Estate of James W McCracken

Estate of Joseph W. McCracken
Submitted by Marilyn Szum

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
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
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
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
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.
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
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. 



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