it came into Captain Berry's possession after being delivered Nathaniel Pope, does not know; remembers seeing it but not reading it in Capt. Berry's desk sometime before his death and before the writing of the will not exhibited, as he thinks.
Did not a considerable of Mr. Berry's estate come to him by his father? A: always understood from Capt. Berry that the whole of the estate he set out in the world with came by his father. Was the estate he set out with and which he got from his father a considerable part of the estate he died possessed of? Says that proportion between what he got by his father and what he acquired by himself does not know, but recollects his purchasing three tracts of land which he died seized of. Do you know what lands he possessed besides them three tracts? A: he possessed the plantation on which he lived, but does not know the quality of acres it contains, and two thousand acres on the Ohio, besides several pieces of land in the neighbourhood of his dwelling plantation which he has been told belonged to Captain Berry, but of the quantity or quality of which or of the manner in which acquired he can give no account. Was the plantation on which he lived deemed a valuable tract? A: he always heard it deemed so. Were the lands Captain Berry purchased paid for, and in what manner? He believes the chief of the money paid for lands purchased came from his brothers and mother, that he has heard the Deceased boast of his having an excellent banker in his brother Zachariah.
Was it not a caution with William Berry when persons were at his house from whom he wished to conceal his drinking to keep strong liquor in his closet and go to it to drink privately, refusing at the same time to drink with the company? A: it was, and he has told the Deponent when he has called him into the back room to partake with him of liquor more adapted to the palates of them both than what the company were drinking that that weak truck would make him heave if he was to drink it. When you speak of Mr. Berry lying on his back in the former parts of this disposition, do you mean to signify that he was in a course of drinking strong liquor? A: he does.
Deponent further saith that William Berry, wile giving direction to the Deponent about the will -- that is, the will now exhibited -- called to him a negro wench called "Sibb" and told her he would leave either two or three of her children, who were malattoes, free, and asked the wench whether she was satisfied. The wench said she was, upon which Wm Berry desired the Deponent to leave them so in the will, which however, the Deponent neglected. Did William Berry read the will now exhibited after it was written and before it was executed? A: he did not. The Deponent read it at his request. When you read the will to William Berry, did he take notice that the directions which he had given to name a guardian to the boy and to leave the mulatto children free were not complied with by the Deponent in writing the will? A: he did not. Were there any other directions which Mr. Berry gave you omitted in writing the will? A: none that he can recollect.
Was William Berry, when sober, acquainted with the forms used in making wills? A: very well. Q: If Mr. Berry, when sober, was acquainted with the necessity of appointing an executor to constitute a complete and regular testament? A: it was his opinion he was, and it further was his opinion that there was hardly a man in the community who would have been less apt, when sober, to make such an omission or more ready to discover it when reading a will or hearing a will read, being a man of quick apprehension in the Deponent's opinion.
Do you know at what time Wm Berry Warman first came to the house of William Berry to live? A: he does not recollect particularly but believes it was last winter. The first time he thinks he recollects seeing him there was when he, the Deponent, paid a visit to Capt. Berry last winter, after the breaking up of the ice, when he recollects Wm Berry informed him of a quarrel he had the day before with the tailor who made a suit of clothes for said Wm. B. Warman upon his threatening to warrant him for the money.
Was William Berry, when in a course of drinking, easily imposed upon by those who might wish to take advantage of him in making bargains? A: he was not, he believes. Did you ever know of his being imposed on or of his making an imprudent contract when in that situation? A: I do not recollect being present at any bargain made by Captain Berry when in that was, tho' I have heard him again and again say that he never should get out of debt with a certain John Mahue, who kept a tippling house in his neighbourhood, because John could not write himself & kept all the charges he had to make against him in his head until he found Capt. Berry sufficiently drunk for his purpose and then handed him his book and made him make the charge generally as much as he thought proper.Q: whether do you think Mr. William Berry or yourself at the time of making the will now exhibited was most under the influence or operation of strong liquor? Answers, when I first entered the room, I considered myself the soberest of the two, and at the time when Capt. Berry requested me to leave the bitch to his sister, I could not help being surprised to find him so far gone in a short time, but after this I cannot with any degree of precision tell which of us reached the gold we were both bound to, or in other words, which of us got right drunk soonest, or whether Capt. Berry got to the height of intoxication at all while the will was about, altho' he did and believes Wm Berry did also. Q: if Mr. Berry, according to your conception, seemed in the situation you have before described at the time of writing and executing the will now exhibited, why did the Deponent write and subscribe as a witness? Answers, because he was not sober himself.
Have you not seen many men above the age of twenty-one years who were neither idiots, madmen, or lunatics, or their senses impaired by sickness or old age, who did not possess as much understanding as Mr. Berry did at the time of making and executing the will? Answers, he has. Do you think that Capt. Wm Berry at the time of writing & executing the will now exhibited had an understanding and capacity equal to that which in the common course of life men in general possess? Answers, he had not above one half of his own usual understanding. The preceding question being repeated, he answers, Wm Berry being so much superior in point of understanding to a great part of mankind, he would have been able to express himself upon most common subjects with more show of judgment & understanding than a great many of the common part of mankind would if sober.
Was he in a situation to act as rationally as men in general would on such occasions? Answers, he thinks he was not. Do you think that men in general could have overreached Mr. Berry in a bargain or contract respecting his property? Answers, he thinks he could have done it, because he told the Deponent he would give him 3000 pounds of tobacco for drawing the will, and the Deponent is of opinion if he had drawn a not of hand for such a quantity of tobacco payable to himself Wm Berry would have signed it. Did William Berry give you 3000 pounds of tobacco for drawing his will? Answers, he did not.
Was William Berry, when the will exhibited was made & executed, capable of looking after and managing his plantation and other affairs with judgment & discretion? Answers, he was not. Was he from bodily infirmity or weakness of mind incapable of transacting his business as aforesaid? Answers, he thinks from both. Do you think Capt. William Berry was capable of either truly considering and forming a rational judgment concerning his common plantation & household affairs? Answers, from his mode of managing he is of opinion he could not form a rational judgment even as to the management of his common household affairs. Did not Mr. Berry, at the time of his making & executing the will now exhibited, manage and conduct his business & household affairs as well as the Deponent did at that time? Answers, the principal business of both, & their chief study, being to take care that regular supply of spirituous liquors should be provided.
Does he think that he and Wm Berry was nearly in the same state of mind when the will exhibited was made? Answers, as nearly as ever two men's were in the world. Of the two Wm Berry certainly was the worst: he confined himself entirely to his bed, whereas the Deponent rode about. Was it customary with Mr. Berry to abstain from eating in a great measure while in a course of drinking? Answers, no persuasion could induce him to eat hardly a mouthful for days together. When Capt. Berry was so exhausted by long fasting & drinking and the effects of liquor happened to be a little worn off by a nap of sleep or other ways, what quantity of liquor would it take, in the weak state he was in at the time the will exhibited was made, to bring him to his common pitch of intoxication? Answers, he cannot tell, supposes a small quantity sufficient.
Sworn to in open court, Test. Saml Tyler, Reg. Wills P.G. County
P.G.'s Co., to wit, the Deposition of Thomas Marshall, aged 23 years, being sworn on the Holy Evangels of Almighty God,
Deposeth and saith that the evening before the will was made about three o'clock in the day, this Deponent found Captain William Berry in bed and asked him how he did. He told this Dep't, "Poorly," but he was going to get up again & desired him to sit down upon the bedside where he was lying, for he was at a great loss for company, and therefore the Deponent should not leave there that night. Upon which the Deponent consented to stay.
The Dep't sat by the bed conversing with him until sunset. Wm Berry grew very unwell & was taken with a puking & continued to grow more unwell until, the Dep't believes, about ten o'clock that night. Capt. Berry desired his nephew Jere. Berry, about the hour of eight, to go for some one of his brothers -- Dep't thinks his brother Benny -- and if he was not at home, to call on Thos O. Williams. The messenger returned about half an hour after nine and said he had called on them both or spoke to them both, and they said they could no ride out that night. The messenger, Jere. Berry, and this Dep't sat with him till twelve or one o'clock that night. Capt. Berry found himself getting much better and desired that Jere. Berry & the Dep't might go to bed. Upon which they all went to bed, and all rested very peacefully till morning as far as this Dep't knows.
When Dep't looked, about the break of day, the fit of puking had returned upon Captain Berry. He desired that they get up to his assistance, for that he could scarce get his breath. Upon which they both went into the room where he lodged and found his account very true. He desired that this Dep't might go immediately for Dr. Steuart and to dispatch a messenger for Henry Bailley to write his will. Dep't set off for Dr. Steuart early, about fully day, and little Billy Berry Warman was sent for Henry Bailley. The Dep't got to Dr. Steuart's about sunrise and desired him to come immediately to Capt. Berry and returned back to Capt. Berry's, the Deponent thinks about eight o'clock in the morning.
When the Dep't went in at the hall door, he discovered that Capt. Berry was yet in bed and Mr. Boyd had come in place of Henry Bailley to write his will. Mr. Boyd was sitting by his bedside conversing with Capt. Berry. Dep't first asked Mr. Boyd how he did -- he made this Dep't no answer -- then informed William Berry that Dr. Steuart desired this Dep't to tell him that he would wait upon him immediately after visiting some patients of his in town. First upon William Berry's hearing this he replied for answer and said he believed there was occasion then, he was getting much better, for he was going to get up directly. Soon after, he did get up. Dep't thinks, to the best of his knowledge, he shaved himself immediately after he got up, and then drank some laced coffee, and put on a clean shirt, clean stockings, and walked over the floor several times.
Dep't thinks Mr. Boyd proposed to Capt. Berry to have pen, ink, & paper brought before he got up, that if he did not do the business soon it would not be so convenient after. Upon which they were brought, and Mr. Boyd began writing the will. He wrote, the Dep't thinks, about a line and stopped for some small space and said he wanted a little more powder. He had some spirituous drink given him. He then took up his pen again and shut his eyes and shook his head. On which Capt. Berry turned his head towards the Dep't, who sat on the contrary side of the bed, and smiled at the Dep't and said he was afraid Mr. Boyd would not do, and winked at the Dep't and nodded his head at the same time at Mr. Boyd. Mr. Boyd went on with his writing for some little time, until, Dep't thinks, word came into the room where they were sitting that Dr. Steuart was coming. Capt. Berry told Mr. Boyd that he had better walk into the back room, where he would be more silent to himself that he could do the business without any interruption. Dr. Steuart came in and had some conversation with Capt. Berry whilst Mr. Boyd was in the back room writing. Captain Berry, soon after this, got up and dressed himself as before related. Mr. Boyd walked out of the back room and spoke privately to Capt. Berry and sat down in the hall amongst the rest of the company. Soon after, Mr. Jno F.A. Priggs cam. We all sat a while together, and than Mr. Boyd returned into the back room. The company sat and conversed a considerable time together, chiefly about Mr. Carnes's balloon.
After which Dep't thinks he walked out in the yard with Mr. Jere. Berry, and Dep't came again into the room where the company were. Mr. Boyd had walked out at the back door. He came in and carried out a chair at the back door, sat down in it & nodded.
Work came to the Dep't by Capt. Berry's boy, Jeffry, who asked Dep't to walk in to his master, and Dep't went in. Mr. Boyd & Capt. Berry got out of their seats and made towards the Dep't. They both asked the Dep't to sign the will. Dep't sat down and wrote his name to it, and Capt. Berry laid his finger on the seal, and the Dep't thinks he acknowledged it to be his hand & seal last will & testament.
Dep't retired out of the room and stayed some time in the yard. Returned into the house again. Company had gone into the small room. Dep't seated himself in company. The conversation still was about Mr. Carnes's balloon for about half an hour. Dep't again walked out in the yard in company with Jere. Berry. Dr. Steuart and Jno F.A. Priggs came out where we were, got their horses, and went off.
About an hour after, Mr. Boyd and this Dep't went off together; Dep't went home with Mr. Boyd. On their way home Mr. Boyd told the Dep't that he had wrote Capt. Berry's will today & said that he did not think he was capable of writing so good a hand as he had done today, but yet not so well as he could wish. However, it is a matter that he could stand up in the face of a court & defend any day. Mr. Boyd after a while said he imagined it was only done in order to make his brothers court him. Dep't replied to him for answer & said it might be so.
When you went to William Berry's the evening before he made the will now exhibited, did he appear to you to be sober? A: no, he appeared to be a little lively with liquor. Was the conversation he held with you that evening sensible & rational? A: as much so as the Dep't knew him to be usually capable of.
When Mr. Berry called you and Jere. Berry to his assistance the next morning, as you before related, did he appear to be drunk or sober? A: he was continually puking while he was in the room, and Dep't did not exchange more than a word or two with him. Did what you heard Mr. Berry say at that time seem to be sensible or otherwise? A: it appeared to Dep't to be sensible & reasonable. Did the orders Wm Berry gave for a person to go for the doctor and a person to write his will proceed entirely from himself? A: yes, the directions were given by Berry to him, the Dep't. Did Wm Berry from the time the Dep't came into his room that morning until the time the Dep't went for the doctor drink, to the Dep't's knowledge any spirituous liquor? A: not a drop as he remembers. Did Wm Berry from the time the Dep't & Jere. Berry went to bed that night until they returned to Mr. Berry that morning, drink any spirituous liquor to the Dep't knowledge? A: not any that he knows of. When the Dep't returned to Wm Berry after he had been for Dr. Steuart, as before related, did Wm Berry appear to him to be drunk or sober? A: he did not appear to be drunk, tho' fatigued with drinking which he had drank before.
Did the Dep't subscribe his name as a witness to the will exhibited in the presence of Wm Berry, Archibald Boyd, John Steward, & John Fred'k Augustus Priggs? A: yes, he did. Q: how much spirit he supposes Wm Berry drank in the coffee before spoken of? A: he had it mixed as he thinks he, the Dep't would have mixed grogg himself. He did not use more than a table spoon full with the coffee before mentioned. Do you think that Wm Berry drank any spirit except the spirit mixed in the coffee, between the time the Dep't came to Wm Berry from dr. Steward and the time the will was executed? A: yes, he drank of the toddy once or twice that was passing in the company of Dr. Steward & others, & he drank sparingly. He does not know of his drinking any other spirituous liquor at that time. Was Wm Berry, within the times aforesaid, drunk or sober? A: he appeared to him to be sober. During the course of that day in which Wm Berry made the will exhibited, did he appear to be drunk or sober? A: he appeared to be a little muddled in drink in the forenoon first after he returned from Dr. Steward's. Did it appear to the Dep't that Wm Berry was affected with the liquor he drank on the day the will was executed? A: it did not except that he appeared to be cheary or lively after it.
From the intimate footing the Dep't was on with Wm Berry and in his house, does the Dep't think that Wm Berry would have drank strong liquors privately on the day the will was executed without his knowledge? A: no, he does not think he would. He has known him drink strong liquors privately from others but does not think he would from him. Did you hear WM Berry give any directions to Archibald Boyd to insert in his will a devise to Sister Williams of a hound bitch and her puppies to her children? A: no. Had Wm Berry the art of concealing his being drunk or did drunkenness appear in him a plain as in other men? A: no, he does not think he could.
In what state did Mr. Boyd appear to you to be in the course of the day? A: when he first began to write the will, he appeared to be more drunk than he was a little while after. After he had wrote the will, he got very drunk. By Mr. Boyd's nodding, as above mentioned, does the Dep't mean he was asleep? A: yes.
Did you ever hear Wm Berry express his sentiments of Wm Berry Warman? and what were they? A: he has heard him say he was a find boy, he was his fine son, and he would make a bright man of him. He has heard him say so both when he was sober, drunk, & lively. Likewise he has heard him say he would leave him the chief part of his fortune. He has heard him say so many times, but he was always lively with liquor, he thinks. He has two or three different times heard Wm Berry say, when sober, before Wm Berry Warman came to live with him, that he had such a son, that he would send for him down to his house and do something very clever for him. In chat manner did Wm Berry treat Wm Berry Warman after he came to Wm Berry's house? And how did Wm Berry Warman behaved himself very discreetly to Mr. Berry.
When Mr. Berry was in a course of drinking, was an advantage in any bargain or contract respecting his property easily to be had of him? A: intirely to the contrary. William Berry had observed to Dep't that he thought he could make a better bargain when lively with liquor than sober. And the Dep't has heard Wm Berry make the foregoing observation both sober, drunk, & lively. Did you look upon Mr. Berry, until the time of his death, as a man careful of his property and who was making money? A: yes, exceedingly so in general, only at times when drunk; when drunk he was confined to his bed and not able to see after his business as other men could.
Had you ever any conversation with the brothers of Wm Berry, or any of them, since his decease respecting the setting aside of the will now exhibited? And what conversation? A: I have had some conversation with them. They have observed to me they did not think the will made by their brother when he was rational or in his senses, and they were determined to set it aside if they could, that if it was established they should be considerable losers from their father's estate, and it would be a cruel think if it was established; they should suffer some hundreds of pounds. The Dep't told them he thought their brother was in his senses. Did the brothers of Wm Berry, or either of them, ever make any proposals to you or direct you to make any proposals or offers to any person, particularly to Ann Thompson, respecting the will now exhibited and if any such offer or proposal was made, what was it? A: nothing more than they have observed to me that they would do something clever for Nan Thompson for the services she had rendered their brother during his illness, that all the legatees should be paid off honorable except Wm. B. Warman, to whom they would give a thousand acres of the back land & four or five hundred pounds to show the world they would act honorable by the boy, that it would be a cruel thing he should have so great a part of their father's estate. They told me to tell Nan Thompson she should have forty or fifty pounds, that is, Zachariah Berry & Benjamin Berry, and that there was nothing left her in the will, and they thought she ought to have had something for the services she had rendered their brother.
He informed Nan Thompson that Zach'h & B. Berry informed me that she should have the above sum. Nan Thompson observed to me she thought she deserved something for the services she had rendered, but if there was no provision made in the will, she did not expect to get anything. Did you inform Nan Thompson, or get her to understand, that she was to have forty or fifty pounds in case the will was set aside? Or that she was to have it at all events? A: he formed Nan Thompson she was to have that sum in case the will was set aside and the brothers got the property of the man from whom it was due. Had Nan Thompson made any demand upon the brothers of Wm Berry, or either of them, for any claim she had ag't Wm Berry or his estate? A: not to his knowledge. What object -- from the tenor of the conversation between you and Zachariah Berry -- did they appear to have in view in asking you to make the foregoing declarations to Nan Thompson? A: they appeared to be desirous of satisfying Nan Thompson. They had heard she was uneasy for fear of not getting what she had understood was left her in the will.
Dep't saith this conversation happened about a fortnight or three weeks after Wm Berry's death. Where was the will now exhibited at that time? A: in the hands of the Register, he believes.
Did you see Wm Berry in the course of last winter? And what was his situation and course of life from some time last winter until he died? A: he saw him frequently from the latter part of the winter to the time of his death. He lived very retired & sober in the latter part of the winter, and from that time till the time of his death at different times he drank very hard. From the time he first began to drink after the latter part of the winter, did he ever see him perfectly sober & free from the effects of strong liquor? A: he appeared in general to have more or less the effects of liquor on him. But when he would take too large a quantity, it always appeared to him from every acquaintance with Wm Berry to create a quantity of bile on his stomach, and he was obliged to take a little spirituous drink occasionally so as generally to cool & work off the strong effects of what he had taken so large a portion of.
Did he ride about & do his business from the latter part of the winter? Or was he confined at home? And if so, what was the cause of his confinement? A: he believes he rode as much about his business in the neighborhood since the latter part of winter as ever he did. He was not more confined at that time from one fit of drinking than he usually had been from other fits of drinking.
Was the mother of Wm Berry Warman or any of his friends or relations with Wm Berry at or about the time of making the will exhibited? A: to the best of his knowledge there was a sister of the mother of the boy at Wm Berry's sometime after the will was made. There was no other relation of the boy's there, except his aunt, at the time aforesaid. Was there any friend of Wm. B. Warman or any person who interested themselves on his behalf with Wm Berry before or about the time of making the will? A: he does not know there was.
Did you see Wm Berry frequently between the time of making the will and his death? A: yes. What was his situation? Had he ever any conversation with Wm Berry, when perfectly sober, respecting the disposition of his property? and if he had, in what manner did Wm Berry, when sober, declare he intended to dispose of his property? A: he never had, to the best of his knowledge, any conversation with Wm Berry when perfectly sober respecting the disposition of his property, but whenever he spoke to him he was generally lifely. At these times he always declared he never would leave either of his brothers or sister any part of his estate, that they all had a sufficiency to live on, and were independent enough without any part of what he had. If he was to leave it to them, they would only be a pulling & hauling & quarreling amongst them. Some would say, "Poor drunken fellow, he done better by you than me"--and he thought it was better to prevent any thing of the kind. At some of these times he has told him he be drot if he would not leave his estate to this little boy, laying his hand upon W.B. Warman.
Did Wm Berry never tell the Dep't he would give his estate to any other person or persons except W.B. Warman? and at what time? A: he has heard him say at some different times he intended to leave a few legacies else. Did Capt. Wm Berry at the time he desired the Dep't to go to Dr. Steward promise to give him any thing? and if he did, what did he promise to give? A: nothing more than that he would do five hundred times as much for the Dep't, which was a common saying with him. Is there not a legacy in the will exhibited left to the Dep't's sister? A: I have understood there was. Q: whether when Wm Berry was in a course of drinking he has not heard him declare that he would rather give his estate to Nan Thompson & Nan Hay, two women about his house, than that his brothers and sister should have it? A: yes, he has.
Were the declarations of Wm Berry respecting his resolution not to give his estate to any of his brothers or sister & to give it to Wm B. Warman made when he appeared to be displeased or angry with this brothers & sister or otherways? A: he has heard him make this declaration when not displeased with his relations, and also when he did not appear to be displeased with anybody. Q: if there was not great intimacy & friendship between Wm Berry & his brothers & sister when Wm Berry was sober? A: it always appeared to him to be great intimacy.
Did not Zacha. Berry or Benja. Berry produce you book called The Deputy Commissary's Guide in which the oath was wrote which is commonly made use of to prove a will? and whether he, the Dep't, did not tell Benja. or Zacha. Berry that he would not take that oath? A: no. Zacha. Berry at Benja. Berry's and in company with Benja. Berry showed the Dep't a book called The Commissary's Guide. Benja. Berry read some part of a page in the book which he said he imagined would be administered to him, the Dep't, for the proving of the will. Dep't told him that he did not imagine that what he read to the Dep't would be put to him; if it was, he thought he would object to it. Dep't told Benja. Berry he imagined he would be sworn to answer truly such questions as would be asked him. Dep't saith his reasons for saying he thought he should object to the oath aforesaid was that he did not see William Berry sign his name to the will, or any of the other witnesses subscribe their names to the will, and that Wm Berry had been drinking a little that morning, and Dep't did not know at that time that the Dep't should consider Wm Berry to be a man perfectly sober and clear of drink, and Dep't says that to his knowledge he never intimated to any person that he did not think that Wm Berry, at the time of executing the will exhibited, was not of sound and disposing mind and memory. Dep't says that the brothers & sister of Wm Berry are in independent circumstances.
Sworn in open Court.Test. Sam'l Tyler, Register
The deposition of John Priggs, of full age, being sworn on the Holy Evangel of Almighty God,
Deposeth & saith that he, hearing that Capt. William Berry was sick, he called to see him and found him dressed in his clothes lying on his bed. Dr. Steuart, Arch'd Boyd, Thomas Marshall, and one of his nephews was there. He saw the doctor in the other room and asked him how Capt. Berry was. His answer was that he was low-spirited, and he believed that was the chief of his complaint.
Dep't went into the room, spoke to Wm Berry, and he seemed very glad to see him. Dep't asked him if anything extraordinary was the matter with him. He said he was not long for this world. Dep't cheered him up as well as Dep't could and told him he was accessory to his disorder from the bloated countenance he appeared in. Other conversation passed concerning Mr. Peter Carnes's balloon in which Mr. Berry joined in it and appeared to be very cheerful after taking some drops from Dr. Steuart. Mr. Boyd insisted on his taking a dose of the same, which he did. They all went into the hall, and Mr. Berry seemed as cheerful as he had been for twelve months past.
After this conversation about the balloon the Dep't was about taking his leave. Wm Berry begged the Dep't to stay to dinner. Dep't told him he had business on hand that he could not stay and begged to be excused. He then asked the Dep't to stay only a few minutes, that he had an instrument of writing to execute and mean time desired the Dep't to refresh himself with some toddy and bread & cheese, which he accordingly did.
Mr. Berry then spoke to Mr. Boyd to finish what he had been about. Mr. Boyd brought out a paper from the other room and sat down and began to write. Mr. Berry, standing by him, spoke low and appeared to be dictating to him what was done in about two minutes, and what Mr. Boyd wrote seemed to be near the bottom of the paper.
Mr. Berry then desired this Dep't, Dr. Steuart, & Thomas Marshall to be evidences to what he was doing. Dep't apprehended at first it might be a deed, but seeing the paper not indented, Dep't asked Mr. Berry if that was not his will. He answered it was. He signed it and was going to acknowledge it as his hand & seal. The Dep't told him there was a formality necessary to be observed in executing wills. Dep't repeated to him what it was. Dep't told him that after acknowledging it to be his hand and seal that he must publish and declare it to be his last will & testament. Mr. Berry turned to Mr. Boyd as if he was going to say something to him. Mr. Boyd told him that really that formality was necessary. Mr. Berry then sealed that will and repeated the words "I acknowledge this to be my hand and seal, and publish and declare this to be my last will and testament," and Dr. Jno Steuart, Thomas Marshall, and the deponent subscribed their names as witnesses thereto, at the request and in the presence of Wm Berry.
And after executing the will there was nothing material. Mr. Berry and the company entered into conversation, and Wm Berry appeared to him very cheerful & glad the business was done.
The will exhibited in court being produced to the Deponent, he says that that is the paper he saw Wm Berry sign, seal, publish, & declare to be his last will & testament, and that he subscribed his name as witness thereto, as did also Dr. Steuart & Thomas Marshall, in the presence and at the request of William Berry, and the Dep't saw Dr. Steuart & Thos Marshall sign their names as witnesses but does not particularly recollect seeing Mr. Boyd sign his name as a witness to the will. And the Dep't says this was done on the second day of June last.
Q: whether at the time that Wm Berry executed the will now exhibited the said Wm Berry was of sound & disposing mind, memory, and understanding? A: that to his apprehension he appeared to be perfectly in his senses as he, the Dep't, ever saw him in his life, and the Dep't has known him upwards of thirty years, and that there was nothing in his conversation or behavior at that time that denoted the least insanity.
Was you intimately acquainted with Wm Berry? A: as much so as any person who lived at such a distance could be, being about twenty miles asunder, and frequently were at publick places together, & the Dep't frequently was at Wm Berry's house, and the spring before last was with him at his house and in the neighbourhood four weeks together. Was Wm Berry cautions in his contracts and sagacious at making bargains even when he was not sober? A: he believes he was. Was Wm Berry, during the time the Dep't stayed at his house on the day on which the will was executed, drunk or sober? A: he thinks if he was any ways enlivened it must have proceeded from the drops Dr. Steward gave him. How long did the Dep't stay at Mr. Berry's at that time? A: as nearly as he can recollect, about two hours. Did Mr. Berry appear to the Dep't to be sober the whole time he stayed there? A: yes. Did you not understand from Mr. Berry that he had been in a course of hard drinking? A: he guessed that to be the cause of his complaint, tho' he did not hear it from him or any other person. He knows that at times Mr. Berry drank hard but that no intoxication ever put him out of his senses that the Dep't ever saw, that in that same state he seemed always to be on his guard, and, the Dep't thinks, could make as good bargains as at any time.
In what situation did Archibald Boyd appear to be in on the day on which the will was executed? A: he was not sober, he was enlivened with liquor, but not so as to be past doing business. At the time Wm Berry begged & requested the Dep't to stay, he took the Dep't to one corner of the room and wished he had been there a day or two before to have done the business for him, that this little body Boyd had been drunk & plagued him a good deal and he wished he could have got the Dep't to have done the business for him. Q: whether Mr. Berry, when sober, was not himself capable of making a will or deed? A: be believes him to have been capable at all times to have done it that ever he saw him.
Sworn in open CourtTest. Sam'l Tyler, Reg'r
The deposition of Henry Brookes, aged 56 years or thereabouts, being sworn on the Holy Evangel of Almighty God,
Deposeth and saith that he called at Mr. Wm Berry's about the middle of June last and about ten days before his death. When this Deponent got to the house, he saw one of the young Mr. Berrys and asked if Mr. Berry was at home. He told him, Yes, but he was unwell. Deponent asked him if he was in bed. He answered, He was on the bed and unwell, and Deponent asked if he was so unwell that he could not be spoke with. The Deponent gave him his name and desired to speak with Mr. Wm Berry. He left him at the door and went into the room. He returned & told Deponent Mr. Berry would be put presently. He accordingly soon came out. Deponent asked him how he did; he said, "Very poorly." Deponent asked him what had been the matter with him, and he said he had been unwell for some time, & seemed very unwell. Deponent told Mr. Berry his business. He said it was very well and asked him if he would drink something. Deponent said he would drink a little toddy. It was late in the evening, not long before sundown. They had a little bowl made, & they both sat down together.
They had sit but a little while & had a drink or two when the Deponent looked around and saw a little boy (Wm Berry Warman, mentioned in the will), and Deponent said to Wm Berry,. "Billy, who is this?" Says he, "That's my son." Said Deponent, "Who, Warman?" Says he, "Yes." Deponent asked what was his name, Wm Berry? Answered Capt. William Berry, "He is christened 'Wm Berry' and will never go by any other name." Deponent asked him long he had been there, & Capt. Wm Berry said, "About five, six, or seven months," and that he had been to school or was going to school, he does not know which, and that he would make a very clever fellow of him. Deponent told Mr. Berry he thought he ought to do something clever for him. He said that he had left him all his estate. Dep't said, "All your estate, Mr. Berry?" He said, "Almost all. I have made my will. Boyd wrote it." Deponent then clapped his hand on Mr. Berry's shoulder & said, "Billy, I like you better than ever I did."
With that Mr. Berry pushed his chair a little back in order to get to his desk and said, "I will show you what I have done." He went to his desk and brought Deponent a paper. "There," said Mr. Berry, "read that." Deponent did read it, and it was a paragraph of the will. Deponent remembers Letty Marshall's having two or three negroes left her. They were called, as Deponent believes, by their names. Dep't thinks there were four or five negroes left to Richard Berry. There were 500A of land left to Mr. Chandler, and Mr. Berry told him it was on the Ohio or thereabouts. And two of the Mr. Berrys--he thinks both Jerry Berrys--had 500A apiece. And he thinks Rich'd Berry had part of the land given him by the paper but is not sure. But thinks there were 2000A of land given.
After Deponent read it over, he laid down the paper and asked Mr. Berry where was the rest of his estate. He said, "Every farthing, real and personal besides, I have given to this boy" and nodded his head at Wm Berry Warman, who was present. Dep't asked him how his friends liked that. He said he did not care a farthing how they liked it, for they had all got enough, and what he had was his own, and he would do with it as he pleased, and told Deponent he (Wm Berry Warman) was a fine boy, spoke much in his praise, and said that he had not a doubt but he would make a very fine man.
Being asked if he had no conversation with Mr. Berry respecting the motives that ought to induce him to provide for the boy on his mother's account, Deponent said that he (Mr. Berry) had taken a great deal of pains to make that boy. He said (Mr. Berry) he knew if that he had used her ill, and Deponent told him that as he had such a for the child he must have an affection for the mother. He (Wm Berry) said it was all over now. Dep't said he never heard anything against the character of the boy's mother exclusive of the circumstance of having the child by Mr. Berry.
Dep't says that the preceeding conversation he had with Mr. Berry respecting his will was just about sundown. When Mr. Berry first came out, he appeared as if he had been drinking and a little muddled, but after they had drank a drink or two of the toddy, he appeared not to be at all in liquor and conversed as well as ever he heard him, that they had a good deal of conversation respecting an account that he (Dep't) went to have to settle & to get his money for. Mr. Berry gave him his reason why he could not pay him and begged Deponent to draw his account in the morning and leave it with him, and as Dep't returned, if he would call on him, he should have his money, and told him how he expected to get it.
Dep't says he lay that night at Mr. Berry's in the same bed with Mr. Berry, there being company in the house, among others the two Jeremiah Berrys, the boy, and young Mr. Marshall was there, but he does not know if he lay there. Dep't and Mr. Berry went to bed together at the same time. They both got up together before sunrise and went to the horseyard, where Mr. Berry's stallion was kept. As they walked from the horseyard, Mr. Berry spoke of the boy again, called him his son, and said what a fine clever boy he was and how well he would be off, and how much land he had given him at the Eastern Branch, and told him how many acres, and of some purchases he had made there lately, which was more than Deponent thought he had.
He never heard Mr. Berry stir during the night, and Dep't is very wakeful, but was much fatigued with his ride & sleepy that night. Wm Berry appeared as fresh in the morning as ever he did in his life, and neither Mr. Berry nor Deponent drank anything till their return from the horseyard to the house, and the conversation they had in the morning respecting the boy was before either of them had drank anything. When they returned to the house, Mr. Berry made a little julep, as the Dep't would have done, of which they both drank. Dep't never discovered that Mr. Berry was in any manner intoxicated before he left his house.
Dep't about two or three days after called on Mr. Berry on his return, and he appeared to him to be sober. It was before breakfast, and he breakfasted with Mr. Berry and left his house about nine of the clock, but at neither of the times did he see any women about Mr. Berry's but negroes, nor see any disturbance. Being asked if there were any horse jockies there, says there was a couple of men who appeared to be genteel, clever men, and he understood from Mr. Berry that one of them was an acquaintance of his and lived near Mr. Thomas Spriggs and that they had four or five clever horses to sell. The time he called at Mr. Berry's on his return as above he apologized for not paying him according to his promise and said if he would down at court, which was to be about ten days after, he would not disappoint him but give him his money.
Mr. Berry looked very poorly. He had not heard of his having been on a debauch of drinking until he went to Mr. Williams's, when he heard it, which occasioned him to take more notice of him the second time he went to his house. Being asked what conversation Dep't had with Mr. Williams respecting Mr. Berry when he (Dep't) called at Mr. Williams's house, says he don't remember until the two young Mr. Berrys came over to Mr. Williams's house soon in the night to lodge. Deponent told Mr. Williams pretty nearly but not so particular what he has before related, that Mr. Berry told him about the boy. He found it was not very agreeable to Mr. Williams and did not say much more about it. Don't remember that he (Dep't) told Mr. Williams anything about Mr. Berry's being drunk when he called on him, but told him he looked as if he had been drinking. He (Dep't ) did not see Mr. Williams after he had been at Mr. Berry's the second time.
Being asked if the paper exhibited which as the will of Mr. Berry was the paper shown to him by Mr. Berry, says it is not but that it was a smaller paper, that it contained but a few lines, that Mr. Berry told him it was a paragraph of his will. Being asked if the paper shown him was in Mr. Berry's handwriting, says he does not know it well enough to be able to speak positively and that he does not know it was in Mr. Berry's handwriting but thinks Mr. Berry told him it was Mr. Boyd's handwriting, but is not clear in it. Being asked whether either at the first or second time that he breakfasted at Mr. Berry's if Mr. Berry mixed any spiritous liquor with his tea or coffee, says that he did not to his knowledge and that he has no reason to believe he did, that he had no thought of the subject, that they both sat at the same table and were helped out of the same teapot, and that Mr. Berry helped the Dep't, that he did not see any rum or spiritous liquor at the table.
Sworn in open Court.Test. Sam'l Tyler, Reg'r
The Deposition of William Cooke, aged thirty-eight years, being sworn on the Holy Evangels of Almighty God,
Deposeth and saith that in the evening of the twenty-fifth day of July last William Berry Warman came to the house of this Dep't and informed him that a paper purporting to be the will of the late William Berry deceased had been that day taken out of his possession by Jeremiah Berry, Jr., and detained from him, as he believed, with design to destroy or suppress the same, and applied to this Dep't to advise and direct him how to act in order to recover the said paper. Upon which this Dep't immediately wrote to the said Jeremiah Berry informing him it was probable he was not acquainted with the consequences that might attend his conduct and acquainted him that if the will was not immediately produced a prosecution would be commenced and steps to establish the contents of the will and to carry the intention of the said William Berry into execution. At the same time that Dep't gave the said William Berry Warman instructions to go the next day to the Court at Upper Marlboro (then sitting) in case he did not get the will upon delivering the letter this Dep't had wrote as aforesaid to Jeremiah Berry, Jr., or assurances that it should be immediately produced, and this Dep't, at the same time, wrote a letter to Colo. Joshua Beall, one of the Justices of the Court, mentioning the boy's business, to be delivered by him in case he should be under the necessity of applying to the Court on the subject.
On the twenty-sixth day of July in the afternoon Mr. Zacha. Berry came to this Dep't, and after some conversation on the subject of the will aforesaid, he produced to this Dep't the paper now exhibited as the will of the deceased William Berry, & told this Dep't it was the same paper which the day before had been taken out of the possession of Wm Berry Warman by Jeremiah Berry. He, at the same time, said Jeremiah Berry had acted by his advice and directions but declared he had no intention of secreting or suppressing the will, assigning some reasons why he thought, however, he was entitled to the possession of it. This Dep't then informed the said Zacha. Berry that it was probable Wm Berry Warman was then at Marlboro attending the Court about this matter, at which Mr. Zacha. Berry seemed surprised & uneasy. Whereupon this Dep't then recommended to him to lodge the said paper immediately with the Commissary if he meant to act uprightly or wished to remove any aspersions that might be cast on his character. This Dep't hath since heard it was done in two or three days after.
Being asked if Mr. Zacha. Berry ever enquired of this Dep't what would be the consequences if the will was destroyed, says no such enquiry was made nor any conversation passed between this Dep't and the said Zachariah Berry at that time to that purport or effect. But the said Zacha. Berry then said to this Dep't that if he had seen the boy himself before he went to Marlbro he would have shown him the will & given him the assurances this Dep't had required.
Sworn to in open CourtTest. Sam'l Tyler, Reg'r
DECREE
Will established. Judgment that the will of the late William Berry and probate be admitted on record
Ruled by the Court that the libellants be dismissed on paying all costs and charges.
The Will
In the name of God Amen. I, William Berry, of Prince George's County in the State of Maryland, being weak of body but of sound memory and understanding, make this my last will and testament. In the first place I bequeath my body to the ground and my soul to God, who gave it, and in the next place I do devise and order that all my debts shall be punctually and regularly paid. In the next place I dispose of my fortune in the following manner, vizt. I give and bequeath to Richard Berry the five following negroes. vizt. negro Sybert, negro Toby, a negro wench called Pegg with he offspring consisting of two boys, Edenburg and Herry. To Jeremiah Berry, son of Richard, I bequeath five hundred acres of land which I hold in joint tenancy with Thos Contee and Rezen Beall laying in the County of Greenbrier and State of Virginia. Likewise to Jeremiah Berry, son of the late Reverend Jeremiah Berry, the same quantity of the same land, that is to say, five hundred acres. To William Berry, youngest son of the late Reverend Jeremiah Berry, five hundred acres of the same land. To Mildred Berry, Jemima Berry, & Polly Berry one hundred pounds each. To Letty Marshall a negro wench named Verlinda and her daughter Lucy. And with regard to the remainder of the estate that God hath blessed me with I devise and bequeath it, both real and personal, to a natural son by a certain Ann Warman, now by marriage Ann Benson, who was regularly baptized by the name of William Berry Warman. Whereas there are three thousand acres of land belonging to me on the Ohio River & I have disposed of fifteen hundred acres of the same & I intend one thousand for my son above mentioned, my desire and intention is that the remaining five hundred acres shall go and be given to Walter Mory Chandler and his heirs forever. William Berry
Signed, sealed, published, and delivered as the last will and testament of William Berry before the following witnesses this 2d June 1784.
John Steuard, John F.A. Briggs, Arch'd Boyd, Thomas Marshall.
On the back of which was thus written: Prince George's County, August 30th, 1784, then came John Steuart, John F.A's Briggs, Archibald Boyd, and Thomas Marshall, the four subscribing witnesses to the within last will and testament of William Berry, late of Prince George's County, deceased, in their proper persons here in court and severally made oath on the Holy Evangels of Almighty God that they did see the testator therein named sign and seal this will and that they heard him publish, pronounce, and declare the same to be his last will and testament, that at the time of his so doing he was to the best of his apprehension of sound and disposing mind, memory, and understanding, and that they respectively subscribed their names witnesses to this will in the presence and at the request of the testator and in the presence of each other.
Hugh Lyon, D. R. W. P. G. Coty
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