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Mrs. Isabella O'Neal (by next friend, etc.) vs. Lon Lee (next friend) et al, 1910

 

Transcribed by Linda Carpenter

©2008

Sumner County Chancery Loose Lawsuit Folders, Case #14112
* Sumner County Clerk Minutes Vol. 20 - 22 Feb 1903 - Apr 1914, Microfilm #56

 Transcribed by Jan Johnson Barnes

Mrs. Isabella O'Neal by next friend etc.

Vs.

Lon Lee, next friend et al

Answer of Defendants - Filed July 8, 1910 - J. D. G. Morton - Clerk and Master

The answer of Lon Lee, Robert Leslie Lee, Lon Lee next friend of Deems O'Neal, Ben O'Neal, Helen Perdue and husband, Ben Perdue, John O'Neal, Wesley O'Neal and Luther O'Neal, to the bill filed against them in this cause.

To answer to so much and such parts of said bill as they are advised it is material for them to answer, answering, they say:

It is true that on May 22nd 1908, Defendant Lon Lee, as next friend of his son Robert Lee, Leslie Lee and Deems O'Neal filed this original bill in this Court against Pink O'Neal, Mrs. Isabella O'Neal and also the correspondents, Ben O'Neal, Helen Perdue and husband Ben Perdue, John O'Neal, Wesley O'Neal and Luther O'Neal. The allegations of said bill filed by respondent are substantially set out in the plaintiff's bill in this case; but the said bill is on file in this Court and he same is referred to for its terms and allegations. It is true that said bill was filed for a partition or sale for partition of the tract of land left by D. W. O'Neal at his death and it alleged that the widow of D. W. O'Neal, Mrs. Isabella O'Neal had asked and accepted in lieu of homestead and dower the conveyance to her by her husband of a tract of 6-3/4 acres of land. The said bill is here a referred to and made a part of this answer the same as if its allegations were copied in full herein.

It is true that an injunction was issued restraining Mrs. O'Neal from cutting the timber from said lands.

Non-resident publication was duly and regularly made for the non resident defendants who are the present respondents, and pro-confesso was taken and entered against them, to which they did not object because the purposes of the bill in no wise violated their rights and its allegations were true so far as they knew or could ascertain. 

Process was regularly served upon Mrs. Isabella O'Neal and after she had failed to answer for almost ten months an order pro-confesso was entered against her and, all the other parties being properly before the Court, the cause was proceeded with in the regular and proper manner.

Upon the answer of Defendant Pink O'Neal by her Guardian ad litem and the original bill, an order of reference was made to the Clerk & Master directing him to take proof and report who were the owners of the property, whether or not there were any encumbrances and whether or not it was capable of partition in kind, & etc.

Proof was taken and it was made to conclusively appear and the Clerk & Master so reported that the land was owned in eight equal shares by the parties to that bill, that it could not be partitioned in kind and should be sold for partition and that the widow Mrs. Isabella O'Neal had no interest therein and was a resident of the State of Texas and not claiming any home stead or other rights therein.

The Court thereupon decreed that the said widow had no rights in the said property, that the Complainants were entitled to a partition thereof and to have the same sold for partition among the 8 owners and the Court accordingly decreed that the same be sold and it was regularly advertised for sale by the Clerk & Master of this Honorable Court, which was wrongfully enjoined by order issued upon filing of this bill.

It was proven upon the reference that Mrs. Isabella O'Neal had accepted the 6-3/4 acres in lieu of her homestead and dower rights, it was proven and true that Mrs. Isabella O'Neal shortly after the filing of the bill for partition had removed herself and her daughter to the State of Texas and was a non-resident of the State of Tennessee, it was proven and was true that the land was not capable of partition in kind and that it was manifestly to the advantage of all the parties that the same be sold for partition. It was therefore justified by the facts and by the law and the decree of the Court confirming the said report and ordering the land to be sold and decreeing that the widow had no rights therein was correct in law and proper under the facts of the case and under the proof, Respondents here refer to and make a part of this answer all the orders, pleadings and the proof in the said case of Lon Lee, Next friend etc Vs. Pink O'Neal et al as much as if they were here set out in full.

Further answering the Complainant's bill respondents deny that Mrs. Isabella O'Neal is a person of unsound mind or has ever been. She is thoroughly able to take case of herself and is doing so, being now in Texas and living there altogether removed from and receiving no assistance and direction from the person who sees fit to style himself her "next friend" in this proceeding. In response to Complainant's allegation that she did not accept the 6-3/4 acres in lieu of and in satisfaction of her homestead rights, respondents reiterate the charges in their bill of Lon Lee next friend, which are true, and it has not only been shown by proof upon the reference in that case but it can be proven by other witnesses and other testimony that she did take the said 6-3/4 acres with the distinct understanding that it was in satisfaction of her homestead and dower rights and that she was to have no interest in the land in controversy after the death of D. W. O'Neal.

Respondents further show, as was proven in the former case that Mrs. Isabella O'Neal left the State of Tennessee and took up her residence in the State of Texas after the death of her husband and she is still in Texas, residing there, and that it is not true that she went there on a visit but on the contrary she is living there in a house with her daughter whom she carried there with her and at the date of this answer, nearly ten months after the filing of Complainant's bill, she continues to reside there and utterly refute the Complainant's allegation that she was out there merely on a visit. Complainant, sustain his self serving allegation that she was merely absent from Tennessee on a visit, alleged that she would return sometime during the year 1908 and the untruth of that allegation is not only asserted but has been proven by the fact that she has not returned.

Respondents deny that the complainant next friend has been acting for Mrs. O'Neal in the renting of this place or in any matters. On the other hand they will show that she has acted for herself and been dealt with by everybody as a person capable of looking after her own business. She received her share of the personal property of D. W. O'Neal, Deceased, and same was paid to her without question by the administrator. She has rented this land the only time it has been rented for her benefit and since she is in Texas it is without a tenant and respondents as much in possession of it as is she or any one for her.

Respondents reiterate the allegations in the original bill of Lon Lee Next friend, to the effect that Mrs. Isabella O'Neal through her son (in law was marked through) had cut off of the 80 acres a large quantity of timber for a barn on her place of 6-3/4 acres. It is true that she had cut from the land belonging to respondents and Pink O'Neal all the logs and boards to build the barn and it is not true that any was cut from the 6-3/4 acres for the benefit of the 80 acres.

Respondents charge that the acceptance of the 6-3/4 acres of land by Isabella O'Neal with the understanding, as she did, that it was to be in lieu and in satisfaction of all her rights in the land of D. W. O'Neal and that she was to leave the balance absolutely to his children, did preclude her from having any such rights in the said land; they charge that the further fact that she is and has been for two years a resident of the State of Texas and had been for some months at the rendition of the decree of sale, precluded her and now precludes her from having any homestead rights in the said tract of land; they charge that under the facts the Complainants were entitled to a decree ordering a sale for partition; and they charge that the said decree Of the Chancellor sought to be set aside by this bill was in ever respect correct and according to law and the sale thereunder should not have been interfered with and should now proceed.

Respondent Lon Lee specifically denies the charge of fraud in concealing the fact that Mrs. O'Neal was a person of unsound mind or any other fact, it not being true that she is a person of unsound mind and even if it was the filing of the bill and the proceedings thereunder were well known to the people who now take such a lively interest in her affairs and there was no concealment or haste and on the contrary the matter was proceeded with rather slowly, as the record itself shows.

It is not true that the Complainants in that bill were not entitled to a sale for partition; on the other hand they had the absolute right under the statute and the Court could not have denied it, and even should Mrs. O'Neal be entitled to some portion of the proceeds of said land she has not the right to enjoin the sale and interfere with the rights of the respondents.

The Complainant J. W. Ramsey, who styles himself a citizen of the County of Sumner, is a non-resident of Tennessee and a citizen of the State of Kentucky and respondents say that he has no right to prosecute this suit as the next friend of Mrs. Isabella O'Neal, a citizen of the State of Texas, on the pauper's oath.

All allegations in said bill not herein before specifically denied are here and now generally denied and denied as fully as if specifically taken up and denied separately.

And now having answered Respondents pray that the injunction heretofore granted in this cause be dissolved and that they be hence dismissed with their reasonable costs.

(Robert L. Lee has arrived at the age of 21 years since filing of said bill. Hand written.)

D. B. Puryear - Atty. For Defendants

State of Tennessee - Sumner County - Personally appeared before me, J. D. G. Morton, C & M, Lon Lee, one of the Respondents, who made oath that the statements made in their foregoing answer are true.

Lon (his mark) Lee

Sworn and subscribed before me this May 13, 1910. J. D. G. Morton, C & M

To the Hon. J. W. Stout Chancellor holding the Chancery Court for Sumner County at Gallatin, Tennessee

Mrs. Isabella O'Neal by next friend J. W. Ramsey citizen of Sumner County Tennessee

vs

Lon Lee next friend of Robt. Leslie Lee and Deems O'Neal citizen of Sumner County, Tennessee, complt. J. W. Ramsey next friend of Mrs. Isabella O'Neal respectfully shows to the court:

Issued 28th July, 1909 - Came to stand the same day issued and Executed by reading the written subpoena to Lon Lee, etc., and leaving copy with Lon Lee this August 11, 1909. J. F. Carter, Sheriff - Boddie & Durham, Solicitor for Complanant.

That on May 22, 1908, the Deft. Lon Lee as next friend of the Minors Robt Leslie Lee and Deems O'Neal filed hid original bill in this Court against Pink O'Neal and Mrs. Isabella Oneal residents of Sumner County, Tennessee, Ben O'Neal a citizen and resident of the State of Kentucky, Helen Perdue and husband Ben Perdue citizens and residents of New Mexico, John O'Neal, Wesley O'Neal and Luther O'Neal residents of the State of Texas , alleging that D. W. O'Neal died intestate in Sumner County on --- day of --- 1907 leaving as his only heirs at law Complts and Defts except Mrs. Isabella O'Neal his widow; that he owned up to a short time before his death 86 acres of land in the 13th Civil District in this County; that on November 9th, 1906 he executed a deed to his wife conveying to her a portion of said tract containing 6 A. 3 Roods and ---perches; which said deed was recorded by her April ----- 1907, after the death of her husband; and that the said deceased intestate died seized and possessed of the remainder of said land which was described as bounded on the North by the lands of' Jno. Perdue and the 6 acre tract above mentioned, on the East by the lands of Lee, on the South by Henry Pitt and on the West by John and Newton Hunter. The said bill alleged "A copy of the deed to Isabella O'Neal above referred to is filed herewith as an "Exhibit to this bill, but not for copy". *(A copy of the deed wasn't produced with these lawsuit copies, however I did transcribe the deed. lc - See Deed, 1906) The bill further alleged that the deed was made by the decd, D. W. O'Neal to his wife aforesaid for the purpose of providing for her a homestead "and it was requested by her in lieu of her homestead rights in the whole tract of land and it was deeded to her with the express and explicit understanding between the parties that the same was given in satisfaction of her homestead and dower rights and for the purpose of giving her absolutely this portion and leaving the remainder as the property of his heirs free from any claims on her part, either of homestead or dower, and she accepted and took the same and registered the deed with this distinct understanding and agreement . After the death of the said D. W. O'Neal his widow acting upon this understanding left the place and went to Nashville, Tennessee staying -----months; but has recently come back and is now upon the above described tract of land which the decedent left at his death . She is not only upon the same but is proceeding to cut a large quantity of valuable timber off of the same and is preparing to cut and remove the portion belonging to her above mentioned and to sell other of said timber and use it for purposes off of and disconnected with the said place & etc. "That the seven parties complainant and the Deft. Pink O'Neal *(See Pinkie O'Neal, POA Deed, 1914) a minor under the age of 21 years are the owners of the said tract of land above described each being the owner of a one eight undivided interest". "Deft. Isabella O'Neal is claiming homestead rights in the same" But Complts. deny that she is entitled to the same; the said land is alleged to be worth about $1000.00 and the that the same is incapable of partition in kind. The bill prayed that Mrs. Isabella O'Neal be enjoined from cutting timber asked that the Court decree whether she has any homestead rights & etc; and asked upon hearing that the same be sold for partition. *(See Deed: O'Neal, Izzie to J. M. & N. H. Hunter, 1908.)

A fiat was granted by Judge J. M. Gardenhire on the paupers oath process was served on resident and non-resident publication made for non-resident Defts. At the April Rules 1909 proconfesso was taken as to the adult *(Written on the side of this paper was: #Ben O'Neal a resident of KY. Helen Perdue & husband Ben Perdue residents of New Mexico. Jno. O'Neal, Wesley O'Neal, and Luther O'Neal residents of TX.) defendants and on the same day an order was entered at Rules appointing a guardian at litem for the minor defendant Pink O'Neal who filed a formal answer for said minor May 10, 1909. On the same day an order of reference was made to the C. & M. to report " who are the owners of the premises sought to be sold and the respective rights title and interests of each and what encumbrances there are if any; and whether the premises are capable of partition in kind & etc. On July lst, l909 Complt. introduced two witnesses G. C. Perdue and Jno. F. Perdue who testified as follows......

G. C. Perdue:

"Q." 11, There is a deed of record to his wife, registered after his death of 6-3/4 acres of land, were you present at the execution of this deed, and if so, what agreement was had with reference to it, and what understanding was had with reference to the balance of it?

"Ans." The day before they run it off she agreed to take one acre and at his death move away and let his children have the remainder but when we went to run it off he run off 6-3/4 acres. She took that they both told me that she took that and relinquished all claim to the remainder.

Jno F. Perdue:

"Q." 3. Did you ever hear any conversation between Mr. D. W. O'Neal and his wife Isabella O'Neal in which they discussed the deeding to her of the 6-3/4 acres of land to which she holds a deed? If so state what they said and what was their understanding about it.

"Ans." I heard them talking about it a right smart. They were having some disagreement and separated a number of times; and she seemed to think she would be knocked out of a home; and she first just asked him for one acre and he told her he would give her more than that and he would make her about equal with each of the children and told her she could have that and build her a house on it.

She agreed to take that and let the children alone and let them have the other. She also got some money at that time. Did you hear her make any statement after his death if so what and when?

"A." Yes, it was down there at a little store she was leaving going to Nashville and said she never intended to come back to it and said there and two or three different times that the children could have it.

"Q." Where does she now live and where does Pink O'Neal live and what is Pink's age?

"Ans." She left here to go to Texas nearly a year ago. Pink O'Neal is out there with her. She is 17 years old.

These witnesses and two others also testified that the land was incapable of partition in kind.

On the same day the C. & M. reported "that the 3 children of D. W. O'Neal were owners as tenants in common of said tract of land which he reported contained about 100 acres worth about $800.00 and that the widow is a non-resident of the State; that she accepted 6-3/4 acres in lieu of all homestead and dower rights and is not now claiming any interest in the land; and that the land was incapable of partition in kind.

The same day a decree was entered confirming the report and reciting "And the Court being satisfied that the facts are as set out in said report, the respective rights and interests of the parties are adjudged and settled accordingly, the share of each party being as reported by the Master, and no encumbrances by homestead and other rights.  The C. & M. was ordered to sell the same and now has the same advertises for sale.

Complainant J. W. Ramsey is next friend of Mrs. Isabella O'Neal would show to the Court that he is a brother of the said Mrs. Isabella O'Neal widow of the deceased D. W. O'Neal, and that the said Isabella is now and has been for a number of years a person of unsound mind - which fact was well known to the said next friend Lon Lee; that she knew nothing of Courts and was entirely ignorant of her rights as wife of the said D. W. O'Neal under the law; was entirely incapable of attending to any business or understanding the meaning of proceeds. She knew nothing of her rights to dower and homestead in the real estate of her husband D. W. O'Neal.

He would further show that it is not true that she accepted the 6-3/4 acres deeded her by her husband in lieu of homestead and dower. The deed which was never in fact exhibited to the Court although the bill made it an exhibit marked "Exhibit A" shows that the consideration of the same was "love and affection" Not one word said about its being in lieu of homestead and dower. It is not true that she did or does not claim her dower rights and homestead rights in said 80 acres of land, as found by the C. & M. She has been advised by her friends, and insisted that she had a homestead and dower in the said lands as alleged in the bill and she was at the time of the filing of the bill in this case living on the same and claiming her homestead in the same and has continued to so claim until this hour - and has rented the same out and now has the same rented out. That is Complt. has for her. She is now in Texas on a visit to her son born to her of a marriage previous to her marriage *(See Isabelle F. Ramsey Gregory O'Neal Lineage.)  to Mr. O'Neal but she left this State and county with the intention of returning and left her household goods with Complt., next friend, to be kept until her return which will be some time this year. He would further show that the 6-3/4 acres was not near so valuable as the homestead rights in the lands of the said O'Neal.

He would further show that there were no improvements on the said 6-3/4 acres at all, and that the same was not cleared or tillable and was alone valuable for the timber on it and the said widow if denied homestead and dower in the said lands would be turned out of house and home without a shelter of means of subsistence. The proof in this cause and the proof were without notice to the said Isabella O'Neal or any one for her.

It is not true that she was cutting the valuable timber from the 80 acres to make improvements on the 6-3/4 acres or that she was selling off any valuable timber from the said 80 acres. A tenant of hers while she was in Nashville cut a few big logs from the 80 acres to erect a barn on the 6-3/4 acres, but this was without her knowledge or consent, even if she had been capable of consenting; and more logs were cut off of her 6-3/4 acres and used in improving the 80 acres than were cut off of the 80 for the 6-3/4 acres.

Complt. is advised and insists that the acceptance of a conveyance from the husband by the wife "for love and affection" is not a waiver or surrender of her homestead or dower rights in the remainder of his lands unless so specified therein and that the wife cannot be deprived of her homestead in her husband's realty except by writing signed and acknowledged by her. And there being no such writing that she is entitled to homestead what ever real estate he left and that the decree to the contrary in this case is manifestly contrary to the law of the State and erroneous

He is further advised and insists that under the allegations of bill and the proof in the case as made out by the witnesses for Complainant in the said case, the Complts were not entitled to the decree that was entered, and that had the attention of the Court been called to it, he would have under the law repelled them. He is further advised and insists that had the Court known that the Deft. Isabella was a woman of unsound mind and incapable of attending to her own affairs a proconfesso would not have been allowed against her and that Complt. would not have been allowed to proceed to a decree against her; and that the concealing this fact from the Court was a fraud on the part of the said Lon Lee next friend; and this alone nothing else appearing the Court would set aside the said decree.

He is further advised that if the Court had been fully apprised of all the facts in the case, even if the deed for the 6-3/4 acres had on its face shown that it was in lieu of homestead and dower the said agreement would not have been allowed to be set up without close scrutiny and strict proof of fair dealing on the part of her husband; and that the same was to her interest and that she had been fully advised of all her rights in the premises, before she accepted the said deed and did agree to the same freely and understandingly and without fear or compulsion on the part of her said husband.

Complt. would further show that the sale made with the encumbrance of homestead and dower on the said land would be manifestly to  the injury and hurt of the remainder men and especially so of the minor Complainants and the minor defendant, as no one would give anything like the value of the said land for it encumbered with the life estate of the widow. Therefore the complainant comes into your Honorable's Court and the premises considered prays;

That proper process issue to compel the Defts. Lon Lee next friend and the two minor defendants Robert Leslie Lee and Deems O'Neal and that non-resident publication be made for the other parties named herein as defendants to this bill Defendants to the original bill, to answer this bill but their answer on oath is waived.

That said decree may be reviewed, reversed and set aside and the said bill by the Defendants filed against Complainants may be dismissed. That Complainants may have such other further and general relief as they may be entitled to at the hearing. That a writ of injunction issue against the Defts. enjoining them from proceeding with the sale of the lands under the decree in the said case as advertised by the said C. & M. this being the first application for a writ of injunction in this case. If the Court should be of the opinion that this is not a proper case for a bill of review, Complt asks that the proconfesso in this case and the decree on the same be set aside and that this bill may be taken as the answer of the said Deft. Isabella.

G. W. Boddie

J. T. Durham - Solrs. for- Complts.

State of Tennessee, Sumner County - Personally appeared before me, J. D. G. Morton, C. & M. of the Chancery Court of said State and County, J. W. Ramsey who made oath in due form of law that the facts stated in the foregoing bill are true to the best of his knowledge information and belief. Those stated as of his own knowledge he swears to be true.

He further solemnly swears that the non-compos on whose behalf this action is brought has not sufficient property to bear the expenses of the action about to be commenced, aside from her dower and homestead rights sought to be denied her in the decree sought herein to be reviewed and that she is justly entitled to the relief sought to the best of his belief.

J. W. Ramsey

Sworn to and subscribed before me July 26th, 1909

J. D. G. Morton, C. & M.

To J. D. Morton, C. & M. - Compt. having taken the oath required of four verses issue the writ of injunction as above prayed this July 27th, 1909. W. M. Hart, Judge

Microfilm #56 - Thanks to Jan Johnson Barnes!

Vol. 20

April Term 1907

Page 564

Ordered by the Court that W. T. Sherron, Wm. Neal & T. W. Duffer be and they are hereby appointed who being first duly sworn to act impartially shall go upon the premises and lay off and set apart to Mrs. Izzie Oneal widow of D. W. Oneal so much of the crop, stock provisions, money on hand or due said estate as shall in their opinion be sufficient to support her and her family one year from the death of her said husband and make due return to the next term of this Court.

April Term 1907

Page 565

We the undersigned householders, after being duly sworn, have proceeded to set apart to Mrs. Izzie Oneal widow of D. W. Oneal, deceased, so much of the crop and provisions and money on hand or other assets as may be sufficient in our opinion, to support her and her family one year from the death of her said husband. We set apart to her for said purpose the following articles to wit: 10 Bbl of corn, we found on hand 100# of meat, and we agree her to have 15 Bbl more corn & 400# more meat, 50# lard, thirty dollars worth of sugar & coffee, Fifty dollars for clothing and other things, that she may need, provided she can collect it out of some notes which we found, which amount to about $675.00 which are not due until next Jan.

W. T. Sherron
W. M. Neal Commissioners
T. W. Duffer

Which being seen understood and unexcepted to us in all things confirmed by the Court.

May Term 1907

Page 567

Ordered by the Court that C. B. Denning be and he is hereby appointed Administrator of all and singular the goods and chattels rights, and credits of the estate of Deri O'Neal decd, thereupon came into open Court, and entered into and acknowledged the bond payable to the State of Tennessee in the penal sum of One Thousand Dollars conditioned as the law directs where he was duly qualified and letters of Administration ordered issued to him.

Vol. 21

March Term 1910

(March 22)

Page 330

The Clerk this day presented a final settlement had with C. B. Denning Admr. Of the estate Deri O'Neal dec'd which is ordered recorded in Inventories & Settlements for 1910.


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