Estate of James W McCracken

The Estate of James McCracken of Habersham county, Georgia

Court Minute Book 6, Page 2, Habersham County, Georgia

Minutes Court Ordinary, September 1859

I, Joseph W. McCracken, do solemnly swear that this writing presented contains the true last will

of the within named James McCracken, late of said County, deceased, So far as I know or believe,

and that I will well and truly execute the same by paying first the debts and then the Legacies

contained in the said will, so far forth as his goods & chattells will thereto extend and the law requires

me, and that I will make a just and true appraisement of all such goods and Chattels and a just and true

return thereof when thereunto required so help me God.

J. W. McCracken

Sworn to and subscribed in open court this 5th Septewmber, 1859.

C. H. Sutton, Cny. (?) Ordinary

The last will and testament of James McCracken, Decd, who died on the Eighth day of August, 1859,

having been proved upon the oath of P. Martin, Ricd. Jones & Peter King--Witnesses to said will and

of Joseph W. McCracken, Executor therein named, It is considered by the Court that the probate of

said will is sufficient and that the same be admitted to record and that letters Testamentary do issue

to said Joseph W. McCracken The Executor in and by said will named and appointed, and that it is

further ordered that Wm. S. Meeks (?), Moses Ayres, Richard Jones, Amos Jackson, & M.M. Sanders \

be and they are here appointed appraisers of said estate.

Georgia, Habersham County

Before me, C. H. Sutton, Ordinary of said County, in open court came Philip Martin, Richard Jones, and

Peter King--who being duly sworn, depose and say that they saw James McCracken, the Testator, Sign,

Seal, and Publish and declare this

Page 3 Minutes Court Ordinary, September, 1859 (continued)

writing now presented as his last will and testament freely voluntarily and of his own accord and

without any compulsion and undue influence

That at the time of the signing of the same the said James McCracken was as they believed of sufficient

(stricken out is: sound and disposing) mind and memory to make a will that deponent

signed said will as witness in presence of the Testator and at his reguest and in presence of each other.

Phillip Martin

Richard Jones

Peter King

worn to and subscribed before me in open court this fifth day of Septembewr, 1859.

C. H. Sutton, Ordinary

Georgia, Habersham In the name of God, Amen. I James McCracken of the County and State aforesaid,

being advanced in age and weak in body, but of sound and disposing mind and memory, and knowing

the uncertainty of life deem it advisable and proper, that I should while in life, make a disposition of the

property, both real and personal, with which it has pleased a divine Providence to bless me, have and do

hereby make publish and declare the following writing to be and contain my true last will and testament

hereby revoking all other will or wills by me heretofore made.

Page 4 Minutes of Court Ordinary, Septemeber, 1859

(continued)

Item 1st. In the first place I commit my soul to God who gave it to me, and my body to the dust from

whence it came to be buried after my death in a decent and becoming like manner, at the discretion

of my Executor and friends.

Item 2nd. I give and bequeath unto my beloved wife Lucinda McCracken, for her use and benefit

during her natural life, or widowhood, and after her death or marriage, should she again marry, then

to my son, Caleb McCracken, his heirs and assigns, Lot of land Number One Hundred and Nine in the

tenth District of said County, containing two hundred and fiftly acres whereon I now live, also all that

part of Lot number Eight in the twelfth District of said County on the South Side of the Mill Creek the said

Creek to be the line all the way said, also all that part of lot number nine in the (12) twelfth District of Said

County, on the South Side of Said Mill Creek, also fifty acres off lot Number One Hunderd twelve in the

tenth District of said County on the side adjoining to lot No. 109 first aforesaid in said 12th District.

Item 3rd. I give and bequeath to my son John McCracken all that part of lot of land number Eight in the

(12th) twelfth District of said County on the North Side of the Mill Creek, the Said Creek to be the line

all the way through and to his heirs and assigns with the exception that my son Joseph Wilson McCracken

is to have a right to use and keep up the Saw-mill on Said Creek and lot, for his own use and benefit,

equal with my said son John, that is they, my said sons John and Joseph W. are hereby made equal in

the use of Said Saw Mill.

Item 4th. My will and desire is that at and after my death that my Executor Sell either at public or private

sale whichever he may think most advantageous all the balance of Said lot of land number one hundred and

twelve, in the tenth District of Said County after deducting the fifty acres herein before disposed of.

Page 5 Minutes of Court Ordinary September, 1859

(continues)

Intem 4th. (continued)

and which contains two hundred acres more or less and divide the proceeds of such Sale Share and Share

alike among all my children.

item 5th. I give and bequeath, unto my beloved wife Lucinda McCracken for her use and benefit during her

natural life or widowhood and at or after her death or marriage should she again marry thent o my sons and daughters by my said wife Lucinda to be sold if they cannot be otherwise equaly divided, all the negro slaves which I may

die Seized and Possessed of and those which I ("now" sricken out) have, now, to wit, Lucy, a female about fifty years old, Betsy, a female Slave about thirty years of age, Mary a female slave about fifteen years old, George Anna, a female slave about twelve years old and John, a male Salve about fifteen months old and the increase of said female

slaves, to be divided as aforesaid and share andshare alike, among and between all my Said sons and Daughters,

which I have by my last wife Lucinda McCracken, and their heirs and assigns after the death or marriage again as aforesaid, of my said wife Lucinda.

Item 6th. I give and bequeath at and after my death and after the payment of all my just debts and other

expenses attending this my last will and testament all the residue of all the personal property, of whatsoever

kind, not disposed of in ;the preceding 5 items of this my Last WIll and Testament, that I may die seized and

possessed of in my right to my beloved wife Lucinda for her use and benefit and for the use and benefit of my

said son Caleb during the natural life or widowhood of the said Lucinda and at and after her death or marriage

should she again marry, if there should be a residue of such personal property, then to my son Caleb, his heirs

and Assigns.

Item 7th. (continued)

And lastly, for the purpose of carrying into execution and full effect, this my last will and testament, I do hereby

Constitute, Ordain and Appoint my son Joseph Wilson McCracken My Executor and

Page 6 Minutes of Court Ordinary, September 1859

(Continured)

Item 7 (continued)

desire him to execute after my death, this my last will and testament in all its requisites.

In testimony whereof, I, James McCracken have hereunto set my hand and seal in

the presence of the subscribing witnesses hereto and who I request to witness the

same, this twelfth day of August, 1856.

(seal) James McCracken

Signed Sealed published acknowledged, and declared by the Testator to be his last

will and testament in the presence of undersigned winesses who here unto subscribed

their names in the presence of the Testator and of each other.

Richard Jones

Peter King

Philip Martin

The Court adjourned till Court in Course

C.H. Sutton, Ordinary

Georgia

Habersham County Ordinary Office

Sept 20th 1859

Ordered that Joseph W. MCCracken Exr of James McCracken have leave to see all the personal

property of said decd. by giving ten days notice of the time and place of sale at three or more

public places in the County. C. H. Sutton, Ordinary

Page 24 Book 6 Minutes of Court of Ordinary, may 1860.

To the heirs and Legatees of James McCracken, decd, upon having the foregoing caveat and petition

it is ordered that Joseph W. McCracken the Execuor in and by the Last Will named of the said Decd, do

show cause at the next term of this Court to held on the first Monday in May, next, 1860, why said Will

should not be revoked annuled and set aside and intestacy declared and that they be Served with a

Copy of the said Caveat and petition and of this order twenty days previous to the said May term of this Court.

Page 25 Book 6 Minutes of the Court of Ordinary, May term. 1860.

Georgia

Habersham County The Court met according to Law Monday 6th day of May 1860 Present J.G. Porter, Ordinary of the said County.

Tuesday, May 7th, 1860

Cary Vaughan estate caveator Caveat and (anneced) to will of said Deceased, May Term 1860.

Joseph W. McCracken, Exr. of

James McCracken, deceased.

Upon hearing the above State Case upon the proofs and afreement of Council it is ordered that the Said

Caveat be overruled and that the said Will be considered and adjudged to have been proved in Solemn

form. It being the opinion of this Court, 1st, that it was signed in the presence of the witnesses to the said will

and that it was signed by the Witnesses to the said will and that it was Signed by the Witnesses in the presence

of the Testator.

2nd, that the Testator was of Sufficient mind to make a Will at the time of the execution of the said WIll,

3rd. and that there was no undue influence now (used) over the Testator during the Execution of Said Will, that the proofs of incapacity and imbecility of mind in this case are not sufficient in Law to authorize the Setting aside of the Said will.

The Court adjourned till Court in Course.

John G. Porter, Ordinary

Georgia

Habersham County Court of Ordinary, April Term 1860.

In the matter of the last will and testament of James McCracken deceased now at this time comes Cary Vaughan, Haywood English, in right of his wife Salley English, all heirs at Law and distributees of the Estate of said deceased and their attorneys W. L. Woffard and C. H. Sutton enter their Caveat and Solemn protest before said Court against the further execution of the supposed or pretended Last Will and Testament of said Decased on the following grounds and for the following reasons to wit, First: Because at the time of Executing the said pretended or supposed will, the said Deceased was not of sound and disposing mind and memory, Second: Because at the time of executing the last or pretended will, the said Decd. was laboring under the influence of alcohol and intoxicating drinks and was too much Intoxicated and drunk to be capable of making a will or Disposing of his property or transacting any business. Third: Because at the time of the Executing the said (author?)'s children by his last wife who by undue influence and Coercion procured said will to be made whereby they took the larger portion of the estate of the said Deceased. to the amount

(?) exclusive of your Caveators and other children of the said deceased by a former wife. Fourth: Because at the time

of the execution of the Supposed or pretended will, was not signed by the Testaor in the presence of the winesses nor attested by witnesses in the presence of the Testator as required by law and for these reasons your Caveators say that the said, pretended last will is not the will of the said James McCracken, deceased and hould not stand in law or be executed as such and pray an order of the said Court setting the same aside and that Joseph W. McCracken the Executor of the said pretended will named may be directed by order of Said Court to (desist? ),and cause the further execution of said will to (desist) and this end your caveators ((request?) order of this (caveat?) calling upon and directing the said Joseph W. McCracken the Executor named in the said pretended will to probate to (?Progress?) in solemn form.

W.T. Wofford

C. H. Sutton Attnys.