Will of James Henry Smith, Lowndes, Alabama http://files.usgwarchives.net/al/lowndes/wills/jhsmith.txt ================================================================================ USGENWEB NOTICE: All documents placed in the USGenWeb Archives remain the property of the contributors, who retain publication rights in accordance with US Copyright Laws and Regulations. In keeping with our policy of providing free information on the Internet, these documents may be used by anyone for their personal research. They may be used by non-commercial entities so long as all notices and submitter information is included. These electronic pages may NOT be reproduced in any format for profit. Any other use, including copying files to other sites, requires permission from the contributors PRIOR to uploading to the other sites. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. This file was contributed and copyrighted by: Rae Venable Calvert ===================================================================== September 2002 Will of James H(enry) Smith Lowndes County, Alabama Will Book C, pages 128 - 132 Dr. P. H. Owen stated in a deposition after his father-in-law's death in 1867 that James H. Smith had three plantations and owned stock in a gold mine in South Africa and was worth about $500,000. STATE OF ALABAMA LOWNDES COUNTY I, James H. Smith, of the County of Lowndes in the State of Alabama, being of sound mind and disposing memory, do make, ordain, and declare this my Last Will and Testament, revoking all others heretofore made. Item first - I give, bequeath and devise to my daughter, Martha J. Smith, this tract of about five hundred acres of land, situate[d] on the west side of my plantation in Township fifteen, Range sixteen, viz: The northeast qtr and East half of the northwest qtr of section thirty three, the south qtr and East half of the south qtr of section twenty eight and that part of the west half of the northeast qtr of section twenty eight and near the gate of Benj. J. Smith not heretofore sold, and shall constitute & is herein called Lot Number One. All the residue of the land forming my plantation in said township fifteen, Range sixteen being about one thousand acres, shall constitute and is herein called Lot Number Two. All the land mentioned or referred to in these said two lots Number One and Two and all my stock of horses, mules, cattle, hogs, and sheep, gin, wagon, carriage, farming utensils, tools, furniture, plate, provisions, food, and all things on and belonging to my plantation & necessary or properly for its management & cultivation, shall be kept together, used, worked and employed under the direction of my executors or if they shall refuse to accept, die or resign, then of my administrators for the common use and benefit of my beloved wife, Eliza A. Smith, and my two daughters, Martha J. Smith & Sally Hart Smith, for their common support and the education of my youngest daughter, Sally Hart Smith. My executors or administrators, as the case may be, are authorized and directed to sell at such time and in such manner as they may deem best, the crop grown upon the plantation and such other things as may well be spared, always retaining an ample supply for the family. The proceeds of my said plantation after deducting the expenses of administrators, managing and carrying on the same & the provisions for the support, education of my youngest daughter, Sally Hart Smith, and comfort of my said wife and two daughters, Martha J. and Sally Hart, is to be considered net profit in which for the purpose of division my wife and two children are to have equal shares so long as all the property is kept together and when the share of one is taken off, the share of the others are also equal, but if only part of a share is taken off, the other part remaining, the share of the one for whom it remains to be increased in that proportion. Item Second - I will, devise and direct that if my wife shall again marry, that at the time she so marries, one half of the land mentioned in Lot Number Two and one share in the net profits of the plantation and one third part of the stock -- stock of horses, mules, cattle, hogs, and sheep and furniture, provisions, feed, and other things on and belonging to the said plantation, shall be assigned and set off to her, my said wife, as her full share and interest in my estate to be held by her to her sole and separate use and benefit during her natural life only, and at her death, the said land and other property so assigned to her to return and become part of my estate for distribution among my children. After the property and shares as hereinafter directed shall have been assigned and set off to my children and their issue, the residue of the property directed to be kept together shall remain and be in the possession of my said wife if then living and unmarried and under her management and control if she shall remain unmarried during her natural life only and at her death, to return and become part of my estate for distribution among my children. On the death of my said wife, the property allotted and set off to her or if before the property has been set off to her, then same as directed to be assigned to her in case of her marriage, shall be equally divided among all my children, Mary R., Martha J., and Sally Hart, if living and the living issue of the deceased, the issue of a deceased child, in all cases to take the part to which its parent would have been entitled to if living, provided, always, that the property of every description and character willed, bequeathed, or devised in this will and for my said beloved wife is to [be] received by her at her own election in lieu of the provisions of ten thousand dollars secured to her out of my estate by marriage contract executed by us previous to our intermarriage and in lieu of all other interest and rights of her whatever in or to my Estate. But should she elect not so to receive the legacies and bequests herein given to and for her in lieu of all other interest and rights, the legacies and bequests herein given to and for her are to be null and void and all the property herein willed, bequeathed, or devised to or for her is to be divided and assigned as in case of her death. Item Third - I will, bequeath and direct that when my daughter, Martha J. Smith, shall arrive at the age of twenty one years or marry, the land in Lot Number One mentioned or referred to, together with the share in the net profits of the plantation or property directed to be kept together, shall be assigned and delivered to her at the same [time she] shall be paid Two Thousand Five Hundred Dollars in cash to compensate for the inferiority in the value of the land to be held to her sole and separate use. But if she should die before she arrives at the age of twenty one years or marries, then on her death, the land and shares in profits in this item and mentioned shall be allotted to my other living children or their issue living at the time, the share to one twenty one years or married to be delivered, that for one under that age and unmarried to remain with the property kept together for her. Item Fourth - I will, bequeath and direct that when my daughter, Sally Hart Smith, shall arrive at the age of twenty one years or marries, one half of the land in Lot Number Two mentioned or referred to, together with the share in the net profits of the plantation or property directed to be kept together, shall be assigned and delivered to her to be held to her sole and separate use. but should she die before she arrives at the age of twenty one years or marries, then on her death, the land and shares in profits in this item and mentioned shall be allotted to may other living children or their issue living at the time the share to one twenty one years or married [is] to be delivered and the share of one under twenty one and unmarried to remain with the property directed to be kept together for her. Item Fifth - I further will and direct my executors and administrators as the case may be, to sell all the residue of my property of every character and description, real, personal, or mixed not hereinbefore devised, which can be fairly sold at such times and p laces at public or private sale, on such terms for cash or on credit as they may deem best and no order or proceeding in court for that purpose shall be necessary and that they are authorized to make and deliver all deeds of conveyance and other instruments which may be necessary and proper for the sale or conveyance of property and shall collect all monies due me or to which I may be entitled or have a right, and after the payment of all my just debts and the expenses of administration, divide the proceeds of such sales, the property unsold, if any, and all monies and other things that may be received or come to their possession or power among my three children, Mary R. Owen, Martha J. Smith, and Sally Hart Smith, if then living, and if one or more shall have died, then to the survivors and the then living issue of the deceased, the issue of a deceased child taking the part of which its deceased parent would have been entitled if living. This item shall include for distribution as herein directed all property of every description and shade of title or claim not hereinbefore devised which I now have or may have at the time of my death. All property herein devised shall be held by each as her sole and separate estate and to her sole and separate use. Thus I have endeavored to make a fair and just disposition of my whole estate, to provide for the support and comfort of my beloved wife, and after that to divide all my property equally between my three children, Mary R. Owen, Martha J. and Sally Hart Smith, and their use. And when I have herein mentioned, or spoken of child or children, daughter or daughters, or issue, it was intended for one of these three and their issue. To my grandson, William E. McGehee, son of my deceased daughter, I have given no legacy, made no provision, and have not hereinbefore mentioned or referred to him in any way. The reason is that before the death of his mother, I gave to her an equal share of my Estate, which he has inherited as well as a good Estate from his deceased father, making his property ample for all useful and reasonable purposes, and I do hereby nominate and appoint my Brother, Benj. J. Smith of Lowndes County and my nephew, J. B. Mason, and my son in law, Dr. P. H. Owen of Montgomery County, executors of this, my last Will and testament. In witness whereof, I have hereunto set my hand and seal this 16th day of August in the year of our Lord one thousand eight hundred and sixty six. Witnesses: Jas. H. Smith S. W. Davis B. W. Mason In probating the Will, on 19 February 1868, B. W. Mason appeared before the Lowndes County Court (Judge James Graham) and under oath stated that he and S. W. Davis were each subscribing witnesses to the last will and testament of James H. Smith, deceased, late an inhabitant of said county, that said James H. Smith had signed and executed the instrument on the date it bears as subscribing witnesses to the same in the presence of the Testator, that he was of sound mind and disposing memory and, in the opinion of the deponent, fully capable of making his Will at the time the same was so made, that he was of the full age of twenty one years and upwards on that date..