Philander McCarter's Probate Records
Philander McCarter died intestate at age 67 on February 9, 1870. His death must have been sudden because just one month earlier he had purchased an additional 40 acres of land for his farm.
At the time of his death, his household in Ashe County, North Carolina included his wife Thurza, their grown children Andrew, James, George, Emily, their grandson Elbert, and their servant Phany.
Because Philander died without a will, Thurza was limited to lifetime use of just one-third of their land, also known as her dower. She could not sell this property without the consent of her children because it belonged to them as Philander's heirs, as did the other two-thirds of his land.
A portion of the land had to be sold to meet the estate taxes and debts, but what remained appears to have been about 910 acres on Little Helton Creek in both Virginia and North Carolina. The preliminary survey of Thurza's dower carved out "280 acres more or less" which, by law, included the dwelling house and outbuildings. In the official survey, her dower was valued at $2,241.66.
According to later records filed by her son, William, Thurza lived on the farm in Ashe County for another twenty-five years.
He stated that at the age of 86 his mother "becoming old and infirm and not able to give it her personal attention as it should be attended to, and all of her said children now being grown and married, in about the year 1895 she went to live with her son L. H. McCarter [Levi Hickman McCarter] and soon thereafter she sold her life estate in said dower land."
Map of the McCarter Heirs Land Partition
This 1874 map shows how the land was divided among Thurza and her ten children. According to the heirs petition for partition, Sarah and William had already sold their inheritances to their brothers Andrew and George as reflected in this map. (Andrew became George's guardian after Philander's death.)
|Emily McCarter Jones
Jane McCarter Cornett
| Andrew McCarter
H. F. McCarter
Van Buren McCarter
of Thurza McCarter's Dower
This map was not created at the time of partition, but some thirty years later when son William brought a suit against J. J. Thomas who had purchased Thurza's dower. William claimed that the land he sold his brothers after his father's death did not include his portion of his mother's dower. He was suing for ownership of one-tenth of this land.
Graybeal and McCarter Made Administrators
July 5, 1870
In the late nineteenth century the courts customarily appointed a male relative to administer a widow's estate because women were not thought capable of managing it themselves. The administrator was required to post a substantial bond, sometimes equal to the value of the estate, as a guarantee of both its proper management and preservation. In this case, Thurza was allowed to administer the estate along with Simeon Graybeal, neighbor and father-in-law of her daughter Sarah.
State of North Carolina
Know All Men By These Presents, That we Simeon Graybeal and Thurza McCarter are held firmly bound unto THE STATE OF NORTH CAROLINA, in the sum of twelve hundred dollars current money of this State; to the which payment well and truly to be made and done, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these Presents. Sealed with our seals, and dated this 5th day of July 1870.
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF
J. P. Waugh
W. F. Perkins
Oath of Simeon Graybeal
I Simeon Graybeal Do Solomnly swear upon the Holy Evangelist of almighty God that I will enter upon all and Singular the goods Chattles Wrights and Credits of Philander McCarter Deceased and the same to take in to possession when so ever to be found and pay all lawful debts of said estate and manage in all things so fare as is my power to the benefitt and advantage of said estate and obey all lawfull orders of the probate court so help me god.
Thurza McCarter's Petition for Her Dower
July 6, 1870
Despite the appearance of an adversarial proceeding, Thurza McCarter vs. The Heirs of Philander McCarter was the standard form of law. In this petition Thurza was requesting that her dower be carved from the lands of Philander's estate. As mentioned above, a dower was one-third of the estate to which a widow was given lifetime use, but which legally belonged to the heirs (her children).
She also requested that Andrew be made the guardian of George, still a minor at 18, because widows in North Carolina were not allowed to administer the estates of their minor children until 1883.
The Heirs of Philander McCarter
Petition for Dower
Superior Court of Law for Ashe County, N.C.
To the Judge of said Court the petition of Thurza McCarter and others respectfully showeth unto your Honor that she is the widow of Philander McCarter late of said county who died intestate 9th February 1870 seized and possessed of two certain tracts or parcels of land  one lying in Ashe Co. and Grayson Co. Virginia on the waters of Little Helton adjoining the lands of John Weiss and others containing about seven hundred and fifty acres, and  one or two tracts on the Iron Mountain in Grayson and Smith Co. Virginia on the waters of Holston and Elk Creek adjoining the lands of John Fisher and others containing one hundred and sixty six acres which said lands at his death descended at law to wit: L. H. McCarter, M. V. B. McCarter, M. Cornett and wife Jane, A. C. McCarter, Wm. McCarter, Emily McCarter, Franklin McCarter, James P. McCarter, Monroe Graybeal and wife Sarah, and George C. McCarter the last named a minor.
Your petitioner prays that an order be issued to the Sheriff of said county of Ashe commanding him to summon five freeholders unconnected with the parties by consanguinity [blood relation] or affinity to go upon the premises and lay off by metes and bounds one third of said lands to the petitioner as her dower and report to this office in thirty days and that you appoint Andrew C. McCarter Guardian of George C. McCarter and your petitioner as in duty bound will ever pray.
Preliminary Survey Thurza McCarter's Dower
July 16, 1870
This was the first of two surveys of Thurza's dower allotting her approximately 280 acres.
State of N.C., Ashe County
We the undersigned Jurors after being summonsed and duly qualified to lay off and allot to Thurza McCarter, Widow of Philander McCarter, one third part of the Lands of her (dec) husband, and do assign to her the following boundary.
Beginning as follows, 1rst at John Wisses [Weiss's] line and Shippies [Shippy's] Branch, then with Wisses line to the first cross fence running south west crossing the creek running a strate line to the top of the ridge to Pennington's line, then with the ridge with (sd) Pennington's line to the road in the gap, then down the road running east to the drawbars, then running with the cross fence to the top of the ridge, then with the fence to a white oak corner, then running to the mouth of Shippies Branch then with (sd) Branch to the first Station so as to include Two hundred and Eighty Acres more or less.
H. P. Eller
M. L. Mikel
J. W. Latham
Thurza McCarter's Allotment of Provisions
August 20, 1870
Under North Carolina law, provisions were set aside to support a widow and her minor children for one year. The value of Thurza's allotment was $300. The remaining $500 in personal property had to be sold to pay the estate taxes and debt.
Later documents mention a full inventory of Philander's personal property which is missing from the probate file.
State of N. Carolina
We the undersigned commissioners being duly sworn met on the premises of Philander McCarty [McCarter] (Deceased) after being legally sworne proceeded to alot and layout one year's provisions for the widow Thursy McCarty to the amount of (300) three hundred dollars consisting of the following.
|300 lb of Bacon||
|20 bu of Corn||
|20 bu of damaged Corn||
|6 bu of Wheat||
|5 bu of Rye||
|1 Baker & led cook pot & skillets||
|1 Bed Sted, Bed & Bed covering||
|1 Brass Kettle||
|2 Cowes & 3 Calves||
|1 Rone mare 15-year-old unsound||
|1 Bay mare 17-year-old big foot||
|8 hogs, 1 Safe||
|30 bu of Wheat, 50 bu of Rye||
|10 hed of Sheepe ($10), 30 lb of Wool||
Whereas we set our hands This 20th day of August 1870.
S. Pennington J.P.
Petition to Sell Personal Property for Debts
September 19, 1870
The need for this petition is somewhat unclear. It appears that most of Philander's personal property had already been sold in an attempt to meet the estate tax, but Simeon and Thurza were petitioning to sell what remained.
Simeon Graybeal and Thurza McCarter
To the Probate Judge of Ashe County. The petition of Simeon Graybeal and Thurza McCarter admn and admnx of Philander McCarter respectfully show that there is a small quantity of personal estate yet unsold and that there is a large tax against the said estate and no money on hand to pay it and the Sheriff is about pursuing for his taxes. We therefore pray that you allow us to sell said property for cash to meet the said tax and other necessary expenses.
Official Survey of Thurza McCarter's Dower
September 19, 1870
This is the official survey of Thurza's dower giving more detailed boundaries and assessing the value of the land.
State of North Carolina, Ashe County
To the Hon. J. L. Henry
Judge of the Superior Court in Said County
May it Please your Honor
Pursuant to an Order of the Probate Court of said County dated 19th of September 1870 in which it is directed that Five Freeholders as Commissioners go on the lands of Philander McCarter decd [deceased] and lay off in value one third of all the lands of which said Philander McCarter was seized and Possessed at the time of his death. We the undersigned Commissioners after having accepted a Summons and being duly Sworn and after having valued said lands to the best of our Judgement we proceeded on this day to lay off and allot to Thurza McCarter the Widow of Said Philander McCarter the following described Parcel of land as her Dower in said lands.
Beginning on a stake where the road crosses Little Helton Creek running with said road to Shippy's Branch, thence up the same to John Weiss's line, thence with the same to the outside fence, thence in a straight line to a sapling near a branch near the north west corner of the old Graveyard field, thence in a straight line in a Southwest direction to a stake in a field in the gap of the ridge, thence west fifty five poles to a stake, thus South to a stake at the Pennington Road, thence with the same in an easterly direction to a stake near the Spring Branch and west of the same, thence leaving the Road and with the Cross fence west of the Spring house to the head of the branch, thence with the Cross fence in an easterly direction continuing in a straight line from the termination of said Cross fence to Little Helton, thence up the same to the beginning which we value at ($2,241.66 2/3) two thousand two hundred and forty one dollars and sixty six and two-thirds cents.
All of which we submit to your Honor
The 19th day of September
Thomas J. Aker
M. L. Mikel
John M. Black
S. Pennington, J. P.
Stephen Pennington, J. P. $1.00
Solomon Blevins $1.00
T. L. Aker $1.00
M. L. Michael $1.00
Jno M. Black $1.00
Samuel Plummer $1.00
Petition to Sell Land for Debts
May 20, 1872
After selling all available personal property, only $30 remained to meet the $350 still owed in estate taxes and debts. So Simeon and Thurza had to petition the court to sell some of Philander's land. Because the land belonged to the heirs, they had to be informed of the impending sale.
Simeon Graybeal and Others
Heirs of Philander McCarter
Petition to Sell Land
In the Supreme Court
May 20th, 1872
The petition of Simeon Graybeal admin and Thurza McCarter adminx of the Estate of Philander McCarter decd respectfully show that Philander McCarter died intestate in said county in the year 1870 seized and possessed of a considerable estate both real and personal. That your petitioners took upon themselves the burthen of administering said estate. That they have used all the available personal property which has come into their hands in the payment of debts of the intestate except about thirty dollars. That they have paid off and satisfied debts to the amount of between four and five hundred dollars. That the personal estate amounted to only some five hundred dollars as will meanfully appear from the inventory.
That there are still debts outstanding against the said estate amounting to about three hundred and fifty dollars and that your petitioners have nothing more than herein stated to pay the same with.
That at the time of his death the said Philander McCarter was seized of a large body of land situate in said county and in the county of Grayson in the state of Virginia on the waters of Helton Creek adjoining the lands of S. Pennington, Thos Wayman and others which said lands descended at his death upon his heirs at law to wit: Levi, M. Van Buren, William, Franklin, Andrew, James, Emily, George McCarter, Sarah Graybeal wife of Munroe Graybeal, Jane wife of Munroe Cornett of whom George above is a minor and Andrew McCarter his guardian.
Levi, M. Van Buren, William, Franklin, James McCarter, Munroe Graybeal and wife Sarah, and Munroe Cornette and wife Jane are nonresidents of this state.
That in order to constitute assets in his hands to pay the said debts still outstanding it is necessary to sell all or a portion of said lands for that purpose.
Your petitioners therefore pray that a summons is sent to each of the said resident defendants and that publication be made in some newspaper commanding the said nonresidents to appear and answer this petition and that you will order the same to be sold at such time and place as you may deem most conducive to the interests of the parties that plaintiffs may have funds sufficient to satisfy all demands that may be lawfully shown to exist against said estate.
Simeon Graybeal being sworn says the facts set forth in this petition [are] those of his own knowledge and he believes to be true. Sworn to before me the 20th May 1872.
Robt Parsons C.S.C.
Simeon Graybeal Adm.
Summons of the Heirs
August 27, 1872
Thurza's children residing in Ashe County, North Carolina are summoned to appear in court regarding the sale of some of their father's land to meet estate debts.
State of North Carolina
In the Supreme Court
To the sheriff of said county greeting. You are hereby Commanded to Summon Andrew McCarter, Emily McCarter, George McCarter (his Guardian is Andrew) that they personally appear before the Clerk of the Superior Court, at office, in the Court House in Jefferson, on the 2nd day of October 1872 [Fall Term] to answer a petition filed by Simeon Graybeal and others against them as heirs of Philander McCarter (Due to sell land for assets in the hands of the Administrators).
Herein fail not, and of this precept made due return.
Issued this 27th day of August 1872.
Clerk of Superior Court
McCarter Heirs Petition for Partition
May 28, 1873 with 1896 Addendum
Over three years after their father's death, with their mother's dower having been set aside and the estate taxes and debts having been paid, the children petition the court for their inheritance.
State of North Carolina
L. H. McCarter & Others
May 28th 1873
Petition for Partition
The petition of L. H. McCarter, V. B. McCarter, A. C. McCarter, W. A. McCarter, H. F. McCarter, James McCarter, George McCarter, S. M. Cornett & wife Jane, Monroe Graybeal and wife Sarah, and Emily McCarter.
Respectfully show that in the year 1870, Philander McCarter died intestate leaving your petitioners his heirs at law except S. M. Cornett and Monroe Graybeal who married each one of the said heirs.
That at the time of his death the said Philander McCarter was seized and possessed in fee of a large amount of land to wit about six hundred acres lying on the waters of Helton Creek in Ashe County and in Virginia the larger part being in Ashe County to wit about 400 acres which descended to the petitioning heirs aforesaid who hold the same as tenants in common.
That since the death of said Philander the petitioner V. B. McCarter has sold his interest in the said land to S. M. Cornett, and William A. McCarter has sold his entire interest to Andrew C. McCarter, and that Munroe Graybeal & wife Sarah have sold to Andrew C. McCarter their entire interest therein.
Your petitioners therefore pray that you will appoint them commissioners who are unconnected with the partition to go upon the premises and partition the same among your petitioners according to their respective rights and interests in the premises to wit to L. H. McCarter one tenth, to H. F. McCarter one tenth, to James one tenth, to George one tenth, to Cornett & wife two tenths, and to Emily one tenth and charge the more valuable shares with such sum of money as may be necessary to make the shares equal in value and report the same to this court that the petitioners may be put in possession of their respective shares.
[A.C.'s three tenths do not appear in petition, but do show in following court order.]
State of North Carolina
In the Superior Court
L. H. McCarter & others
This cause coming and to be heard upon petition etc. ordered that William Baker Esqr., David Dickson Esqr., and John Block, Esqr, be appointed Commissioners to go upon the premises mentioned in the petition. To wit: six hundred acres of land whereas Philander McCarter family lived in the County of Ashe on the waters of Helton, and make partition of same among the heirs of the said Philander McCarter according to their respective rights to wit: To L. H. McCarter one tenth, to A. C. McCarter three tenths, to James McCarter one tenth, to H. F. McCarter one tenth, to George McCarter one tenth, to S. M. Cornett & wife two tenths, and to Emily McCarter on tenth in manner as will best serve the interests of the parties and change the more valuable partitions into such sum of money as will make their several share equal in value and report to this Court.
Robert Parsons Clerk
August 3, 1896 Addendum
Report of Courts who divided the land is recorded in old minute docket binding with Fall Term 1874 p. 482 calls for division of dower.
If it is not confirmed let me _____ confirm it & say:
This report having been on file for a long time, and no exception appearing to have been filed against its confirmation nor any objection made or shown why it should not be confirmed, now an motion of W. C. Fields, Atty for J. H. Thames the purchaser for the petitioner. The report is in all things confirmed and ordered to be recorded this the 3rd day of August 1896.
P. Blevins C. S. C.
This order is recorded in the book of orders and decrees page 72.
Partition of Philander McCarter's Lands
April 23, 1874
Division of Philander McCarter Decd. Lands
Register Book X, Pages 519-522
State of North Carolina
To the Honorable Anderson Mitchell
(Judge of the Superior Court of Said County)
May it please you Honor
Pursuant to an Order of said Court bearing date the _____ day of _____ A.D. 1873 in which it is directed that we your undersigned Commissioners go on the lands of Philander McCarter (decd) and lay out and Partition the same as in said order we are directed.
You Commissioners would therefore report as follows. We went on the lands and after assessing the value of the same, we proceeded to lay off said lands into (10) ten different Lots and then determining each ones share of Lot as follows.
To Emily McCarter
[Lot 1, 62 1/2 Acres, Value $400]
Beginning on a White oak in the old Anderson line and corner of Lots 2 & 3, N 45 poles to a stake in a line of the Widow's Dower with the lines of the same, N 85º E 20 poles to an Ironwood on the east bank of Little Helton Creek, thence up the creek N 9º E 30 poles to a beech and some dogwoods, N 10º W 22 poles to a stake in the ford of the creek where the Pennington road crosses the same, thence leaving the creek & with the road N 14º E 28 poles to a stake E 28 poles to a Locust on the bank of Shipps branch, thence up the branch N 6º E 58 poles to a Maple and _____, thence leaving the Dower line and with the old lines S 45º E 14 poles to a white oak in the recent recognized Virginia & North Carolina line, thence S 150 poles to a stake near the bank of Little Helton, W 2 poles to a horn bean at the mouth of Shipps branch, S 10º E 45 poles to a stake where a water oak is called for in the old Deed, N 77º W to a white oak on the top of a ridge, thence leaving the old line and with the line of George McCarter's Lot, N 37º W 48 poles to the Beginning.
To George W. McCarter in his own rights and as Assignee of William McCarter
[Lots 2 and 4, 132 Acres, Value $800]
Beginning on a white oak at corner of lots 1 & 3 S 87 1/2º W 154 poles to a stake near a chestnut, N 30º E 53 1/2 poles to a white oak a corner of the Widow's Dower with the same, N 40 poles to a Spanish oak and black oak saplings, thence leaving the Dower and with the same N 40 poles to a Spanish oak and black oak saplings, thence leaving the Dower and with Andrew McCarters Lot W 136 poles to a stake in the old line with the same, S 10º E 26 poles to two Spanish oaks S 25º E 47 poles to a chestnut, S 4º E 47 poles to a chestnut in Stephen Penningtons line N 81º E 30 poles to two Hickories, S 70º E 33 poles to three maples Browns corner, N 84º E 55 poles to a locust stump a corner of the Anderson Tract, S 53 1/2º E 21 1/2 poles to a white oak Thomas Wayman's Corner, N 76º E 145 poles to a white oak, E 9 poles to a white oak on the top of a ridge and corner of Lot No. 1, thence with Lot No. 1 N 37º W 48 poles to the Beginning.
Said Lots 2 & 4 join one of which we allot to said George McCarter in his own right and the other to him as assignee of Wm. McCarter said lots contain jointly 132 acres valued at $800.
To Monroe Cornett & wife Jane McCarter
[Lot 3, 50 Acres, Value $380]
Beginning on a white oak a corner of a corner of Lots 1 & 2 S 87 1/2º W 154 poles to a stake near a chestnut, N 30º E 53 1/2 poles to a white oak and maple by the Pennington road, thence with the road and lines of the Dower, N 73º E 53 poles to a stake near a rock, N 55º E 40 poles to a stake near a rock, N 55º E 40 poles to a stake near the Springhouse branch, thence up the same S 20º E 36 poles to a stake at the head of the same, N 85º E 35 poles to a stake, thence leaving the Dower and with a line of No. 1 S 40 poles to the Beginning.
To Andrew McCarter in his own right and as assignee of Monroe Graybeal & wife Sarah McCarter
[Lots 5 & 6 adjoining, 106 1/4 Acres, Value $810]
Beginning on a Locust in a field a corner of the Widow's Dower S 31º W 70 1/4 poles to a stake in a field S 61º W 55 poles to a black oak and Spanish Oak saplings, thence leaving the Dower W 136 poles to a stake in the old line, N 10º W 16 poles to two Chestnut oaks on old corner with the old line, N 60º W 70 poles to a stake near a chestnut oak on a high point, N 78º E 280 poles to a stake in a field and corner of the 7th Lot, N 62º E 53 1/4 poles to a Chestnut in John Weiss's line with the same, S 22 poles to a Spanish oak, S 50º E 7 poles to a Spanish oak, S 75º E 5 poles to a stake where the fences join, S 62º W 60 poles with a line of the Widow's Dower to the Beginning.
To Levi McCarter
[Lot 7, 52 Acres, Value $410]
Beginning on a stake in a field S 77º degrees W 288 1/2 poles to a cucumber to Kilby's line S 77º E 8 poles to two chestnut oaks on old corner S 60º E 14 poles to a stake near a chestnut on a high point N 78º E 280 poles to a stake in a field N 62º E 53 1/4 poles to a chestnut in John Weiss's line N 27º W 30 poles to a white oak, S 62º W 53 poles to the Beginning.
To Franklin McCarter
[Lot 8, 56 3/4 Acres, Value $400]
Beginning on a stake in a field a corner of Levi McCarter's Lot S 77º W 288 1/2 poles to a cucumber in Kilby's line N 70º W 16 poles to a chestnut in the state line E 20 poles to a chestnut N 12º E 1 1/2 poles to a stake near a chestnut bush N 76 1/2º E 260 poles to a stake in a corner of the 9th Lot, N 62º E 52 poles to a Hickory in John Weiss's line, S 27º E 31 1/2 poles to a white oak S 60º W 53 poles to the Beginning.
To James McCarter
[Lot 9, 55 1/8 Acres, Value $400]
Beginning on a chestnut on the top of a high ridge and corner of Kilbys line also a corner of the 10th Lot, thence for a division line between the 9th and 10th Lots, N 78º E 252 poles to a stake in a field a corner of the 9th and 10th Lots, N 62º E 51 and 1/2 poles to a chestnut oak in John Weiss's line, S 27º E 28 poles to a hickory S 62º W 53 poles to a stake in a field, a corner of the 8th Lot and with the same S 67 1/2º W 260 poles to a stake near a chestnut bush in said Kilbys line with the same N 12º E 42 poles to the Beginning.
To Van Buren McCarter
[Lot 10, 89 Acres, Value $400]
Beginning on a chestnut on the top of a high ridge a corner of Kilbys land and Beginning corner of the 9th Lot (James McCarter's) N 45º W with the old line 53 poles to a Hickory near the Stable branch and corner of Levi McCarters and said Kilbys lands, thence down the branch with Levi McCarter's lines N 80º E 34 poles to a Beech S 80º E 76 poles to a stake, N 70º E 26 poles to a pine stump at the mouth of said branch and on the bank of Little Helton, thence up the creek with the several courses of the same, North 26º W 33 poles to a stake N 16 poles to a stake, thence leaving the creek E 8 poles to a white oak and chestnut oak among some rocks, thence N 19º E 132 poles to a large white oak on the top of Brown's ridge S 10º W with John Weiss's line 33 poles to a Locust said Weiss's corner with his lines S 15º E 155 poles to a white oak near the corner of the Wheeler field N 85º E 52 poles to a white oak S 27º E 5 poles to a chestnut oak a corner of the 9th Lot (said James McCarter's) with the lines of the same S 62 W 51 and 1/2 poles to a stake in a field, thence S 78º W 250 poles to the Beginning.
A diagram of which lots we herewith annex to our Report.
That Andrew McCarter pay to Monroe Cornett & Jane his wife $10. And also that Levi McCarter pay to said Monroe Cornett and wife $10 in order to make said Cornett and wife equal with the rest of the heirs of said Philander McCarter in the Partition of said Lands. There is no known valuable Minerals on said Lands and we consequently have fixed no estimate on account of minerals.
The 23rd day of April A.D. 1874.
All of which we respectfully submit to your Honor.
John M. Black (seal)
Wm. Baker (seal)
David Dickson (seal)
On October 7, 1872, two years before Philander's land was officially partitioned among the heirs, William sold his share to his brothers Andrew and George.
After the untimely death of his wife Ellen in Kansas, William returned to Virginia where he was enumerated in his brother Levi's household in 1900. In the spring of 1901, he sued J. J. Thomas, the new owner of his mother's land, for his 1/10th share of his mother's dower. He claimed that the land he'd sold his brothers thirty years earlier was his inheritance from his father only and did not include his rightful portion of his mother's dower.
George produced a title bond showing that William had sold them his entire interest in the estate. William lost his suit, but may have recovered what was owed to him by his brother Andrew.
W. A. McCarter vs. J. J. Thomas, Complaint
W. A. McCarter, Plaintiff
State of North Carolina
The plaintiff complains of the defendant and alleges.
I. That Philander McCarter was a resident of Ashe County, North Carolina for some years prior to 1870 and lived upon, owned, and was seized and possessed of the hereinafter described land.
II. That he died in about the year 1870 and left surviving him his widow Thursy McCarter and his children hereinafter named who were his only heirs at law, to wit: L. H. McCarter, V. B. McCarter, Jane who prior to his death had intermarried with S. M. Cornett, A. C. McCarter, Emily F. a daughter who prior to her father's death had intermarried with Ambrose Jones, J. P. McCarter, G. C. McCarter, H. F. McCarter, and Sarah a daughter who intermarried with Monroe Graybeal just before or just after her father's death, and W. A. McCarter the plaintiff.
III. That the lands of which said Philander McCarter died seized and possessed in Ashe County were in one body but in different tracts -- one tract was conveyed to him by deed dated February 23, 1865 by John H. Whitman and which said deed is registered in Register Deeds office in the County in Book V. page 139 and the same is here referred to and made a part of this complaint and copy of same is hereto attached marked Exhibit A. Another tract conveyed to him by deed by John H. Whitman & wife Celie dated 10th day of Jan 1870 and is registered in said Register of deeds office in book W. page 344 and same is referred to and made a part of this complaint and copy of same is hereto attached marked Exhibit B and other lands were conveyed to him about the same time lying adjoining the above described lands, but lying in the state of Virginia.
IV. That the said widow Thursey McCarter was living with her said husband on said land occupying them all as a home at time of his death and she continued to live upon occupy and use the same after his death.
V. That by common consent between the said Thursy McCarter and some of the heirs of said Philander McCarter and assented to by all of them, she chose certain men to lay off to her certain of said lands and farm as and for a dower, and the same were laid off to her by metes and bounds as and for a dower on the day of Sept. 18, 1870 being on the day of the first sale of personal property of Philander McCarter's estate to wit:
Beginning on a stake in Little Helton Creek where the Pennington road crosses it and running thence with the road North 14° E 28 poles to a stake, then E 28 poles to a locust on the bank of Shippys branch, thence up the branch N 6° E 58 poles to a maple and a serais, then N 25° W 14 poles to a Locust on East side of the branch, then S 80° W 34 1/2 poles to two white oak stumps, then N 75° W 13 poles to a stake where the fences join, then S 62° W 60 poles to a Locust near a branch, then S 31° W 70 1/4 poles to a stake in a field, then S 61° W 55 poles to a Black oak and a Spanish oak sapling, then S 40 1/4 poles to a white oak and a maple at the Pennington road, then with the road N 73° E 52 poles to a stake in the road near a rock, then N 55° E 40 poles to a stake near the Springhouse, then up said branch and west side of same S 20° E 36 poles to a stake at the head of the branch, then N 85° E 55 poles to an Ironwood and the East branch of Little Helton, then up the same N 9° E 30 poles to a beech and some dogwoods, then N 10° W 22 poles to the Beginning.
And that she continued to live upon the said boundary and to possess it, control it and occupy it with absolute control and ownership of it until about the year 1895. That during and up to this time no other person assumed to control this said land nor to claim it except subject to her life estate and subject to her right to it for her life as her dower in the Philander McCarter lands except four-tenths interest in said dower which she sold to L. H. McCarter on the day of _____ 18_____ and in this conveyance to him she only conveyed her life estate.
VI. That becoming old and infirm and not able to give it her personal attention as it should be attended to, and all of her said children now being grown and married in about the year 1895 she went to live with her son L. H. McCarter and soon thereafter she sold her life estate in said dower land to J. J. Thomas the defendant he having bought the interest of same said heirs in same farm and land.
VII. That the said Thursy McCarter, said widow of Philander McCarter died in the year 1898.
VIII. That on the 23rd day of April 1874 the said heirs of Philander McCarter as tenants in common in said lands partitioned among themselves by special proceeding in the Superior Court of this county the said lands of Philander McCarter all outside of said dower but did not partition the land so occupied by said widow as aforesaid as her Dower but all the time recognized it as hers and as her dower in her deceased husband's land.
IX. That the plaintiff was a tenant in common in said lands with the residue of the Philander McCarter heirs as set out in paragraph 1 of this complaint from the death of his father subject to the dower right and dower of said widow.
X. That the defendant is in possession of said dower land described by courses and distances here in before claiming the same as his own under deeds from some of the said heirs of Philander McCarter but not under any deed from this plaintiff made to him or anyone else.
XI. That plaintiff is the owner of fee of a one tenth undivided interest in the said dower land described particularly in paragraph V. of this complaint, and is a tenant in common therein with the defendant and entitled to the immediate possession thereof with defendant and to be let into possession thereof with defendant he being the owner as plaintiff is informed now.
XII. That defendant claims the whole of said dower land and holds the same adversely from this plaintiff and refuses to let plaintiff into possession of his said one tenth interest and by such adverse claiming and holding by defendant he has ousted plaintiff from his said rightful interest.
XIII. That plaintiff had no knowledge that the defendant was claiming the whole land and claiming to hold adversely to plaintiff until about the 5th day of February 1901 on which day he went to defendant and demanded of him and asked him to be let into possession of his said one tenth undivided interest in said Dower land with the defendant which defendant refused to do and declined to permit.
Wherefore plaintiff prays
1st That he be declared the owner in fee of a one tenth undivided interest in the said dower land described in paragraph X of this complaint.
2nd That he be decreed the immediate possession of his said one tenth interest and have Judgment putting him into possession of his said interest with defendant.
3rd That all other and further special and general relief be accrued him to which he is shown to be entitled.
G. L. Park and W. C. Fields
Attys for Plaintiff
John H. Whitman Deed to Philander McCarter
This indenture made this 23rd day of February one thousand eight hundred and sixty five between John H. Whitman of the County of Ashe, State of North Carolina of the one part and Philander McCarter of the County of Grayson and state of Virginia of the other part.
Witnesseth that for and in consideration of the sum of twelve hundred dollars in hand paid unto the said Whitman by the said McCarter the receipt whereas to the said John H. Whitman doth bargain sell and convey unto the said McCarter a certain tract of land containing four hundred and fifty acres be the same more or less situated in the County of Ashe in the waters of Little Helton.
On the west side of a large swamp on little Helton supposed to be at or near the State running South 78° East one hundred and fourteen poles to a hickory and black oak sapling, thence North 52 poles to a Spanish oak, thence South 75° east sixteen poles to two white oaks, Carter's corner on the bounds of Shippe's branch, 15° East fourteen poles to a maple and _____ South 55° East sixteen poles to a white oak at or near the state line, thence South 150 poles to a horn beam at the mouth of Shippe's branch, South 10° East 44 poles to a water oak, thence North 57° West 40 poles to a white oak on top of the ridge above Thomas Wayman's house, thence North 22° West thence west 46 poles to a chestnut and chestnut oak sapling, thence South 63 ° West 106 poles to a locust on the top of hill, thence North 85° west 54 poles to three maples, thence north 90° west 30 poles to two hickories on the top of a nole [knoll] thence South 90° West 30 poles to a chestnut in Stephen Pennington's line, thence North 4° East with said Pennington's line to a chestnut Stephen Pennington's corner, thence north 26° west 40 poles to two spanish oaks, thence North 60° west 84 poles to a chestnut oak in the State line, thence with the state line to the first station.
Together with all woods, waters, mines - minerals to have and to hold unto him the said McCarter and his heirs free and assigns, to warrant and forever defend against all other claims unto the said Philander McCarter him and his heirs and assigns in witness whereas I have set my hand and sealed, signed, and delivered in the presence.
John H. Whitman (Seal)
Jesse F. Parsons
John H. Whitman Deed to Philander McCarter
This indenture made this the 10 day of Jan. 1870 between John H. Whitman and Celia his wife both of the County of Grayson, State of Virginia of the part and Philander McCarty of the County of Ashe and the State of North Carolina of the other part.
Witnesseth that for and in consideration of the sum of Five hundred dollars in hand paid to the said John H. Whitman by the said Filander McCarter's note of hand whereas he the said John H. Whitman doth bargain sell and convey a certain tract of land containing forty acres the same more or less unto Filander McCarty his heirs and assigns lying and being in the county of Ashe, state of North Carolina on the head of the Walnut Branch.
Beginning on a small _____ white oak running north 75° East 140 poles with a conditional line between Timothy Perkins and Thomas Wayman to a white oak thence north 22° West 33 poles to a chestnut and white oak thence west 46 poles to a chestnut and chestnut oak, South 63° West 106 poles to a locust thence to the first station together with all woods, water, mines, and minerals to have and to hold unto him the said Filander McCarter and his heirs he the said J. H. Whitman doth bind himself his heirs and assigns to warrant and forever defend the aforesaid tract of land against all other claims whatsoever to the said P. McCarter his heirs and assigns, in witness whereof I hereunto set my hand and seal the day and date above written.
Signed, sealed, and delivered in the presence of
John H. Whitman (Seal)
Celia (her X mark) Whitman (Seal)
W. E. Perkins
W. A. McCarter vs. J. J. Thomas, Answer
Spring Term 1901
W. A. McCarter, plaintiff Answer
J. J. Thomas, defendant
The defendant in this action answering the complaint of the plaintiff says:
1. He admits to the first allegation.
2. He admits to the second allegation.
3. He admits to the third allegation.
4. He admits to the fourth allegation.
5. He denies the second allegation as therein stated.
6. He admits the sixth allegation.
7. He admits the seventh allegation.
8. He denies the eighth allegation.
9. He denies the ninth allegation
10. He denies the tenth allegation as therein stated.
11. He denies the eleventh allegation.
12. He admits to the twelfth allegation except as to any wrongful ouster of plaintiff.
13. The thirteenth allegation is admitted.
Defendant alleges in bar:
1. That the plaintiff conveyed all his interest in the lands described in the complaint to his brothers George C. McCarter or A. C. McCarter or both who in turn conveyed to this defendant.
2. That the deed of conveyance from said plaintiff to the said George C. McCarter or the said A. C. McCarter or both has been lost.
Defendant therefore prays the court that the deed from plaintiff to said Geo C. McCarter or A. C. McCarter or both be decreed as to have existed; that under it plaintiff conveyed away all his interest in the said land; and that the defendant be declared the owner of the land described severally and not in common with said Wm. McCarter, and that defendant recover his costs.
R. A. Doughton and Todd & Pell
Attorneys for Defendant
Deposition of John M. Black
May 2, 1901
W. A. McCarter
Pursuant to the annexed commission to me directed, I James P. Perkins commissioner, under the authority thereof, on the 2 day of May 1901 at Helton Post Office in Ashe County North Carolina, both plaintiff and the defendant being present in person proceeded to take the deposition of John M. Black who being first duly sworn to speak the truth between the said plaintiff and defendant deposes and says.
|1. What is your name, age, occupation, and place of residence?|
|John M. Black, 68 years, Farmer, Bernice Ashe Co., N. C.|
|2. Do you know the parties plaintiff and defendant and are you relate to either party, if so what relation?|
|I know the parties. I am not related to the parties. Further, I have no interest in the matter in Controversy.|
|3. Please state whether or not you know anything of the estate of Philander McCarter, deceased, if so please state all you know about it?|
|As to the real estate of Philander McCarter lying in Ashe County, N. C. and Grayson County, Va which said lands are adjoining and on the waters of Little Helton Creek containing something over seven hundred acres. With said lands I think I am very conversant as I have known them for nearly forty years.|
|4. What was done about and with these lands after the death of Philander McCarter?|
|1st the Dower of Thurza McCarter, widow of said Philander was laid off the 19th day of September 1870 by Johnson Perkins, Stephen Pennington, myself and others as Commissioners to allot said Dower.|
|5. Please state what was done with and concerning the remainder of the lands of Philander McCarter after the dower was allotted to Mrs. Thursa McCarter?|
|They were partitioned among the Heirs of said Philander McCarter by Wm. Baker, David Dickson and myself as Commissioners. A report of which we duly filed with the Clerk of the Superior Court of Ashe County.|
|6. Please state whether or not the dower of Thursa McCarter was partitioned among the heirs of Philander McCarter in the division above referred to?|
|I have not the Report nor a copy of the same before me. My recollection is we did not run any of the Partition lines through the Dower and consequently the Dower was not Partitioned.|
|7. How many shares were there in the estate allotted and what was each lot valued at in said division?|
|My recollection is that there were ten lots and that they were valued at four hundred dollars each.|
|8. Who exercised control and possession of the dower of Thurza McCarter during her life time?|
|I cannot fully answer this question. I know that Thurza McCarter lived there until a few years before her death.|
|9. Please state whether or not you as commissioners to lay off widow's dower to Thursa McCarter ever made any report of the land allotted to said widow?|
|We did the same day we laid it off and handed said Report to Robert Parsons who was then Clerk of the Superior Court of Ashe County. Said Parsons being on the ground present while we were laying it off.|
|10. Please state whether or not you made a copy of the metes and bounds of the dower and give it to anyone?|
|I made a copy of the metes and bounds of the Dower and handed the same to said Thurza McCarter (here a paper's handed to me) which I say is the identical copy which I am willing to be filed as part of my deposition marked as Exhibit A.|
|11. State whether or not there was any objection on the part of anyone when the dower was allotted to Mrs. Thurza McCarter?|
|My recollection is there was none. I further state that I do not mean by this deposition to contradict the record as to the Dower of said Thurza McCarter nor the record as to the Partition of the lands of Philander McCarter nor any part thereof. And further this Deponent Sayeth not.|
John M. Black
The foregoing of John M. Black was sworn to and subscribed before me at the time and place mentioned above.
Jas R. Perkins, Commissioner
In this cause it _____ that a survey of the lands is necessary. It is ordered that John H. Cole make a survey of the Philander McCarter lands (all homestead lands), or so much thereof as either plaintiff or defendant desire and make such survey thereof or either party desires, and make a plot and return same such written report of his work to next term of this court.
E. W. _____
Survey of Dower
June 10, 1901
To July Term of
By virtue of an order of the Superior Court, Spring Term 1901. On June 10 & 11, 1901 we surveyed the lands in dispute between W. A. McCarter & J. J. Thomas, also W. A. McCarter & Avery Wood which consisted of the Dower of Thurza McCarter widow of Philander McCarter. Dower contains by estimation 96 acres of which J. J. Thomas now owns 86 acres & 150 square rods and Avery Wood owns 9 acres and 10 square rods. About 22 acres of said dower lays in Grayson County, Virginia.
A. V. Buttry
R. C. Yates
J. H. Cole, C. S.
Courses of Thurza McCarter's dower as surveyed on June 10 & 11, 1901 by J. H. Cole.
Beginning on a stake in Little Helton Creek where the Pennington road crosses it running N 14º E 28 poles to a stake, then E 28 poles to a Locust on back of Shippy's branch, then up said branch N 6º E 58 poles to a maple and service [tree], then N 25º W 14 poles to a Locust on the east side of said branch, then S 80º W 34 1/2 poles to two oak stumps, then N 75º W 13 poles to a stake, then S 62º W 50 poles to a Locust (about 5 poles from a branch), then S 31º W 70 1/4 poles to a stake in a field, then S 61º W 55 poles to a black oak and Spanish oak sapling, then S 33 poles to a white oak and maple at the Pennington road, the with said road N 48 1/2º E 7 poles to a stake, then with said road N 77º E 9 poles to a stake, then with said road N 69º E 5 poles to a stake, then with said road N 84 1/2º E 18 poles to a stake, then with said road S 84 1/2º E 4 poles to a stake. Then with said road N 56º E 8 poles to a stake at large rock, then N 55º E 35 1/2 poles to a stake at then Spring House branch, then up west side of said branch S 15 1/2º E 36 poles to a stake at the head of said branch, then N 85º E 55 poles to an Iron wood on the east bank of Little Helton Creek, then up said creek N 9º E 30 poles to a beech and some dogwoods, then N 10º W 17 poles to the Beginning.
The corner trees in the above dower are nearly all gone, but I consider it very close located by known boundaries.
J. H. Cole, C. S.
Deposition of George C. McCarter
W. A. McCarter
In the Superior Court
Interrogation by Defendant to be propounded to George C. McCarter by Commissioner Charles H. Lee of Louisburg, Kansas.
Fall Term 1901
W. A. McCarter
This cause coming on to be heard by the consent of the parties: It is adjudged that the plaintiff pay all the costs which have been incurred at his instance including cost of suing and recovers nothing of defendant and that defendant pay all the costs which have been incurred at his instance and that he recover nothing of plaintiff in this action. That all matters in dispute between the parties have been settled.
Todd & Pell, Attys for Defendant
G. L. Park, Atty for Plaintiff
W. B. Cornwall