Last Will, New Testament
The search for the story behind the will that set Terry Franklin’s ancestors free
Published in 2018 Southern California Super Lawyers Magazine on February 12, 2018
The most meaningful search in Terry Franklin’s life began at a family reunion in Chicago in 2001.
“One of my relatives had typed up—using a cursive font, to create the impression of something handwritten—an excerpt from the will ... emancipating my fourth-great grandmother, Lucy Sutton,” says Franklin, 54, an estate and trust litigator at Sacks, Glazier, Franklin & Lodise in Los Angeles.
Not just emancipating her, either. In that will, dated January 1846, John Sutton, a white farmer living near Jacksonville, Florida, also freed her eight children, and six grandchildren.
“Until 2001, when I first saw it in the reunion materials, no one had said anything about it at all. It was a shock,” says Franklin. “Here’s this white slave owner who owned Lucy and her children and grandchildren. We had no idea what kind of relationship to assume beyond that.”
Franklin grew up on the South Side of Chicago and attended Whitney M. Young Magnet High School, where he had French class with a young Michelle Robinson—about 12 years before she married Barack Obama.
“Michelle and I were friendly there and later at Harvard Law School,” Franklin says. “I think we both took dance at Mayfair Academy on the South Side. I took tap, she took ballet.”
Franklin loved theater, but pursuing a career as an actor seemed too risky. “I felt an obligation to my family, church and community to be successful. And from what I knew, that meant doctor, lawyer, professor,” he says. “So I figured, ‘OK, I’ll be a lawyer and pattern myself after Thurgood Marshall.’”
Before that could happen, though, his brother discovered a letter indicating Franklin was gay. Confronted, he pivoted slightly, telling his family he was bisexual. “I honestly thought that,” he says. “I tried to choose a straight life. Believe me, I know that this is not a choice, but there were enough personal and societal pressures that I was able to convince myself that I could live a different way.”
For a while, he did. At Harvard, he met his future wife. They shared the same birthday, and, for 24 years, a life together. Their two daughters are now actresses—the career Franklin denied himself.
But by 2010, he’d had enough of denial. “I looked at the calendar and at myself—46 years old, and my life had been spent living other people’s expectations,” he says. After the divorce, he and his ex remained close; a few months later, Franklin met his partner, Jeffrey Moline.
As for the Sutton will? His interest in it renewed in anticipation of his Great Aunt Viola’s 100th birthday in 2014.
The will stipulated that Lucy and her family be set free and sent “where they and their children could live free forever.” The trustee, William Adams, whom Franklin believes was Lucy’s half-brother, was directed to sell all of John Sutton’s possessions (livestock, furniture) to fund the freedom ride. But what was Sutton’s relationship with Lucy? Franklin wanted to know if Sutton had a white wife and children, and, if so, why they were left out of the will. His gift to Aunt Viola would be to bring clarity to the family’s opaque past.
Thanks to an assist from the paralegal of a Florida-based colleague in the American College of Trust and Estate Counsel (ACTEC), he got a digital copy of the handwritten will. From it, Franklin learned Sutton had no white wife, and he couldn’t escape this thought: Was Lucy his partner?
“I believe that it is in the nature of human relationships to make the best out of the circumstances they’re dealing with,” Franklin says. “I believe they loved each other, and that’s why John emancipated Lucy and her family.”
But because he couldn’t know for certain, the book he began to write, The Last Will of Lucy Sutton, was a novel rather than nonfiction. “With a novel, I can get into their heads, share how they felt, what they were thinking,” says Franklin. “I should write what I know, and since I’m a trust and estates litigator, it should include a will contest, even though I had no reason to believe that such a thing happened.”
To help spur his imagination for the book, Franklin wanted to hold the actual documents in his hands. So in March 2015, after Franklin and Moline attended the annual ACTEC meeting in southwest Florida, they decided to drive across the state to Jacksonville.
A few weeks earlier, Franklin had read an article about the Equal Justice Initiative’s (EJI) efforts to establish historical markers for the 4,000 known lynchings that occurred in the U.S. So while Franklin drove, Moline used EJI information to chart the lynchings that happened in each county they crossed.
“We reached the Duval County courthouse 125 lynchings later,” says Franklin.
The file with the will was about the size of a clutch purse. Its very existence seemed a miracle. The Great Jacksonville Fire of 1901 destroyed most court documents in Duval County, but a few survived when a clerk loaded them onto a boat that made it safely across the St. Johns River.
As Moline shot video, Franklin opened it with trembling hands. The old wax seal was still a vibrant red. Beyond what he already knew was there, he kept finding additional pages: an inventory, an appraisal, court documents. He read for a while, then said, “This was a contested will!”
It was all there on tea-colored parchment—history imitating art imitating history. Just as Franklin had outlined a fictional storyline with one of Sutton’s brothers contesting the will, so John’s brother, Shadrack, actually did so—seeking to inherit Lucy and her family.
It might have worked, too. But Sutton had picked a good trustee and a good lawyer—whose testimony described the Suttons as a family, not as master and slaves. Judge William Crabtree upheld the will’s validity and ordered Shadrack to pay court fees.
Lucy and her family didn’t waste time. They sold the last cow, sailed from Savannah to New Orleans, then up the Mississippi to Southern Illinois and freedom—15 years before the start of the U.S. Civil War.
“I told Terry that it could be a beautiful work of creative nonfiction,” says historian Kate Clifford Larson, who has authored biographies of Rosemary Kennedy and Harriet Tubman. “Either way, it’s such a compelling story. He’s a terrific writer and the chapters I’ve read are amazing. It almost reads like a movie.”
Indeed, Franklin is also collaborating with Moline and writer John Meeks on the script of a proposed three-part miniseries about Lucy. (The three men previously collaborated on a script for a not-yet produced biopic called Sick!, about LGBT activist Barbara Gittings and her successful battle to remove homosexuality as a mental illness from the DSM-II.)
It’s been quite a journey; and it isn’t over yet.
“My experience these last few years has shifted my whole understanding of what history means,” Franklin says. “I’m an average person with history going on all around me. It makes me realize that I may have descendants, generations on, who may look back and ask, ‘What did he do to deal with oppression, or to make the world a better place? What did he do to prepare a place in this world for my own descendants?’ Yes, it’s an obligation, a responsibility. But it’s also empowering to know that the choices you make have meaning.”