|
|
|
Job Martin vs. Lackey Salisbury The Scenario It is impossible to tell the full story from the lawsuit. It appears that William Salisbury had an older will giving the bulk of his estate to his sons. For some reason, around 1832, he sat at his table and wrote a new one leaving everything to his three youngest daughters. He and his wife Elizabeth quarreled about this change of will. William apparently got angry and threw the will naming the sons his heirs in the fireplace with the intention of burning it. Elizabeth got it out of the fireplace with a broom and hid it for years until his death in 1857. The will naming the daughters heirs was never produced to my knowledge. They, the daughters and their husbands, apparently claimed in the original lawsuit that the will that Lackey Salisbury, son of William, produced, was a forgery and the estate should go to them. In the late 1850’s, exact date unknown, the court found that the will naming the sons his heirs was indeed of William’s handwriting and the sons would inherit. This case is the appeal of that decision brought by the sons-in-law, in the interest of their wives attempting to get the estate. The Players The Children Of William
Salisbury & Nancy Elkins The Children of William
Salisbury & Elizabeth Walker The Will in Question Will Book A, Pg. 3 It was not finally recorded as a true will until 2 March 1871, 14 years after his death. Lackey Salsberry vs. Hiram Salsberry, August 1857 This day the parties appeared by there attornies and the Plaintiff produced exhibits N1.2.&3 which ordered to be filed and the evidence of Alexander Lackey, Lewis H. Brown & John Holbert Sr. being heard it is adjudged that the paper offered by the Plaintiff dated 3d day of Feby 1833 purporting to be the legal will and testament of the said Wm. Salsberry deced and that the same be admitted to probate as his last will and testimony. It is further adjudged that the Plaintiff recover of the Deft the cost about this motion herein expended. Alex Lackey, John Holbert Sr. & Lewis H. Brown each is allowed 50 ct. each for one days attendance this term as witnessis for the Plff. Alex Lacky is also allowed 50 cents for one days attendance at last term as a witness for the Plaintiff. On motion it appearing the will of Wm. Salsberry deceased appointed no executor it is ordered that Lackey Salsberry and Robert Salsberry be appointed administrators with the will a___(?) of the said Wm. Salsberry deceased who thereupon took the oath required by law and executed the covenance proscribed by law with Thomas P. Johns then ___(?). A copy Test. Ed Trimble, DC Appeal, August Term 1860 Job Martin & Jemima his wife, John Flannery & Arta his wife, Jesse Howell & Elizabeth his wife, Plffs, against Lackey Salsberry, Green Salsberry, Morgan Salsberry, Robert Salsberry & Elizabeth Salsberry, Defts., Copy of Judgment filed. Persons Named: Deposition of Nancy Smith, 28 August 1860, Boyd Co., KYThe deposition of Nancy Smith taken on the 28th day of Augst 1860 at the County Court Clerks office in & for Boyd County in the town of Catlettsburg, Ky to be read as evidence in an action between Wm. Saulsery plaintiff heirs agst Wm. Saulsbery devisees defendants pending in the Floyd Circuit Court. Question 1. State if you was present and heard a conversation between William Saulsbery & Elizabeth his wife in relation to a will which is the subject of controversy. State when it was and where it was and what persons present if any. Answer 1. I was not present. My mother told me that her and my father had a conversation about the will and they could not agree about the will. She said he got up from the table with what she supposed to be the will and went toward the fire as though he intended to destroy it. She kept her eyes on him and followed him and saw him make the motion to throw it in the fire. It lodged on a stick of wood behind the fire and she said she picked up the broom to prevent him from discovering her. She swept on with the broom on the hearth and thus got hold of the will and preserved it. She said that he said when he threw it (the will) in the fire now help yourselves all of you. She said she had kept the will until she saw Lackey Sallsbury and that she had kept it ever since. She said he never knew until that day but what he burnt it up and that he never should know. She told me this some three or four times. The last time was some three years before my father died. Question 2. State what your mother said that your father said in regard to the justice or injustice of said will & what he said in regard to the law & regulating the same. Answer 2. She said he said he had a mind to will his property to his three youngest girls and that she objected to. She told him he had made a will and that his (unreadable word) it right she reckoned. She said he told her that that will was of no manner account and that if he had have ever intended it to be of any account, he would have had it recorded and kept it up from year to year, but that he always thought he had burned that will up. Question 3. State whether or not you have any interest in the event of this suit either directly or indirectly. Answer 3. I have not. I have sold all my interest in said estate to William Messer without recourse on me. And further this deponent saith not. /s/ Nancy Smith, her mark. Summons, Robert Salsbery, James Hunter & Anna Hunter, October 1860The Commonwealth of Kentucky to the Coroner of Floyd County you are commanded to summon Robert Salsbery, James Hunter & Anna Hunter to appear in the Floyd Circuit Court on the 1st day of its next December term and answer the appeal taken by Job Martin & wife and John Flannery & wife & Jesse Howell & wife from a progenent (?) of the Couny Court a__aiting the will of William Salsberry to Probate. Witness my hand as Clerk of the said Court this 6th Oct 1860. James Trimble, Clk. SummonsJob Martin & others, appellant, against L. Salberry & others appellie. The Commonwealth of Kentucky to the Sherriff of Greenup County you are commanded to summons Hiram Salsberry, Wiley Smith & Nancy Smith to appear in the Floyd Circuit Court on the 1st day of its next December term and answer the appeal taken by Job Martin & wife, John Flannery & wife and Jesse Howell and wife from a progunent of the Floyd County Court admitting to will of William Salsberry to Probate. Witness my hand as Clerk of court. 6th day of Oct 1860. Jas Trimble, Clk. Not executed on Hiram Salsbury, Wiley Smith and nancy Smith by reason of their absence from home. /s/ G.W. Darlinton, SGC Cause of the Smiths absence from home there is a Capias profine issued agst nancy and a Bench Warrant agst Wiley & they know it. /s/ G.W. Darlinton. Deposition of Nancy Salisbury Smith, 16 November 1860, Floyd Co., KYThe deposition of Nancy Smith taken on the 16th day of November 1860 at the Examiners office of James T. Ford in the town of Prestonsburg, to be read as evidence in an action between Job Martin & many plaintiffs and L. Saulsberry & other defendants pending in the Floyd Circuit Court. Nancy Smith being of lawful age and first duly sworn to answer questions on the (two unreadable words) by me deposeth and saith. The defendant objects to the deponents giving evidence, upon the scope of interest because the deponant says she is the daughter of the decedent and she says she dose not feel herself interested in the event of the suit, because she has sold her interest to one William Messer he lives in the county of Greenup Ky. She says she sold her interest by a written contract for the sum of $400. to the said Messer, he paid me $100. at the time I sold my interest to him, the remainder he was to pay me in one & two years for which Ihave his notes. J. Messer is a common ___(?) owns some lands & other property. I know of no one getting Messer to come to me to by my interest. I made a pretention to sell my interest to my daughter Elizabeth at one time. I did sell it to her, but afterwards recinded the contract. I would suppose that Wm. Meser is sooth my debt & more two I don’t think. I ever tried to employ nor worsham (?) in this suit. I may have spoken to him but not with the view of employing him. I did speak to Jno. M. Burnes with the interest of employing him & he told me he was employed on the other side and this was two years ago last June. To the foregoing answers the appellants excepts question by appellants. Please state when you sold your interest in your fathers estate to Messer whether or no you made him a written conveyance of the same or not. I made the conveyance to Messer. I think in August last without recourse on me by same to same. Please state whether or not you have any interest in the event of this suit either directly or indirectly. Ans. I have not. I only look to Wm. Messer. Question by the defendant: Please state the resans that you sold your part of the estate to Mr. Messer without recourse. Ans. I did sold it to him because I did not wish to be bothered any further with it and I thought I had a right to sell it believing it to be my own. By same to Same: Was you or not advised to sell your part of the estate without recorse so that you would be a competent witness if so state who advised you to which question appellants excepts. Ans. I was not advised to sell my interest in the estate with or without recourse by any one, what I done I done of my own accord. The deponant duly sworn in chief states as follows. Question by Appellants: Please state if you was present and heard a conversation between William Saulsbery deceased and Elizabeth Saulsberry his wife in relation to a will the subject of controversy. If so please state the time place & persons present and all that you heard past between them in relation to this suit. The above question excepted to be Defts. Ans. I was not present when the conversation took place, mymother told me that her & my father had a conversation about the will. I forget what she said they deferred about, but she said they had a diferance, she said Nancy I talked worse to your father than I ever did. She said he got right up & started to the fire with the will in his hand as she supposed. She said she was spinning rolls at the big wheel. She said she droped her roll & kept her eye right on him. She said she saw him throw it & saw it light on a stick which lay back of the fire. She said when he threw it he turned right round & said help your selves all of you. She said she picked up the broom & swept along on the floore. She said she swept along until she got to the hearth in ordre to keep him frome nothering of her. She said she took it & kept it until she saw Lackey & he took it & read it & it was the will. My mother could not read writing. She said he never knew but what he burnt it & he never should know it. By this I think was in the year 1853. This took place in the yard at my fathers house. There was no person present except my little baby that I recollect. (Question) By same. Please state in that conversation what your mother said that your father said in regard to the justness or injustiss of said will and what he said in relation to law regulating wills. Ans. I don’t mind at this time. I am not prepared to say but in a conversation with her last fall she said that my father told her that he had a mind to will his property to his three youngest girls. She said he commenced a will to that effect. She said she objected to his doing that. She said she told him that he had once made a will & she reconed he had made it right. She said that my father said that the old will was of no manner account. She said he said that if I ever had intended it to of don any good. The devisees Lackey Sailsbury and thies excepts the depisition of Nancy Smith first because there was no sufficient notice – secondly there was no lawful execution of the same. 3d because the witness was interested. 4th because she speaks from hearsay & details conversations. 5th because the questions are leading and the answers are irrelevant and illegal. 6th because the cirtificate was writers by the attony of appalants & is not good in law this 27th April 1861. /a/ Elliott Burns for appalers Fi Fa, 30 Feby 1861The Commonwealth of Kentucky, to the sheriff of Floyd County, Greeting: We command you that of the estate of Lackey Salsbury, Morgan Salsbury, Green Salsbury, Elizabeth Salsbury, Milton salsbury, Willis J. Keathley, Sarah Keathley, Robert Salsbury, James Hunter, Anna Hunter you cause to be to made the sume of Five Dollars ad thirty five cents which Job Martin & Jemima his wife, John Flannery & Arta his wife, Jesse Howell & Elizabeth his wife late in our Floyd Circuit Court … to recover costs for continuance. James Trimble, Clerk Fi Fa, 1866Same as above in the amount of one dollar and sixty cents for cost of court at December Term of 1866. Summons, 10 April 1867To the Sheriff of Floyd County. You are commanded to summon Lewis Brown, John Holbert Sr., Lindsey Layne, Fredrick Stumbaugh & Bluford Suthord to appear before the Floyd Circuit Court, at the Chourt House thereof, in the town of Prestonsburg, on the 1th day of its June term, to testify in behalf of the Deft in a certain action in said Court between Job Martin & others Plaintiff, and Lackey Saulsberry & others Defendant. John G. Johns, Clerk of the Floyd Circuit court. Summons, 3 July 1867Same form as above, summon Lewis H. Brown, John Holbert Sr. and Bluford Suthord to appear 2d day of next December Term to testify in behalf of Defendants. /s/ John G. Johns Second summons for Elizabeth Salisbury to appear same day. SummonsMr. Geo. E. Roe atto for appellant & Job Martin, you will each take notice on the 7th of August 1868 at te residence of Jno. Holbart Sr. on Beaver Creek in Floyd County shall take depositions to be read as evidence on the trial of the above named cause and will continue from day to day until completed. July 16th, 1868, /s/ Lackey Sailsbury Deposition of John Holbert, 7 August 1868Taken on the 7th of August 1868 at the residence of John Holbert Sr. on Beaver Creek in Floyd County to be read as evidence in an action between Job Martin, Jemimah Martin, John Flannery, Arta Flannery, Jesse Howell & Elizabeth Howell, Wiley Smith, Nancy Smith, Willis Keathly, Sarah Keathley, James Hunter & Anne Hunter appellants and Lackey Salsbury, Robt Salsbury, Morgan Salsbury appellee pending in the Floyd Circuit Court. Mr. Holbert state gives age place of residence was you acquainted with William Salsbury deceased in his life time if acquainted with how many years was your acquaintance slight or intimate. Answer: I am in my 17th years, I live on Beaver Creek in Floyd County, I was acquainted with Wm. Sailsberry dec for several years; some 35 years if not more. I lived closed to him and was as well acquainted with him as any body. I lived on his farm about 3 years. Quest. By apellee: Was you acquainted with his hand write if so was you well acquainted with it what opportunites did you have for being acquainted with it. Answer: Some little Sir. I used to be with him and see him write. I have seen him write diferant things charging accounts, and writing advertisements for his horses, writing notes. Question by same: When you would see his advertisements for his horses would you recognize his hand writing. The above question objected to by appellants. Answer: Yes sir. Question by same: Can you now see well enough to read writing. Answer: I can not. Question by same: Can you see well enough to read the name of Wm. Salsbury to the paper dated 3d of Feb 1833 now shown to you & purporting to be the will of said Salsbury? Answer: Objected to by appellants. I can see well enough to read the name of Wm. Sailsbury to the will as it is called. Question: in whose handwrite in the name of said Salsbury written. Answer: The handwrite favors his hand write but I cant say that it is his. Question by same: Do you rember in him the Salsbury will care was tried in the Floyd County court at the time Gene Lackey & yourself was a witness before Judge Layne? Objected to by appellants. Answer: I recon so. Question by same: Did you at that time see a paper purporting to be a will of Wm. Salsbury deceased & did you then recognize said paper as in said Salsbury hand write. Objected to by appellant. Answer: I then ___(?) paper purporting to be the will of Wm. Sailsbury &c. I then thought that a few times at the top part of it favored it, the balance did not favor it as I thought then. Cross examined by appellants. Question by applants: The name of William Salsbury on the paper purporting to be a will that favors the signature of William Salsbury state if you know if you have not seen other hand writes that favoroured the same. Answer: Likley I have but I would know. Question: Can you now say that it is the hand writing of William Salsbury? Answer: No. /s/ John Holbert, his mark Deposition of Elizabeth Salisbury, widow, 7 August 1868Also the Deposition of Elizabeth Salsbury taken by appellants. (Part of the Holbert Deposition document) Question: Do you or not remember that William Salsbury at__ talked of making a will and if so state all you know abut it. Answer: The first I ever knew about his will was after he told me he had needs one and he read it to me. Question: If you herd the paper read to day purporting to be the will of William Salsbury state if it reads as the one he read to you. Answer: It has been a good while since he read it to me. I heard the paper read today purporting to be the will of Wm. Sailsbury dec. and it don’t read as I always understood the one to read. Question: State whether or not the girls ever got the horses spoken of in the paper you heard read today. Answer: They never got them from the boys. Question: State if you remember the last conversation you ever had with William Salsbury about making a will and if so state that conversation. Answer: The last conversation he ever had to me about making a will was as he said to will his 3 little girls the farm, all of his land together he had no divide to it. Question: State if you please if he spoke of the old will and if so what did he say about it. Answer: He talked about an old will and said it was no account for he sait it should have been put to record & kept up every year. Question: Did he not say in that conversation that he had no will or did you not so understand him. Answer: I did not so understand him. Question: How long that was after the paper purporting to be his will was written. Answer: I recon it was between 6 & 10 years. Question: If you herd William Salsbury say anything about disinhertin Green his son state what it was and when it was. Answer: I heard him say that if Green did marry that woman which he did marry that he never should have any of his estate. This was 22 years ago last May. Cross Examined by Lacky Salsbury Mrs Salsbury to whom did he give his land in the will you heard read according to your recollection. Answer: He gave it to Robt, Lackey, Green and Morgan Sailsbury. Question: How did he divide the land according to your best recollection of the will. The two questions above the appellants objects to. Answer: The upper part was given to Lackey the next was Morgan’s the home place was given to Greens and the lower end to Robert, that is the way I all ways understood the old will to read. Question: How long since you heard the will read by Wm. Salsbury & how often did he read it. Answer: It was shortly after it was written. I can not tell how often. I have heard him read the will but not often he kept it amongst his papers. Question: Can you read writing? Answer: I can not. Question: You said in a former part of your deposition that he your husband spoke of his willing his land to the girls. Did he finish or complete that will. Answer. He did not finish it he only commenced it. Question: Did the girls as they married get horses from you or their father & if so from which of you did they resceve the Horses. Answer: They every one got horses from their father both boys & girls. Question: In what does the paper purporting to be will of Wm. Salsbury differ from the will you heard him read according to your recollect. Objected to by appellants. Answer: The diferance is the division of the land. Question: Is the division of the land the only diference according to your recollection. Answer: I don’t know if it aint. I don’t recollect of any other. Reexamined by Appellant Question: State whether or not at any time before the deth of William Salsbury he attemtid to burn the old will spokin of and whether or not you parzerved it. Answer: I never heard of it. If I ever did I have forgotten it. I don’t believe it ever happened. Question: Is not the division of the land you spoke of in the first will he rote. Answer: It was in the onley will I ever heard him read. Question: Is the papaper you heard read to day purporting to be his will the same you herd him read. Answer: This paper don’t divide the land as I understood it. I don’t think this paper reads as that one did and further this deponant saeth not. /s/ Elizabeth Sailsbury, her mark State of Kentuicky Floyd County. I James T. Ford examiner for Floyd County do certify that the foregoing deposition of John Holbert Sr. & Elizabeth Sailsbury was taken before me and was read to and exhibited by them in my presence at the time and place and in the action mentioned in the caption the said Halbert, Lackey Sailsbury, having been first sworn by me that the evidence thereof should … This document is almost impossible to read, but basically just the caveat saying they deponents were sworn before the commissioner, &c. SummonsJob Martin & others appellants against Mr. Lacky Saulsbury & others appellees Mr. Job Martin & Geo. E. Rae (or Roe) attorney for appellants. Gentlemen, you will each take notice on the 26 of November 1868 at the clerks office in Estillville, Scott County Virginia the appellee will take depositions to be read as evidenced on the trial of the above named cause finding in the Floyd Circuit Court & will continue from day to day until completed. Oct. 14th 1868. /s/ Lackey Salsbury Deposition of Bluford Southard, Scott County, VA, 26 November 1868The Deposition of Bluford Southard taken before me the undersigned a justice of the peace for Scott County Virginia pursuant to notice, in the Clerk’s office of Scott County Court Va. In the Town of Esitllville, which Deposition is intended to be read as evidence in behalf of Lackey Salsberry in a certain suit now pending in the Circuit Court of Floyd County Kentucky, Wherein Job Martin is Plaintiff and Lackey Salsberry is Defendant, this 26the Nov. 1868. Blueford Southard a witness of lawful age after being duly sworn deposeth and saith that he heard William Saulsbury father of Lackey Saulsbury say that he intended his land for his sons and that his daughters he inted that they should be paid their shares in horses saddles cows & bedding and am sure he was in his right mind have went to preaching with him several times and heard him preach and further the deponent saith not. /a/ Bluford Southard, his mark. Fi FaWe Job Martin principal and Hiram Morgan as his surety do bind ourselves 3 months from the date thereof to pay to Lackey Sailsbury and others the Plaintiffs in execution the sum of thirty five dollars & 70 cents it being the amount of principal and cost of a execution that issued from the Floyd Circuit Court on the 13th day of December 1869 for the sum of $33.52 cts our fifa __ half commission … Affidavit of Jesse Howell, May 18, 1869Jesse Howell says that Lackey Saulsbury now in possession of a portion of the land involved in this controversy and has been holding the same for some years past. They are insolvent and if they should not succeed in holding the land, which affiant says he does not believe will be the case, a recovery against said Saulsbury for rents will be ineffective. And affiant says that this litigation is protracted by said Saulsburys by moving for and abtaining continuances for the purpose of retaining possession without being ultimately pecuniarily responsible for rent. /a/ Jesse Howell Sworn to before me by Jesse Howell, May 18, 1869. /s/ John G. Johns, Clk. Affidavit of Lackey Salisbury, May 18, 1869The appelle L. Salsbury says he is not ready for trial at this term of the court because of the absence of Lewis Brown & F. Stumbaugh & Kate Hale. He can prove by Lewis Brown that the paper purporting to be the will of Wm. Salsbury is wholly written by the hand write of said Salsbury by Stumbaugh that Wm. Salsbury told him frequently he intended his land for appelles & the same by Kate hale that he had process was issued for said witnesses as the clerk told him that before the present term by the court he applied to the clerk to issue process for the attendance of said witnesses & he informed & told this affiant that process had been issued & was in the hands of an officer (the office of Sheriff being vacant in Floyd County) he makes this affidavit not for delay or vexation or delay but that justice may be done & asks a continuence of the cause. /s/ L. Salsbury Sworn before me of L. Salsbury May 18, 1869 Order, 22 May 1869The affidavit of Jesse Howell being filed it is ordered that the lands now in possession of Robert, Green & Lackey Saulsbury be and are hereby placed in the hands of J.W. Mayo, Master Comm’r as this Court’s Receiver who will take charge and control of the same and rent them out to the highest bidder at the court house door in Prestonsburg until January next after having advertised the time and terms of renting for ten days at 4 public places & in the neighborhood of the lands and one at the Court House door in Prestonsburg. The renting will be on a day to be fixed by the Commissioner but not less than 20 days from this day. But should the said Robert, Green or Lackey before the day of renting execute with approved security a bond to the Receiver to be responsible for a reasonable rent for the part occupied by such on the Rec’r will not rent out that portion the rent of which may be so secured. The renting, if made, will be on a credit until 1 January next and the renter or renters will be required to execute bond with good security having the force of sale bond. The Rec’r will report to this Court at its next Term. /s/ John G. Johns Summons, Lindsey LayneThe Commonwealth of Kentucky to any constable of Floyd County you are commanded to summon Lindsey Layne to appear before the Floyd Circuit Court on the 2d day of its next May Term and testify on behalf of the defendant in an action in said court between Job Martin &c Plffs and Lackey Salisberry &c defendants. Witness John G. Johns, Clerk of the Floyd Circuit Court, this day of March 1869. For EquityWe John B. Turner Principal and Joseph M. Davidson Security
undertake to pay John W. Mayo Receiver in the above cause the sum of Five
dollars and 00 cents on or before the 1st day of January 1870 as a
rental for portion of the land formerly in the possession of Morgan Sailsbury
that lands named in the Pleadings of the above cause upon which the cross is not
pending. This Bond to have the
force and virtue of a sale ___(?) and if not paid at maturing execution may
issue thereon this the 12th day of July 1869. Summons, Lewis H. Born, John Holbert Sr., Bluford Southard, Fredrick Stumbaugh, Catherine HaleThe Commonwealth of Kentucky to the coroner or any Constable of Floyd County. You are Commanded to arrest Lewis H. Brown, John Holbert Sr., Bluford Southard, Fredrick Stumbaugh, Catharine Hale and have them before the Floyd Circuit Court on the 2d day of its next October Term as well to testify on behalf of the Defts in an action in said Court between Job Martin & others Plffs and Lackey Salsbury & others Defts as to answer for their disobedience of the subpoena served on them and you will admit them to give bail for the appearance in the sum of $100 each. Witness my hand as Clerk of said Court this 28th day of July 1869. /a/ John G. Johns, CFC Summons & Bond, Lewis H. BrownWe Lewis H. Browen Principle and Robert Frasier security do
undertake that the said Browen shall appear on the 2d day of the September term
of the Floyd Circuit Court where one Sackey Salsberry and others is defenents
Jobe Martin and others Planifs this Bond is for one hundred dollars this
September 18th 1869. In Equity, 18 May 1870, by J.W. Mayo, ReceiverAs Receiver in the above cause I proceeded to collect the Bonds for the Rents of lands name in the Pleadings of this cause. Said Bonds being due the 18th day of January 1870 as follows: Bond vs Lackey Sailsbery & others
$1.00 Bill of Exceptions, Filed June 13, 1870Be it remembered that on the calling of this cause for trial the Appellee, introduced as a witness Judge Lindsey Layne who proved that he was Circuit Judge of Floyd County Court from 1854 to 1858. He examined the will or paper purporting to be the will of William Salisbury and says that it is the same as probated before him now. While Judge, Appellees then offered to prove by the witness that General Lackey who served on the probate trial that the will was wholly in the handright of William Salisbury. Appellant objected to the testimony and the Court sustained the objections and Appellee excepted. The witness proved that he was not acquainted with the hand write of the testator William Sailsbury. Not sufficient to give the opinion. He proved General Alexander Lacky was dead that he was a man of fine moral character & a Baptist Preacher; that Gen Lacky swore on the Probating of the will of William Sailsbury in the Floyd County Court that General Lacky swore that he had known the testater William Sailsbury for over forty years that he and testater had been members of the Baptist church together, for about the same length of time that he had seen (Brother) Sailsbury with very often in all that time in keeping the minutes of the church that he (the witness) Lacky knew Testaters hand writing very well; that the body of the will and the signature thereto looked very much like his hand writing in fact he was sure the body of the will was in the hand writing of Testator and the signature thereto he believed to be his from his long acquaintance with testator & his hand writing. Appellees then introduced as a witness Lewis Brown who examined the paper which purported to be the will of William Sailsbury. He had seen the paper before. Saw it the first time when it was probated. Mr. John M. Burns had it. Don’t know his hand write of testator perfectly but is partially acquainted with it; he proved the paper he saw as the hand write of the testater: but he could not say it was – he never saw him write. Except at an Election all he can say is that it favors testaters hand write. He was a witness in the County Court when the will was probated his age is 56 years. He has seen the hand write of other men that looks like the paper offered as the will of William Salisbury. Never saw the will until summoned to appear in the County Court as a witness. William Sailsbury had been dec’d about one year May be longer and may be not so long. When the will was probated, in the County Court, the will was handed me by John Burns, to examine at the time of its probation. He never had heard that Sailsbury had made a will until the day of its probation. He moved to the neighborhood of Salisbury in the year 1838 and never had heard such a thing as a will spoken of by him until as above stated. He said Testater had been a Clerk at Elections and at such places he had often seen him with that the paper perperting to the Wm. Sailsbury’s will look like his hand writing. That John M. Burns who handed him the will when the same was offered for probate was for the devisees who propounded the will that he had known testator for a long time believed the will was in his hand writing but could not be certain. He said his knowledge of the hand writing of Testater arose from seeing him with at Elections so often there in any other way that Testater was a member of and in the Baptist church a man of good sense stony (?) will and he believed a good man. Appellees then introduced as a witness John Holbert who proved that he never saw testator write his name to bills bonds or notes. Witness then examined the writing purporting to be the will of William Sailsbury. He had seen the paper twice before and was tolerable well acquainted with the testaters hand write. He does not know whether the writing was done by William Sailsbury or not but it favors his hand write very much. The upper or first part of the will favors testators hand write more then the letter part. He can not say the signature of William Sailsbury is in his hand write. The most witness ever saw him write was advertisements for standing stallions. Witness said in his deposition a few lines of the first part of the will was in testators hand write the balance did not look so much like to and he says now the latter part of the will is not in the hand write of William Sailsbury or does not look like it or he never saw the will until it was probated or on that day and never heard of it until then. It was in the hands of some of Appellees some three or four years after death of Sailsbury. That he was about eighty years old, signature favors testator hand write very much. Could not say positively but thought it resembled Brother Sailsburys hand writing very much. The propounders of the will then introduce and offered to read in evidence to the jury the orders of the Floyd County Court probating the will for the purpose of as __(?) by them of piecing (?) what Gen’l Lackey testified at the time the will was protected. (Defts objection) Objections overruled) to which Defendants escepted at the time and still excepts. The orders of the County Court was then read to the jury. Defts still objecting. Then introduce John G. Johns - ___(?) proved that he was clerk of the Floyd County Court & Custodian of the records of said County and that the record produced was the Records of the County Court probating the will of said Testator Sailsbury. The Propounders of the will then reinst___(?) Lindsy Layne who proved in addition to what he before proved that on the trial of the Motion to Probate the writing purporting to be the will of Sailisbury that Genl Lacky examined the sd will carefully that he was sworn as a witness at said time was examined and cross examined, remembered what he testified at said time, stated that Lacky testified that the name was not spelled as he would have spelled it but an examination of same ___(?) at home that he knew the to be Wm Sailesburys hand write and that he had no doubt that the whole of the will was in the hand write of Brother Sailesbury that he had seen Brother Sailesbury write at associations & at other things – he said the marriage certificate of Mr. & Mrs. J.P. Martin was in the hand write of Testator. That he Lacky Cawford (?) same fofe (?) with will ___(?) does not remember what it was. General Lacky is dead. This was in 1857. Proved that Lacky have said the latter fact of the will did not resemble the hand write of Sailesbury, did not remember all that he did testify or state at his examination. Further stated that Lacky said after the examination of papers at home that he became fully satisfied that it was Testators hand write. Defts then moved the Court to exclude the testimony of Layne. Motion herd and overruled. Defts excepted at the time and still excepts. Profounders of the will then Introduced J.B. Harris who proved that he was present at the time Genl Lacky testified as a witness in the County Court on the probate of the will remembered what he Lacky testified at said trial. Said that Lacky examined the writing purporting to be the will & then said he was satisfied that it was the will of testator – said that he & Lacky were associated as church members & that he saw him write often. Said at first apart of it resembled the hand write of testator some of it not as much as others and a part of it did not resemble his hand write at all. Testator died in 1856. The date of the will has the appearance of having been changed from 1831 to 1833 and an examination of the will the “Y’s” in the body of the will are not like the one in the signature. Profounder of will introduced R.T. Burns who proved he was present when the will was probated, heard what General Lackey testified and proved that Lackey said he was an officer & member of the Baptist church and that he had acted as their clerk and that Mr. Lackey was not sworn as a witness and this was the first thing that called the attention of the witness to Mr. Lackey and some one present remarked that owing to his known honesty and integrity they never swore him and Mr. Lackey said he believed the will was in the hand write of the testator. Both parties waved the swearing of General Lackey. His recollection of Lackey’s testimony is that Lackey give it as his opinion that the will was in the hand write of Testator. The figure Y in the date of the will seemed to have been changed from 1831 to 1833 and the last figure Y in the will looks as if it ad been changed. But witness is not certain. Witness had just previous to the probate of the will entered upon the study of the law, that the venerable appearance of the witness General Lackey and fact that all parties waive the swearing of the witness attracted the attention of witness and made a deep impression on his mind. Appellees then introduced as a witness John M. Burns who proved that when General Lackey testified on the probate of the will he did not remember whether he was sworn as a witness or not. He proved that Lackey said on an examination of the paper at first he doubted the signature but after comparing it with writings he knew to be his (Sailsbury’s) hand write he was fully satisfied that it was. He said he was associated with Sailsbury in church & had seen him write often and said he was not fully satisfied it was his hand write until after comparing other hand writes. The figures 8 & 3 appear to have been written in heavier inks than the others. The figure 3 appears to have been added. Witness has not told all Lackey said but he has stated the substance of it. Appellees then introduced as a witness W.M. Strong who proved that he had examined the will. He is not an expert in comparing hand writes. Says that is is his opinion that the will and the signature thereto are all the same hand write. Some of the y’s in the body of the will are not like the one in the signature but the General uniformity are about the same. The figure 3 seems to have been changed from a figure 1. Some parts of the will is darker than others. Has an appearance of a greater abundance of ink. Other figure 3 then the residue and is not a general uniformity with the letters of former hand write. He said the figure (3) was in heavier hand or that might have been an abundance of ink in the pen when the figure (3) was made or there might have been something on the point of the pen which made the seeming difference. Appellents then introduced J.M. Davidson as a witness who proved that he had some experience in the comparison of hand writing and it seems to him that there is much uniformity in the will from beginning to end as is usual in hand writes. There is a difference in the figure 3. There is no similarity in the figures 3. he does not think the last figure 3 in the date of the will was written by the same person that wrote the balance of the will. It looks like it might have been put there after the other was written and was not done by the same hand. He said on this point he only have it as an opinion. The diference in the appearance of the figures (3) might have been produced from other causes in the pen amount of ink or the force applied when the figures were made. Appellees here closed their testimony. The appellants then introduced as a witness J.P. Harris County Judge who proved that he was present when General Lackey testified as a witness at the probate of the will of Sailsbury. Witness does not recollect his testimony as others did. General Lackey said in his statement to the Court that he doubted the latter part of the will being in the hand write of the testator but he thought the first part of the will was in the hand write of the testator. He said he was familiar with Brother Sailsbury hand write & had no interest in the will. Says he did not hear General Lackey at the time he spoke in his testimony of having examined the writings he knew to be testators that he (Lackey) was satisfied the paper purporting to be the will of testator was his hand writing. He said he did not remember near all Mr. Lackey said in the trial of probating the will of testator. Appellants then introduced as a witness Joel Martin who proved he was present and heard General Lackey testify on the trial of the probate of the will. Lackey said the first part of the will looked like the hand write of the testator and the balance and as to the latter part of it he had some doubt. Witness can not say that he can tell all that Lackey said. He might not have heard it all. He heard him say what witness has detailed above and he thinks it is the substance of what he stated on the probate trial. (Appellees moved to excuse all the witness proved and the court overruled their motion and they excepted.) The Appellants then introduced as a witness A. J. Fitzpatrick who proved that he heard General Lackey testify but is not willing to risk his recollection as to what he said about the will. Appellants then introduced as a witness J. T. Ford who proved he was present & heard Lackey testify. He said the fore part of the will was in the hand write of the testator but he had doubt about the latter part. He does not undertake to state the substance of all that General Lackey did say on the trial only what I recollect. It is on my mind that I one took Lackey’s deposition about it. If I took it, it was about as above stated. Appellants then introduced as a witness J.B. Burnett who proved that he heard General Lackey testify abut the will on its probate. He can not tell all he said. The old man said a portion of the will resembled testators hand write but there was a part of it did not. General Lackey said he had frequently seem the testator write. Appellants then introduced as a witness Lewis Brown who proved that he heard General Lackey testify about the will. Lackey said there was a part of the will he doubted being in the hand write of the testator Sailsbury. He can not now remember which part of the will lackey doubted being in the hand write of the testator. Witness has seen the hand write of other men that proved the hand write in the will but said he was sworn as a witness for the Propounders of the will & said then and still says he believed the will was in the hand writing of testator that he had seen him write often at elections & other places & knows his hand writing. Appellants then introduced as a witness G.M. Witten who proved that he had examined the will presented. Says the figure 3 in the date of the will is not like the others and has the appearance of being changed from a 1 to a 3. It may have been done by coagulated ink but on close examination it has a bigger (?) tail and is different from the other figures in the will. He thinks the whole of the will resembles the same hand write except the figure in the date of the will. The last figure 3 in the will does not resemble any other part of the writing and seems to have been made after the original writing. Appellants then introduced as a witness W.J. Mayo who proved in 1857 he was Sheriff of Floyd County and that he heard General Lackey testify as a witness on the probate of the will in 1857. Lackey said apart of the will looked like it was in the hand write of testator but some of the writing in it was too good for Sailsbury’s hand and he doubted apart of it being in the hand write of testator. A part of it was his hand write and a part of it looked too good for his hand write. All of the will he said resembled the hand write of testator said he had forgotten all Lackey said in his examination and did not pretend to give all but only what he remembered of it. Appellants then offered to read to the jury the deposition of Nancy Smith to the reading of which Appellees objected and the Court sustained the objection and refused Appellants permission to read the deposition and Appellants excepted to the opinion of the Court in refusing them permission to read the deposition. Appellees then introduced J.B. Fitzpatrick as a witness who proved that he was present when the will was probated in 1857 heard General Lackey testify. He, Lackey, said he had some doubts about the will being in the hand write of Sailsbury but after examination of some other papers that he knew to be testators hand write he had no doubt about its being al in the hand write of testator. Witness attention was called to the testimony from the fact that he was just preparing to enter upon the legal profession. The last figure 3 in the date of the will does not resemble the other figures 3 in the will. The figure 3 in the will the figure 3 in the date of the will looks like it had been changed from a 1 to a 3. The blur might have been made by the pen catching in a soft place in the paper or a heavy flow of the ink. Appellants then recollect and introduced John W. Kendall who proved that he was not an expert in the compairing of different hand writes. Says the last figure 3 in the date of the will is not like the other figures 3 in the date or in the body of the will. From appearance the last figure 3 in the date of the will was not made when the others were written and has th appearance of much more recent date and the last figure 3 does not resemble the others. The body of the writing has faded except the figure 3 looks fresher and has the appearance of being changed. Does not know that it had been changed the difference in the appearance of the figure 3 might have occurred from many causes. Appellants then offered to prove by Mrs. Osborn that Anna Hunter, a daughter of the testator, was born after Feb 3rd 1831 and before the 3rd of Feb 1833. The Appellees objected to the testimony and the Court sustained the objection and Appellants excepted. Appellants then offered to read to the jury the suit papers and record of the suit of Keithley & wife & others, Heirs of the testator against Devisees of the testator (to show that Mrs. Hunter was born after 3rd of Feb 1831 and before 3rd of Feb 1833). Appellees objected to the reading of the record and the Court sustained the objection and Appellants excepted. This being all the evidence offered by either of the parties the Court of its own motion instructed the jury as follows:
Marked Appellees instruction and to the giving of instruction No. 3 Appellants then excepted and still except. Appellants then moved the court to instruct the jury as follows: Nos. 1 – 2 – 3 marked Appellants Instructions. (Do not have them) The Court refused and rejected No one and give 2 & 3 and to the opinion and ruling of the Court in refusing their instruction No. one the Appellants then excepted and still except. These being all the instructions. The Jury returned into Court the following verdict: We the Jury find the testamentary paper dated February 3rd 1833 & in content to be the true last will & testament of William Sailsbury Deceased. /s/ Marvel Slone, one of the Jury The Appellants then moved the Court for a new trial of the
cause upon the following ground (here insert them) (Note: They are
not here) The Court upon
consideration overruled the motion for a new trial and Appellants excepted and
prayed an appeal which is granted and that this their Bill of Exception may be
signed, sealed and delivered by the Circuit Judge as a part of the record which
is done. Last updated 23 August 2000 |