COURT: McElrath court cases & depositions Submitted by: David A. McElrath ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/ky/kyfiles.html ************************************************ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Judgment -- no filing date shown Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 20-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is typewritten, with some handwritten insertions and corrections. These notations will be set within quotation marks. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. There is no filing date shown for this judgment, through from other dated documents referenced within, it must have been filed sometime after March 6, 1899. ++++++++begin transcription++++++++++++++++++ Marshall Circuit Court W.J. McElrath etc. Plaintiff Vs. ------ JUDGMENT. ------ C.H Wrather etc. Defendents. This day this action came on for trial, upon the exceptions to the report of the Auditor which report was filed herein on March 6th. 1899, and the court being sufficient ly advised, sustained said objections to said report and finds that the children of said decedent Thomas McElrath had received the following and only the following advancements from their father Thomas McElrath deceased in his life time, the following sums to-wit:- That George M. McElrath had received advancements worth and of the value and to the extent of $1680.00 That John F. McElrath had received advancements worth and of the value and "to the" extent of $1680.00 That William J. McElrath had received advancements worth and of the value and to the extent of $330.00 That Sarah Beach had received advancements worth and of the value and to the extent of $1680.00 That Martha J. Wrather had received advancements worth and of the value and to the extent of $480.00 That Mary "P." Smith had received advancements worth and of the value and to the extent of $525.00 That And it is now ordered and adjudged by the court that in the settlement of this estate of decedent Thomas Mc- Elrath the plaintiffs and defendants herein be and they are hereby charged with advancements advanced to them by said Thom as McElrath in his life time as follows:- That George M. McElrath be and he is hereby charged with the sum of $1680.00 That John F. McElrath be and he is hereby charged with the sum of $1680.00 =============================================================[end page 1] That William J. McElrath be and he is hereby charged with $330.00 That Sarah J. Beach be and she is hereby charged with the sum of $1680.00 That Martha J. Wrather be and she is hereby charged with the sum of $480.00 Mary P. Smith be and she is hereby charged with the sum of $525.00 It is further ordered and adjudged by the court that said George M. McElrath, John F. McElrath, and Sarh [sic] Beach shall receive nothing and take no part of the estate of the decedent Thomas McElrath until the said Martha J. Wrather, Mary P. Smith and W.J. McElrath are "each" made equal to them, and receive out of the proceeds of said estate enough to make each of them equal with the said George M. McElrath, John F. McElrath and Sarah Beach. It is further adjudged by the court that the said Mary P. Smith shall receive nothing until the said Martha J. Wrather and W.J. McElrath have each received a sufficient sum to make each of them equal to the said Mary P. Smith and that said Martha J. Wrather shall receive nothing until W.J. McElrath has received a sum sufficient to make him equal with the said Martha J. Wrather,. It is further ordered and adjudged by the Court that The cost of this action exclusive of Attorneys fees incurred in the prosecution of this case up to and including March 28 1898 be paid by the said Mary P. Smith and Marth J. Wrather and that same be charged to them, and deducted from their distributable share of the proceeds of the estate of said decedent Thomas McElrath. It is further adjudged by the court that all costs in the prosecution of this case since the 28th. day of "October" 1898 including the costs of dividing and selling the land ordered sold herein be charged to the whole estate, and =============================================================[end page 2] be paid out of the funds derived from the sale of said lands. except the attorneys fees allowed herein, and that the attorney fees heretofore allowed herein to J.W. Dycus, and John G. Lovett shall be paid by W.J. McElrath, and the attorney fees heretofore allowed to Reed, Greer and Oliver shall be paid by said Mary P. Smith and M.J. Wrather, and said Reed, Greer and Ol- iver are now hereby allowed a addition attorney fee of $150.00 which shall also be paid by said M.P. Smith and M.J. Wrather but it is expresly adjudged that no part of the attorney fees allowed to Reed, Greer and Oliver shall be charged to or paid by W.J. McElrath, neither shall any part of the fees so allowed said J.W. Dycus or J.G. Lovett be charged to M.P. Smith or M.J Wrather. It is further adjudged by the Court that all that part of R.Haydens report as Auditor herein filed on March 6th. 1899, which is in conflict with this judgment of the Court be and the same is hereby over ruled and set aside asn held for naught but all that part which is not in conflict with this judgment is now hereby confirmed. It is further ordered that Samuel Graham make report on or before the 11th. day of the present term of this Court and show state and show the amount of money which has come into his hands derived from the sale of the land in this case together with any other money that has come into his hands as the Commissioner of this Court belonging to the estate of Thomas McElrath deceased, also show what amount and to whom and by what authority he has paid out any part thereof, like wise show by said report th[e] net balance now in his hands belong ing to said estate. =============================================================[end page 3] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Judgment filed 28 Mar 1899 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 20-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is handwritten on what appears to be ruled ledger paper. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ W J McElrath &c Plffs || vs || Judgment C H Wrather &c Defts || This case coming on for further hearing and it appearing from the exhibits and deposi- tions on file in the case that Thomas McElrath made unequal advancements to his children and that at his death he left us personalty-- and it further appearing that his remaining lands cannot b divi- ded so as to equalize his children in his es- tate and that he owned the following described lands lying in Marshall and Calloway Counties Kentucky towit Lot No 1 containing 47 acres and 35 poles on the East side of North East Quarter of Sec 12 of T3 R3E beginning at the Northeast Cor- ner of said quarter a black jack (See "A" and index in plat) thence S 4°5' E of magnetic meridian 15 1/10 poles to "P" a stone south 1 hickory and 1 Post oak and 1 black oak pointers, the northeast corner of W H McElraths ten acres thence S 85°53' W 24 2/10 poles to "C" a stone with 2 black gums and 1 water oak pointers thence S 4°5' E 66 1/10 poles to "D" a stone with 1 black jack pointer thence N 85°53' East 24 2/10 poles to "E" a stake in Section line thence S 9°5' E 80 3/10 poles to "F" a stone =============================================================[end page 1] the S.E. corner of quarter thence S.85°53' W 54 4/10 poles to "G" a stone with 2 hickories and 1 black oak pointers thence N.4°5' W 162 1/10 poles to a stone with one sycamore and 2 black oak pointers on County line, thence N. 86°25' E. 56 4/10 poles to the beginning. Also Lot No 2 containing 47 acres and 3 poles lying in the middle part of the N.E. Quarter of Section 12 T3R3E. beginning on the N.W. corner of Lot No 1 a stone with 1 sycamore and 2 black oaks pointers on the Calloway and Marshall County line (See H in plat) thence S. 4°5' E of Magnetic Meridian 162 1/10 poles to "G" a stone with two hickories and 1 black oak pointers: thence S 85°53' W 50 4/10 poles to "L" a stone thence N. 4°5' W 144 6/10 poles to "K" a stone thence N 86°25' E. 36 9/10 poles to "J" a stone thence N.4°5' W 17 1/2 poles to "I" a stone with 1 post oak and 1 black- oak pointers in County line. thence with County line N. 86°25' 13 1/2 poles to the begin- ning. Also Lot No 3 containing 54 acres and 5 poles in the west part of the N.E. quarter of Sec 12 T3 R3E. beginning at the SW corner of said quarter a stone with 1 black oak and spanish oak and 1 sassafras pointers =============================================================[end page 2] (See "N" in plat) thence N 3°24' W of Magnet- ic Meridian 133 3/10 poles to "N" a stone with 2 maples pointers the SW corner of the 4 acres and 143 poles of the Dower thence N. 86°14' E 27 poles to "O" a stone 3 maples and 1 sasafras and 1 red oak poin- ters thence N. 3°21' W 29 poles to "P" a stone with 2 pot oaks pointers on the County line thence with county line N. 86° 25' E 17 7/10 poles to "R" a stone thence S. 4°5' E 17 8/10 poles to "S" a stone from which a post oak pointer bears N. 81° E 17 links. The stone is quite near bank of branch thence N. 86°25' E 7 poles to "K" a stone thence S 4°5' E 144 6/10 poles to "L" a stone thence S85° 53' W 53 9/10 poles to the beginning. Also Lot No 4 containing 3 acres and 30 poles being part of the dower in the Southwest corner of the S.E. Quarter of Section 1 T3 R3 E beginning at ["the" is scratched out] a stone on the County line from which a walnut pointer bears S. 31 3/4° W. 2 poles 8 1/2 links (See "Y" in plat) thence N. 0°25' W 23 4/10 poles to "BP" a stone thence N. 86°25' E 21 8/10 poles to "CC" a stone thence S. 0°25' E 23 4/10 poles to "DD" a stone in County line thence S 88°25' W 21 8/10 poles to the beginning =============================================================[end page 3] Also Lot No 5 containing 19 acres and 113 poles and is also part of dower allotted in Nov- ember 1898 being in the SE corner of the S.W. quarter of Sec [?] T3 R3 E. beginn- ing at the S.E. corner of said Quarter a stone on the County line from which a walnut pointer bears S31 3/4 ° W. 2 poles 8 1/2 links (See "Y" in plat) thence with 2 post oaks and 1 Spanish oak pointers Thence S 85°10' W 53 poles to "AA" a stone in Jo McElrath's field crossing McElraths fence 149 2/10 poles to "Z" a stone on County line with a fore and aft white oak and 2 black gums pointers thence with County line N. 86°14' E 53 poles to the beginning. Also Lot No 6 containing 62 acres and 114 poles partly in N.E. quarter and partly in S.E. quarter of Sec 1 T3 R3 E. beginning at "V" in plat the Northwest corner of said Southeast Quarter and Southwest corner of said N.E. quarter a stake with 2 black oaks pointers thence N. 0°25' W. 15 6/10 poles to a stake and stone inside of Jo McElrath's field at "U" in plat. =============================================================[end page 4] thence N. 85°34' E 108 poles and 6 links to "J" a stone with small sassafras poin- ter thence S 3°54' E 91 2/10 poles to "Q" a stone, Ephraim Jones' Northeast corner thence S 86°25' W. 134 poles to "W", a stone near a small drain. thence N. 0°25' W 89 6/10 poles to the beginning. And he also owned the land covered by the dower of his widow Mary Ann McElrath com- prising all that part of the Northwest quar- ter of Section 12 T3 R3 E. except 19 acres in the N.W. corner of said quarter which is owned and occupied by W.W. Youngblood Also 19 acres in the S.E. corner of the S.W. Quarter of Sec 1 T3R3E and being a parcel of land on which the late resi- dence of said decedent stands Also 3 acres in S.W. corner of the S.E. quar- ter of Section 1 T3 R3 E. Also 4 acres and 143 poles in the N.W. corner of the N.E. quarter of Section 12 T 3R 3E Twenty two (22) acres of said lands are in Marshall County and the balance in Calloway County and are so situated that they unite in one body. ["And he also" is scratched out] Now therefore it is adjudged by the Court that in order to pay the costs and expenses of this suit and to equalize his children, so far as the same can be done and pay the back taxes on same =============================================================[end page 5] it is adjudged by the Court that said lots Nos 1,2,3 and 6 above described be sold absolutely as here- after ["described" is scratched out] directed and that the said lands allotted to Mary Ann McElrath the widow be sold subject to her ["dower" scratched out] life estate therein to the highest and best bidder at the Court House Door in Benton Ky on the 1st day of some Circuit or County Court held for the body of the County after having been adver- tised by written notice posted up at the Court House door in Benton Ky and at four other public places in the vicinity of the lands to be sold for 15 days just prior to the day of sale describing the lands [?????] That said Lots of land be sold and neads be made separately and on a credit of six months by Samuel Graham Master Comm of this county who is ordered to carry this judgment into execution that he take bonds from the several purchasers with good and sufficient sureties having the force and effect of a judgment and bearing interest from the day of sale and retaining a lien on said lands to secure the purchase price and that he report to court his action herein =============================================================[end page 6] But it is now ascertained and so appears to the Court that the lots of land above described Lots Nos 1,2&3 and nearly all of the land covered by the widow's dower lys in Calloway County. Therefore the foregoing judgment is so far modi- fied that said Commissioner will and he is so ordered to sell said Lots Nos 1,2&3 as above described and also the said dower land, the latter subject to the life estate of the widow Mary Ann McElrath at the Court House door in the town of Murray Ky on the first day of some Circuit Court or County Court held for the body of Calloway County in the same way on the same manner and after advertising for the same and manner and ob- serving all the directions and require- ments found in the first part of this judgment. And that he sell Lot No 6 at the court house door in Benton Ky as herein before directed. =============================================================[end page 7] Received of Samuel Graham Special Commissioner in this action Three Hundred Dollars Their for allowed by the Court herein to be taxed against ["C.H. Wrather" scratched out] Martha Wrather & Mary P. Smith. This august 2d 1900 Reid Greer & Oliver W.J. McElrath &c || vs. || Judgment. || C. H. Wrather &c Filed in open Court Mch. 28, 1898 [note: I think this should be 1899] att: P.H. Thompson Clk Rec. O.B. 15 Page 527 =============================================================[end page 8] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Judgment filed 14 Oct 1898 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 20-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is handwritten on what appears to be ruled ledger paper. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ W.J. McElrath & others plaintiffs against || Judgement Chas Smith & others defendants This day this cause came on to be heard and the Court being sufficiently advised it is considered and adjudged by the Court that the father Thomas McElrath was not of sound mind on the 25th of April 1892 when he signed the deed of that date to defendants Mary P. Smith and Martha J. Wrather for "The Home Place" containing three hundred acres of land named in plaintiffs petition, and also the same when he signed the deed to the plaintiff W.J. McElrath for 60 acres named in plaintiffs petition, and it is considered and adjudged by the Court that when said Thomas McElrath signed said deeds he was greatly demented from age and disease, being ninety one years old and that he did not have mental capacity to understandly know what he was really doing or the nature and effect of the act nor was he capable of attending to the ordinary business of life, and by reason of the want of capacity in said donor to =============================================================[end page 1] to execute said deeds of gift it is now adjudged by the Court that the same be and they are hereby set aside and held for naught. And it is further adjudged that the estate of said Thomas McElrath deceased be and the same is directed to be settled and divided according to the principles of the law the same as if said deeds had never been made. And to this end all ad- -vancements made to any of his six children by said Thomas McElrath should be taken into consideration and with a view to the final adjustment, R. Hayden is hereby appointed auditor to ascertain all said advancements by administrator already taken in this case as to advancements to said children and by additional evidence he may take which he is given power to do, touching such advancements, which =============================================================[end page 2] he may take at the instance of any of the children or their attorneys upon reasonable notice given to the adverse attorneys. And that he will on or before the first day of the next term of this Court audit and make out a full and complete state- -ment of the advancements made to each child, when made and the value thereof and report the same to the Court, and with a view of the ultimate sale of the real estate for division - said auditor is directed to have copied and filed in this case the deeds of Thomas McElrath dec'd to the aforesaid lands so as to show more definitely the description thereof. And it is further adjudged that Mary McElrath the widow of Thos. McElrath dec'd has a homestead exemption in said home tract of three hundred acres of the =============================================================[end page 3] estimated value of one thousand dollars, which can be and the same is directed to be laid off to her for life out of said 300 acres so as to include her said residence and Jack Magness, T.H. Harrison, A.T. Bourland and are appointed this Court Commissioners to go upon said land and allot to said Mary McElrath a her homestead after first being duly sworn to discharge their duties - that they report their acting and doing to the Court. R. Hayden was duly sworn in open Court to discharge his duties as au- -ditor [crammed into the line here is the following note: That the plaintiff recover their costs up to this time herein expended that fifa ???? against defendants] All further matters not now adjudicated are continued. W.J. McElrath &c vs || Judgment Chas Smith &c Filed in open court Oct-14-1898 att P.H. Thompson Clk Rec'd in O.B. No 15, Page 402. =============================================================[end page 4] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Auditor's Report Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 14-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is handwritten on what appears to be ruled ledger paper. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. There are accounting type entries which have been attempted to reproduce. Underlines which indicate sums are shown as ---------, and double underlines which indicate grand totals are shown as ===========. Page breaks are also shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ To the Hon L.D. Husbands presiding Judge of the Marshall Circuit Court The undersigned as auditor in the cause of Mary P. Smith and others Plaintiffs against C.H. Wrather and others Defendants the cause having been referred by orders of said Court at the September Term 1898 on the 14th day of October of said term by the Judge thereof; to ascertain the amount of advancements that Thomas McElrath had made to any and all of his six children to wit John F. McElrath, William J. McElrath, George M. McElrath, Mary P. Smith Martha J. Wrather and Sarah Beach during the lifetime of said Thomas McElrath in the following manner 1st The time when advancements were made. 2nd The value of said advancements at the time same were made. 3rd And of what each and every advancement consisted. 4th To ascertain the amount of Realty and Personalty owned by Thomas McElrath at the time of his death and the value thereof. 5th To apportion, Divide and settle the Estate of said Decedent among his six children according to the principles of the law. In discharge of said duty and in =============================================================[end page 1] obedience to the herewith attached orders of Court this Report is based. The task is onorous; the duty a particular one, occasioned in a great degree by the conflicting testimony, together with the vague indefinite manner of placing values and in determining dates. Although authority was given to take additional proof if needed yet no one was found who could give such proof and the same witnesses were not recalled to rehearse that which was before us. Shall a mean estimate of the values and dates s to the personalty advancements made constitute the basis?. And shall each child be charged with each advancement received this date based upon this value; together with Interest, Rents, Profits derived from labor of Slaves &c from this date until the final distribution as per Order of Court October 14th 1898? After a careful study of the proof we find it discloses the following facts First That the said Thomas McElrath had made advancements to all of his six children during his lifetime Second That said advancements consisted =============================================================[end page 2] of Lands and Personalty Third That the date of the advancements were made during the period from 1856 to 1862 in Personalty, in Land from 1861 to 1871 as per date of Deeds filed herewith Fourth That there were greater advancements made to some than to others. Fifth That some of his six children never received any advancement in Land during the lifetime of their father Thomas McElrath. Sixth That decedent Thomas McElrath owned at the time of his death 385 acres of Land more or less lying in Marshall and Calloway Counties. Seventh That his widow (as per order of Court) Mary Ann McElrath was entitled to Dower in the Home Place of 300 acres more or less including the late residence of decedent not to exceed $1000.00 in value. Upon this basis the foregoing tabulated report is made. Proof shows that decedent during his lifetime and about (mean date) 1860 gave to each of his six children as and advancement 1 Horse Bridle & Saddle valued at $80.00 =============================================================[end page 3] Therefore in this specific advancement they were all equal each with the other. Also that said decedent during his lifetime gave to each of his six children one Negro and estimated in value from $100 to $800 and as to number of slaves to each all were still upon an equality in his second specific advancement the one with each and all others. In view of the "Emancipation Proclamation" by which after January 1st 1863 whereby Slaves were then and forever afterwards, so far as this distribution is concerned, made Citizens and not property as they were at the time the advancements were made. Therefore it may be safely said that on January 1st 1863 none of his six children owned any of this Character of property given them as an advancement during the lifetime of their father Thomas McElrath. Therefore in this particular each was equal with all the others. Hence in the number and value =============================================================[end page 4] of the Horse, Bridle Saddle and the number of Slaves given as advancements all were equal and each was upon equality with the other. But as to difference in value, that will be referred to further on. Hence in the two specific advancements set out above all of said six children of Thomas McElrath on the 1st day of January 1863 were upon equal footing. It is alleged that at the time of the death of Thomas McElrath he owned in Personalty Money, Notes, Accounts amounting to $1000.00 in value or more. But proof fails to substantiate the allegations and if said property was on hand at the time letters of administration were granted proof fails to disclose what disposition was made of said property. again In setting forth the advancements made to each of said six children in a tabulated form each advancement to each child is given in Black Ink and footed showing the total of advancements made to each, Interest, Rents Profits &c is given in Red Ink for convenience =============================================================[end page 5] of seperating the two totals should Your Honor adjudge that Interest, Rents, Profits &c were not chargeable to any of said six children. The following is a table of kind, the amount, and the date of each advancement made by said Thomas McElrath in his lifetime to each and all of his six children, together with a table of the kind amount and value of the Estate that said Thomas McElrath owned at the time of his death that was undistributed as near as may be from the proof. Table of Advancements 1st To George M. McElrath as son 160 acres of November 1869 valued at $1200.00 1 Slave in 1860 " " 400.00 1 Horse, Bridle Saddle " 1860 " " 80.00 -------- Total advancements to George M. $1680.00 ======== To 6% on $1200.00 from 1869 to October 14th 1898, a period of 28 years 2016.00 To 6% on $480.00 for 2 years from 1860 57.60 -------- to 1863 Total Profit &c. $2073.60 -------- Making total for him on day of settlement $3753.60 =============================================================[end page 6] 2nd To John F. McElrath a son 160 acres of Land November 1871 valued at$800.00 1 Slave in 1860 " " 800.00 1 Horse, Bridle Saddle in 1860 " " 80.00 -------- Total advancements to John F. $1680.00 ======== To 6% on $800.00 27 years from 1871 $1296.00 to October 1898 To 6% on $880.00 for 2 years from 1860 to 1863. 105.60 -------- Total Profits &c $1401.60 -------- Making for him on day of settlement $3081.60 3rd To William J. McElrath a son 1 Slave in 1860 valued at $ 250.00 1 Horse Bridle Saddle 1860 " " 80.00 -------- Total advancements to William J. $ 330.00 ======== To 6% on $330.00 for 2 years from 1860 to 1863 $ 19.60 -------- Total Profits &c $ 19.60 -------- Making for him on day of settlement $ 349.60 4th To Sarah Beach a daughter 160 acres of Land November 1869 valued $1200.00 1 Slave in 1860 valued at 400.00 1 Horse Bridle Saddle in 1860 " " 80.00 -------- Total advancements to Sarah B. $1680.00 ======== To 6% on $1200.00 28 years from 1869 to October 1898 $2016.00 To 6% on $480.00 for 2 years from 1860 to 1863. 57.60 -------- $2073.60 =============================================================[end page 7] Total Profits &c $2073.60 -------- Making for her on day of settlement $3653.60 5th To Martha J. Wrather a daughter 80 acres of Land in 1861 valued at $ 800.00 1 Slave (or money) in 1860 " " 400.00 1 Horse Bridle Saddle in 1860 " " 80.00 -------- Total advancements to Martha J. $1280.00 ======== To 6% on $800.00 for 37 years from 1861 to 1898 $1776.00 To 6% on $480.00 for 2 years from 1860 to 1863. 57.60 -------- Total Profits &c $1833.60 -------- Making for her on day of settlement $3113.60 6th To Mary P. Smith a daughter 1 Slave in 1860 valued at $ 400.00 1 Horse Bridle Saddle in 1860 " " 80.00 1 Cow, 1 Feather Bed &furnishings " " 45.00 -------- Total advancements to Mary P. $ 525.00 ======== To 6% on $525.00 for 2 years from 1860 to 1863. 63.00 -------- Total Profits &c $ 63.00 -------- Making for her on day of settlement $ 588.00 Proof shows that four(4) of said six children each have received advancement in Realty & Personalty the following amounts =============================================================[end page 8] to wit George M. McElrath in Land $1200.00 " " " in Personalty 480.00 -------- $1680.00 Profits 2073.60 -------- Combined Total $3753.60 John F. McElrath in Land $ 800.00 " " " in Personalty 880.00 -------- $1680.00 Profits $1401.60 -------- Combined Total $3081.60 Martha J. Wrather in Land $ 800.00 " " " in Personalty 480.00 -------- $1280.00 Profits $1833.60 -------- $3113.60 Sarah Beach in Land $1200.00 " " in Personalty 480.00 -------- $1680.00 Profits $2073.60 -------- $3753.60 Showing that the four above named children are as near proportionately equal as may be under the orders of Court and the duty to be performed. Proof discloses the fact that Mary P. Smith a daughter and William J. McElrath a son of said Thomas McElrath decd never at any time during the life of their father Thomas McElrath received any advancement in Land. The allegations state that there was advancements made to Mary P. Smith in Personalty, in addition to the 1 Slave the 1 Horse Bridle Saddle, other personalty amounting to $400.00. Proof does not support the allegations, but does disclose the fact that in addition to the 1 Slave the 1 Horse, Bridle Saddle there was and advancement made by said Decedent to his said daughter Mary P. Smith of 1 Cow, 1 Feather Bed &furnishings valued at $45.00 which is Charged to her in the above table. Therefore we submit the above table as setting out all the advancements made by said Thomas McElrath to each and all of his six children during his lifetime- Then it only remains to be done that the other two to wit Mary P. Smith and William J. McElrath be made proportionately equal as near as may be out of the Estate owned by said Decedent at the time of his death that was undistributed. Thomas McElrath owned at the time of his death the following lands to wit No 1 Deed from J.P. McElrath filed acres poles herewith and marked "A" for 298 80 No 2 Deed from J.O. Johnston Master Commissioner marked "B" for 67 00 =============================================================[end page 9] No 3 Reserve in Deed to Joe McElrath from Decedent marked "C" for 19 80 -------- making a total of 385 acres out of which the Court adjudges and orders a Dower alloted to Mary Ann McElrath widow of said Thomas McElrath to be taken from the Home Place, including the late residence of said decedent, and not to exceed $1000.00 in value. The Commissioners Report and Surveyor T.F. Harrison plat before me show that the remainder of the N.W.qr. of sec 12.T.3R.3East was allotted to her after deducting the 19 acres and 80 poles owned and occupied by W.W. Youngblood, acres poles making in said qr. to Dower 133 7 also in the S.W.qr of sec 1.T.3R.3East 19 80 as per deed No.3 marked "C" upon which the late residence of said decedent is situated. Also in S.E.qr of sec1.T.3.R.3East 4 adjoining the Reserve of 19acres & 80poles Also in N.E.qr of sec12.T.3.R.3East 4 143 adjoining the N.W.qr of sec12.T.3.R.3East-------- making a Total of 160 70 Hence Dower consists of 160 acres and 70 poles and does not exceed in value $1000.00 Now deduct from the 385 acres Amount of Dower 160 70 -------- leaves remainder of 224 90poles =============================================================[end page 10] Proof shows that the Home Place acres in a body 298 1/2 is worth $1600.00 Short Place 67 acres is worth 400.00 -------- Total value of Land $2000.00 Deduct value of Dower $1000.00 acres poles -------- Leaves balance of 224.90 worth $1000.00 as estimated by proof and the 385 acres lying in a body and in the shape of the letter L with the residence near the intersection of the horizontal and perpendicular lines of said "L". Therefore it is from the remainder 224 acres & 90 poles after allotting Dower that being the residue of undistributed Estate that said daughter Mary P. Smith and said son William J. McElrath children and heirs of said Thomas McElrath decd be made proportionately equal with their brothers and sisters as near as may be. Therefore it seems only fairness and equity that the remainder of the Home Place be equally divided according to quantity and quality giving 1/2 each to said Mary P. Smith and William J. McElrath also a like division of the Dower (to take effect when dower ceases) that is taking 1/2 of Dower which would give to said Mary P. =============================================================[end page 11] Smith and William J. McElrath each the following amounts to wit acres poles Mary P. Smith 1/2 of 147acres &104poles 73 52 and 1/2 Dower (later on) 80 35 -------- making a total of land of 153 87 William J. McElrath 1/2 147acres &104poles 73 52 and 1/2 Dower (later on) 80 35 -------- making a total of land of 153 87 and sell at Public sale the remainder of the Short Place 64 acres (should your Honor decree a sale) and divide the proceeds of said sale between said Mary P. Smith and William J. McElrath that is one [m??ty] each after first deducting from the amount of said sale the difference between $588.00 given Mary P. Smith and $349.60 given William J. McElrath ------- or $238.40 the amount of the difference in advancements made to said daughter Mary P. Smith and to said son William J. McElrath. This will not make them equal with his other brothers and sisters but will make them as proportionately equal as may be under the order of Court and duty to be performed. Otherwise Sell the entire realty either in bulk or in separate tracts, and after =============================================================[end page 12] paying to said William J. McElrath the sum of $234.40 to equalize the advancements made to him with the advancements made to said Mary P. Smith- then the remainder of said sale to be equally divided between said daughter Mary P. Smith and said son William J. McElrath, that is 1/2 of remainder of said sale to each. Therefore this report and settlement is submitted to you Honor. Should there be errors and omissions, may they be taken as of the Head and not of the Heart, Confidently relying upon the thought that there sits one between the auditor and the parties at interest, who, alike, is able and willing to apportion equity to the better satisfaction of all. Submitted R.Hayden Sr. Auditor January 7th 1899. =============================================================[end page 13] The following is a list of authorities that guided me in the above Report and settlement. Chap 30 sec 17 R.S.P.486. Statute of 1776 (M & B) Ky Statute Chap 39. sec 1407&8. 1 Bush p.371. 4 Do " 482 5 Do " 88. 7 Do " 259. 8 Do " 655. 9 Do " 446. (91 to 95) 10 Do " 600. 11 Do " [?u??ism] vs Masters 12 Do " 71. 13 B.M. " Bowls vs Winchester " " " Hook vs Hook. 87 Ky " Scobe vs Bridges 4 Met " 178. 1 Do " 49. 286.302.582-3. 7 B.M. " 14. 15 Do " 394. 17 Do " 705.706.708. =============================================================[end page 14] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of William James McElrath taken 22-Oct-1895 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 03-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ The Deposition of W.J. McElrath taken on the 22d day of October 1895 at the office of the County Judge of Marshall County Ken- tucky in the town of Benton before L.P. Palmer Special Commissioner to be read as evidence in the case of W.J. McElrath and others against Charles Smith and others pending in the Marshall Circuit Court. Question by plaintiff's atty J W Dycus 1 Please state your age, occupation and place of residence Ans I was 58 years old last September occu- pations farmer residence Randolph County Arkansas 2 What relation if any were you to Thos McElrath decd Ans Son. 3 In what year did you move to Arkansas and when and how often did you visit your father after you moved to said state. Ans I moved there in Sept.1872 I visited him once each in 1892 and 1893: how many times I visit- ed his house while I was in this country I could not state. 4 Do you mean to say you came from your home in Arkansas in 1892 and then again in 1893: how is this Ans I made a trip one trip each year. 5 Then you had not seen your father from 1872 to 1892. Is this so, if not Explain =============================================================[end page 1] Ans No sir I dont remember of seeing him from 1872 to 1892 6 Did he and you pass letters in the mean time or not? Ans No sir. 7 Did you or not hear from him in this long time if so how? [margin note] Objected to by Defts. Ans I did through letters from friends and connections. 8 Was there ever any quarrel between you and him or bad feeling [margin note] Objected to by deft. Ans No sir. 9 What was the condition of his mind and health in 1892 when you saw him, and please say in what part of the year 1892 it was that you saw him? [margin note] Objected to by Deft. Ans He was feeble in mind and health: my recollec- tion is it was about the last of November 1892. 10 When did he die and what was his age at that time Ans He died the 19th of February 1895 he was 94 years old and some month. cant remember precisely now. 11 Of what did he complain, if he complained of being ill in the fall of 1892 when you saw him [margin note] Objected to by Defts. Ans Of course it was from the disease he had the Spring before I disremember whether he stated what it was or not. 12 Was he up going about or in bed? [margin note] Objected to by Defts. =============================================================[end page 2] [answer to question 12 and all of questions and answers 13 through 18 are missing] 19 What did he talk about generally, and did he talk well as usual or not. Tell all about this. [margin note] Objected to by defts. Ans. He would commence different subjects most commonly he was talking about how his neighbors were getting along and how trifling some of them were. He did not talk on these subjects as well as usual He seemed to speak of anything that come into his mind. 20 Did he tell you that he had made a deed to you or was going to do so, or that he intended to give you some land or anything or not [margin note] Objected to by defts. Ans No sir. 21 Did you ask him to do so or not? Ans I did not. 22 In your opinion was he mentally capable of transacting ordinary business or disposing of his property or not? Ans. I think not. 23 Did he ever give or advance to you any property or money or not, if so say how much and tell all about it. [margin note] Objected to by defts. Ans. In a family of negroes he advanced me a negro child. there were four of us got the negroes the one I got was valued at $100. 24 Is it a fact that this one hundred dollars or child worth that sum is all you ever [margin note] Objected to by defts =============================================================[end page 3] received from him or his estate as a gift in advancement. Ans It is. 25 If your father owed you anything when you moved from this state please say what it was for and how much [margin note] Objected to by deft Ans He owed me for a crop or a portion of a crop that I made in 1859. $150.00 [margin note] Objected to by deft 26 Has it been paid or not. [margin note] Objected to by defts Ans It has not. 27 Now please state whether or not it is a fact that he agreed to make you whole in [can't read] [can't read] in some way in some future time. Ans He did. 28 Is your father's present wife or widow rather your mother or not. Ans She is not 29 Are you acquainted with the 60 or 67 acres of land embraced in the paper purporting to be a deed from your father to you. If you say you are then say how much in your opinion it is worth in money. Ans I am acquainted with it and it is worth about $250.00 30 State what efforts if any you have made to sell it and the result? [margin note] Objected to by Defts. =============================================================[end page 4] Ans The first proposition I made to sell it was to the highest bidder in the presence of C.H.Wrather Deft Jo McElrath Robt Thweatt and Jno Putnam. I proposed to take $100.00 down and balance on time and Putnam offered $315 and after examining deeds &c Putnam backed out then I proposed to Wrather Deft to sell it to him for $250. he told me that he was not able to buy it and said that if I doubted the deeds that Lawyer Willingham of Mayfield said he would buy it. Wrather also went with me to see Willingham he also told Willingham my business: Willingham asked me if I had any doubts or fears about the deed I told him that I did he then said he would give me $100 for the land and I refused to take it. [margin note] Objected to by defendants 31 In your opinion how much is the 350 acres more or less worth which was conveyed or attempted to be conveyed by your father to Mary P. Smith and Martha J. Wrather [margin note] Objected to by defts. Ans. I suppose it is worth $2000.00 the 300 acres. 32 Is this your opinion or not. Ans Yes sir. 33 Are you or not acquainted with the land purchased by your father from Wm Peterson and by the latter conveyed at your fathers request to defendant C.H. Wrather the husband of his daughter [margin note] Objected to by defts. =============================================================[end page 5] Martha J. Wrather. If you are ac- quainted with it and was at the time it was so conveyed, say how much it was then worth in your opinion? Ans I was acquainted with the land. and it was worth $800. 33 If your father gave to his said daugh- ter Martha J. Wrather and her said husband any money in property state it and its value at the time it was so given. Ans He gave none up to the deeding of this land. He gave them this tract of land worth $800.00 34 Did he give them or either of them any- thing more that you know of, if so state it. [margin note] Objected to by defts. Ans I dont know of his giving them but he sold Mr Wrather a horse and Wrather never paid for it. This is hearsay only. 35 Are you still suffering with your head and shoulders as you were this morning and do you think you will be able to continue up till your depositions can be completed Ans I am still suffering with my head and do not think I will be able to continue now till the deposition is completed. =============================================================[end page 6] Cross Examined by W. M. Oliver, attorney for defendants C.H. Wrather & wife & Mary P. Smith & her husband Charles Smith, but Cross Examines this witness without waiving any right to object to the whole of his deposition, and now objects to all of plaintiff W.J. McElraths deposition & to the reading of same for the reason he is not a competent witness, and they object to each one of the questions and answers above. No 1 How do you know that decedent Thomas McElrath gave 80 acres of land re- fered to by you, and which you call the W.N.Peterson land to defts. C.H. Wrather & his wife your sister? Ans I heard him speak of it and I heard Peterson speak of it. 2 Who do you mean by him & Peterson. Ans Father Thos McElrath and W.N.Peterson 3 And this is all you know about your father Thomas McElrath giving the 80 acres of land to Wrather & his wife it it? Ans Yes thats what they both claimed. Father said he paid for the land and Peterson said father paid for it. 4 Peterson made the deed to your father, & then your father made a deed to Wrather & wife I believe - is this the way it was done? =============================================================[end page 7] Ans I am not positive. 5 Did you know that your father, Thomas McElrath only paid $400.00 of the money for that land & that C.H.Wrather paid the other $400.00 with his own money? Ans No sir. 6 You dont know whether this is true or not, do you? Ans Yes I know he never paid the $400.00 that is Wrather never paid it. 7 Do you now undertake to say that you know that C.H. Wrather did not pay $400.00 out of his own money on that land? Ans I know father said he paid $800 for the land and Peterson also said father paid $800 for the land [margin note] Objected to by defts. 8 Do you know anything about this trans- action of your own knowledge - or in any way except hearsay? Ans Only what the two parties said. 9 Are you sure you have been back to Kentucky twice before this trip, since you first went to the State of Ark. Ans Yes sir I am pretty certain I have. 10 You went to Ark. first in 1872- when was the first time you came back to Kentucky after that? Ans I come back sometime during the winter of 1872 on business I left in Sept 1872 abd come back that winter and staid a few days. 11 How many days did you stay her on that trip, & what was your business back here? Ans I disremember how many days I staid. I had some settlement with a man by the name of Jones that was unsettled. 12 Did you have any other business with him except to come back here to try to kill him- Is it not a fact now that you made that trip from Ark, back here to Ky, on horse back, arriving in Ky late one evening, & did you not immediately hunt Gabe Jones up, and shoot him, and start back to Arkansas the next morning before sun- up - & is it not a fact that this was your only business, & is it not a fact that you did not go to see your father at all on that trip. [margin note] Objected to by Plffs Atty Ans No sir I came back to see this man Jones for a settlement and while we were talking a difficulty come up and there was some shooting taken place I dont think I went to see my father on that trip. =============================================================[end page 8] 13 How could you feel to came all the way from Ark, to Ky, & not go to see your aged father, who lived in the community which you was in, and be- ing on good terms with him without going to see him. [margin note] Objected to by Plffs atty Ans Business at that time would not allow a visit. 14 I believe you and your father, Thomas McElrath had a law suit back about that time = what was that about= Ans We never had any lawsuit never have 15 Did you not sue your father for about $12.00 or $14.00 for a balance due you for some corn the year you worked with Rhoda Sutherland= Say whether or not this is true, & did you not see him in a magistrates court $ before Esq. S. Starks? Ans No sir. I have no recollection of it. 16 Was there a controversy between you & your father in regard to what you claimed that he owed you about the time you worked with Rhoda Sutherland? Ans No sir there was no controversy that I recollect of I sold him a mule the year that I worked there mule colt he was to pay me $45.00 he paid $40.00 down and about 12 or 15 months after he paid me the other $5.00 =============================================================[end page 9] 17 In company with whom did you go up to your fathers the first time when you came back here in 1892 & the first time you had seen your father since 1872. Ans Lee Thweatt went with me. I think 18 Now are you not mistaken - Is it not a fact that C.H. Wrather took you up to see your father in his buggy the first time? Ans No sir I think it was the second time. 19 What trouble did you& your father have the day you & C.H. Wrather went up there together - what did your father say to you about the way you treated him before you went to Ark. Ans There was nothing said about any treatment. 20 I will ask you if your father did not shame you for your conduct to- ward him - & is it not a fact that you was then trying to sell the 67 acres of land which he had deeded to you & had you not gotten Joe McElrath & others to speak to your father about allow- ing you to sell the said 7 acres of land= & did your father not tell you on that day in the pres- ence of C.H. Wrather, that he purposed to have the use of the land as long [margin note] Objected to by Plffs Atty =============================================================[end page 10] as he lived, and did he not tell you, that you ought to be ashamed to want to have it sold from under him before his death, & did you not get mad & leave, in less than an hour after you arrived- & is it not a fact that, that was the last time you ever went to see your father= Did you not then go in a clandestine way and sell this land to John Putman - before your fathers death= & did not John Putman in a few days after- wards meet you in Mayfield with the money to pay you for the land- but on account of the way in which the deed was written= Putman concluded that you could not sell the land as long as your father lived, and for this reason only, declined to pay you the $315.00 for the land= How about this? [margin note] Objected to by Plffs Atty Ans There was a little misunderstanding about it and my recollection is that Jo Copeland was present and the old man said that I was trying to dispossess him this was in 1893 is my recollection. I was trying to sell the 67 acres in 1892. My understanding from the =============================================================[end page 11] old man my father was that the deed was his free goodwill and that I could do as I pleased with the land. I had spoken to Joe McElrath & others to speak to my father about selling it at the time he complained of my dispossessing him in 1893 he said he un- derstood he was to have the use of the place so long as he lived but did not say it in 1892 I dont recollect of his saying I should be ashamed to want to sell it from under him I have had nothing to do with it ever since and I gave it up to them and the widow even gets the proceeds this year. I cant say that I got mad and left but I probably did not stay over as hour I considered it the old mans property and I wanted him to have a living as long as he lived. I think that was not the last time I ever saw my father. I know I was there several times after that probably a half dozen times maybe not so many. I did not go in a clandestine way and sell the land those men were all present when it was put up to the highest bidder. The understanding was that there was something wrong as to the widows dower and Mr CH Wrather proposed to come back and get her signature for the dower and they were to =============================================================[end page 12] send me the deed and I was to make Mr Putnam a deed and forward the deed and then send the $100 to me the next news Putnam wrote that father was complaining and that they had taken possession of it and rented the land out and Putnam also wrote that C.H.Wrather had told him not to let my father know anything about my selling the land. and that he thought probably we had better do away with the trade as my father would get mad or excited over it. 21 You say you thought at that time your father gave you the land of his own free good will to do as you pleased with it, Now what made you think that, and that he would be willing for you to sell it before his death? Ans That is the word he sent to me by Joe McElrath. 22 And then you commenced trying to sell it did you? Ans Only at that one time. 23 Did you not try to sell it after you went back to Ark? Ans No sir. 24 Examine letter which I have marked "W.M.O" L.P.P & J.W.D & say whether or not you =============================================================[end page 13] wrote that letter to Cale Wrather & your sister Martha J. Wrather? Ans- No sir I dont think I ever had anything to do with it That is my signature but I dont think I wrote any of it. I think it was done by other hands. 25 Have you ever written any letters to Cale Wrath- er & your sister? Ans I have. 26 Examine this letter marked L.P.P. & say whether or not you wrote & mailed this letter to Cale Wrather & your sister or not? Ans I dont think I wrote either of them. I bought 40 acres of land and was to pay $50.00. 27 Take my pencil & write which I dictate: Ans [at this point it appears that W.J. McElrath writes in his own hand a sample, presumably from the letter in question. The handwriting is barely legible.] [??arm] Dear brot her sister An fam ly is set my delf two Drop you A line tw let you Know that we are well At present an hope thes two lan[?] [????] find yu all well i have no mi[??] of impo tance too rit =============================================================[end page 14] [sample handwriting continued] old corn is worth 39L pair [??s] wheat 60 bar[???n] 15 cts muny secrrie Kail pleas se what you can so withmy palan [end of handwriting sample] The attorney for the Defendants CH Wrather and wife and Mary P Smith and her husband Charles Smith announced that he was not done cross examining this witness but the hour for adjournment having arrived and the witness being ill the further examination is continued until Oct 24th 1895 at 9 oclock and the witness on motion of attorney for Plaintiffs is permitted to sign the deposition for fear that he may not be able to return and complete said To which the Defendants object. [signed] Wm J. Mcelra Oct 24.1895 Met pursuant to adjournment and resumed Cross Examination of W.J. McElrath. No 1 How many letters have you written to Cale Wrather & his wife in the last 3 or 4 years? Ans I couldnt state. 2 Did you get any one to write any of the letters to Wrather & wife for you, or =============================================================[end page 15] did you write them all yourself? Ans. I couldnt be positive about that when I am not able to write I have my wife sometimes to write and my children sometimes to write. 3 Did you have your wife or children to write either of the letters which have been exhibited to you? Ans I think not they resemble my hand write I have no recollection of ever writing them and another reason I have never employed Mr. Wrather to at- tend to my business and I also gave up the place after I heard the old man wanted to keep it. I have proposed to trade my undivided interest in the estate. 4 Who wrote these two letters for you that are exhibited to you & marked "W.M.O LPP & JWD" & the one marked "L.P.P." & say whether or not you do not know that they are both in your own hand writing? Ans. It resembles my handwrite and it might be poss- ible I wrote them but I have no recollection of it. 5 I will ask you if you did not in the year 1892, or 1893, in the town of Mayfield, and in the County Court Clerks office in the presence of Tom George, County Court Clerk, appoint =============================================================[end page 16] C.H. Wrather your agent to rent this land for you & collect the rents therefrom for you? Ans. That was before I ever got a hearing from the old man: in 1892 that was when I was out here and conditionally sold the land. There was something said about ap- pointing him my agent I wouldnt be posi- tive whether in Mayfield or not. 6 Say whether or not you executed and delivered to C.H. Wrather a written Power of attorney author- izing him to attend to your business in relation to this land for you, and say whether or not this was oft[?] the trade failed between you & John Putman Ans. My recollection it was at the same time on the same trip I know there was such conver- sation about a written power of attorney but I am not positive about it the trade was made in the country and my recollection is I was on my way back home to Ark when this power of attorney was given if it was given. This was before I had got a hearing from father saying that he wanted to keep the property and all business that was transacted before I had never charged my memory with it and I never had proposed =============================================================[end page 17] trading anything but my undivided interest after hearing from the old man. 7 Write your name on letter WMO & LPP & J.W.D, between "A" & "B" & on letter L.P.P. between "C" & "D" and make said letters a part of your deposition. Ans. I wrote my name as requested and make said letters a part of my deposition. 8 Please file the deed from your father to you for the 67 acres of land mark same X, and make same a part of your deposition. Ans. I have not got the deed and dont know where it is. 9 Did you ever have it in your posses- sion= how did you get it & when & what did you do with it? Ans. I had it in my possession but how I come by it or what did with it I dont now recollect. After I heard the facts about it I considered it worth nothing. 10 What did you show it to Judge Jno. Dycus for if you considered it worth nothing? Ans. I wanted him to see what he thought about it if I ever showed it to him 11 Didn't you show it to him last =============================================================[end page 18] Spring when you brought this suit? Ans I might have done it. 12 When did you see the deed last, & in whose possession did you put it in the last time you saw it? or what did you do with it? Ans. It seems as I fetched it to this county this Spring but what I have done with it I dont re- member I could not say when I saw it last I came here in April and my recollection is I brought it here. 13 Dont you know that you gave it to your atty- J.W. Dycus, and has he not got it now? Ans. I might have done it and he may have it I dont remember what become of it as I thought it was worthless I never have looked after it. 14 Go & tell Judge Dycus that we want you to file it & ask him for it & see if he does not tell you that he has it? Ans. Judge Dycus thinks he has it and will pro- duce it in a few minutes and if he does I will file it as part of my deposition he has produced it and I file same as requested 15 What did you trade the negro slave given to you by your father for and to whom? Ans It was a cash trade that is I took a note for it from my brother John F. McElrath for $100.00 =============================================================[end page 19] 16 Are you not mistaken about this- did you not trade the negro slave to John F. McElrath for a tract of land on Lauen- paint River, in the State of Ark. Ans. No sir. I sold him the negro this was during the war. and the time of the was he was owing me the bigger portion of it and he owned a piece of land 40 acres I taken for the remainder and gave him up his note. 17 I will ask you if you have not tried to sell this 67 acres of land since your fathers death & since you have been in Ky, on this trip. Have you not also tried to trade it to C.H. Wrather & wife & did they not offer you their interest in the 290 acre home tract for your 67 acres? and did you not decline to accept that proposition? Ans I proposed to sell my undivided interest in the estate and no more to two if no more if they considered that this was my interest. I tried to trade Mr Wrather my undivided interest also to Mr. Jo McElrath here. Re Examine Are you suffering with your head and neck =============================================================[end page 20] as much as you did when you were testifying last Tuesday or not and do you think you will be able to finish your deposition to-day or not. Ans. I am not suffering as much as on Tuesday and I think I can go through with it today. 2 Now please tell what proposition you made to deft Wrather about the land and why [margin note] Ques & ans. Objected to by defts attys Ans I proposed to CH Wrather Deft to take $250.00 for my undivided interest and go home and have no suit about it and he would not accept it. 3 When was this? Ans. My recollection it was about May 1895. 4 Did you ever accept said deed from your father as your share of his lands unconditionally, or only if you could sell the land for $250. or $300. how is this. [margin note] Objected to by Deft. Ans. Well I wanted to avoid a lawsuit and rather than to have a family lawsuit I agreed to take $250 and go home. 5 Did you ever take possession of the land: that is move on it or put any one on it, or exer- cise any acts of ownership over it, or not Ans I did not 6 Did you ever claim it as your own after you learned that your father did not want you to have it or not. =============================================================[end page 21] [answer to question 6 is cut off] 7 What was the highest price any one of- fered you for the land. [margin note] Objected to by Defts atty Ans Mr Putman offered me $325 at the sale in 1892 is my recollection. 8 In cash or on time, and on time state the terms, and why the trade was not completed. Ans $100.00 cash and the balance in 12 months time is my recollection his understanding was the title was not good and he quit the trade on that account. 9 Is your health good or bad, and how is it about your recollection. Ans My health is bad and my recollection is short. [signed] Wm J Mcelrath =============================================================[end page 22] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of Joe McElrath taken 24-Oct-1895 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 01-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ Also the deposition on Jos McElrath taken at the same time and place and for the pur- poses mentioned in the caption. 1 Question by Plffs Atty JW Dycus Please state your name age residence and occupation Name Joseph McElrath age 67 residence Mar- shall County Ky occupation Farmer 2 What relation if were you to Thos McEl rath decd Ans He was my uncle. 3 How far did you live from him and for how long. Ans I have lived in a mile of him and for the last 30 years I have lived in half a mile of him or less. 4 Were you or not in intimate terms with him and see him often for the last few years. Ans. Yes I was and saw him often. 5 When did he die and at what age if you know his age. Ans He died February 1895 and he was 94 years old and a few days over. 6 What had been the condition of health for some time prior to his death, and that of his mind also. Ans Well his health had not been good by any means. his mind was not good I did not think. =============================================================[end page 1] 7 Had he had any serious illness just before his death or any time; and if so please say when it was Ans He had serious illness in 1892 8 What time in 1892 and how long did it last. Ans I dont know that I remember the days that the old man got down It was the first of February and he got up along the last of March I reckon. 9 What had been the condition of his mind prior to that spell of sickness Ans Several years his mind was very feeble very feeble minded 10 After that illness how was it Ans Well he had no mind hardly 11 Was he at any time after that illness in his right mind or mentally capable of transacting ordinary business or not in your opinion. Ans I think not. 12 Please tell why you think not. Ans Well I can tell several reasons in the first place he did not know a good portion of his neighbors a man would go there who had probably been there the day before and he would not know him would ask who he =============================================================[end page 2] was he would ask his old lady if that was Jo when I would go in: very often he did not know Bolin the man that worked at my house. When his hogs failed to be up he would accuse some neighbor of steal- ing them. He would imagine that he would see wagons and things passing by his house when there was nothing passing at all He told me that the railroad was going to run right up his spring branch and that he saw a man down there at the spring that told him they were going to have a depot right at the spring. he was not capable of writing a note nor I dont think he was capable of attending to any business. 13 Was this his condition after his sickness in Feby & March 1892 or before. Ans That was his condition after his sickness. 14 What was his condition before that illness in 1892. [margin note] Objected to by Defts atty Ans He was weak in body and mind. his mind I think gradually sunk as his body did 15 After that illness was it or not a fact that mentally he was helpless, almost if not quite Ans Yes he was almost helpless if not quite. 16 Were you present on the 25th of April 1892 when he signed the deeds, one to his =============================================================[end page 3] [top portion cut off] McElrath, if not how long was it un- til you saw him after that time. Ans I was not present at that time saw him the next morning after, I think. 17 Was there then any improvement in his mind or not Ans I dont know that there was. 18 How much in your opinion is the 68 or 67 acre tract of land embraced in the deed from him to his son W.J. McElrath worth [margin note] Objected to by deft Ans $300.00 19 Does this tract join the 300 acre tract whereon the old gentleman lived and which is embraced in the deed to his said two daughters. Ans It does not. 20 How much is the 300 acre tract worth [margin note] Objected to by deft Ans I suppose it is worth $5.00 per acre $1650.00 Adjourned until Oct 25, 1895 at 9 am. Oct 25 1895 Met pursuant to adjournment and resumed the examination of Joe McElrath Ques by Plffs attorney 20 If you heard Decedent Thos McElrath =============================================================[end page 4] say what he had done or had not done for his son W.J. McEl rath or what he intended to do for or give him please say what it was that he so said [margin note] Objected to by deft Ans I have heard him say what he hadnt done and what he aimed to do. he said he had not given Jimmie anything. he said he intended to give him (W.J. McElrath) this place meaning the home place I suppose: at the time he made use of that remark he was at home. [margin note] Objected to by deft 21 Did he live then where he lived at the time of his death or not. Ans Yes sir. 22 If he said what he intended for Mrs Wrather please state it. [margin note] Objected to by deft Ans Well he said he intended that a little place lying east of me that was deeded to Jimmie McElrath for Wrather. 23 Do you mean to say that he told you that he intended for Wrather the 60 or 67 acres embraced in the deed to Jimmie (or W.J. McElrath) of date April 25 1892? [margin note] Objected to by deft Ans. Yes sir. 24 In what year or years did he tell you these things Ans Let's see it was in 1890 or 1891. 25 Did he make such statements to you or =============================================================[end page 5] in your presence more than once, if so about how often? Ans I think more than once don't recollect how often 26 Who were present it any one when these statements were made to you. Ans I don't recollect any person being present now. 27 What else did he say at the said times in connection with these statements, and what reasons f any did he give for his intentions [margin note] Objected to by defts Ans He said that Jimmie was crippled I suppose his reasons for giving the old place to Jimmie was on account of his being a cripple and as I said before that he had never given him anything 28 What property if any did he give his daughter Mrs Wrather in his lifetime or to her husband Ans I have no personal knowledge but he told me that he had given him 80 acres of land and he told me he give him a horse of my personal knowledge. I dont know what else he gave. 29 What land was it that he said he given Mr Wrather Ans I cant give the numbers but it is the place John Putnam lives on now. 30 By way of refreshing you was it or not the 80 acres known as the Wm Peterson land =============================================================[end page 6] Ans It was. 31 Do you say that he gave Mr Wrather a horse or not. If so of what value Ans He gave him a horse I suppose he was worth maby $80.00 I dont know what stock was worth at that time. 32 What if anything did he give his son John F. McElrath and state its value at the time it was so given Ans He give him a horse. Isuppose he was worth some $80.00 as I stated before. I dont know what stock was worth then. He said that he gave him a quarter of land on Bear Creek this county I dont know anything about the value of it. 33 I hand you a copy of a deed from Thos. McElrath to J.F. McElrath marked exhib- it "Mc" will you file it as part of your deposition as showing the gift of the quar- ter of land lying on the waters of Bear Creek mentioned by you? [margin note] Objected to by deft Ans I have examined said deed and file it as part of my deposition as requested. 34 Did he or not also give him some slave property. if so mention it and give its value and when it was so given? [margin note] Objected to by deft Ans He give him some slave property as I learned from the parties. I think about 1855 or 1856 it was given a negro woman I reckon she was worth $800.00 =============================================================[end page 7] 35 Did you ever hear J.F. McElrath say that his father had given him the said ne- gro woman or not. Ans I have heard him speak of getting a negro woman from his father 35 Did he say his father had given him the woman or not Ans Dont recollect of him saying he give her to him 36 You have but little knowledge of her value, is this true or not. Ans I have but little knowledge only by the way such property sold. 37 What property did he give if any to Mrs Beach or her children and say about when it was and give its value if you can. Ans I dont recollect the dates: 25 or 30 years ago he gave her a quarter of land or said he did. I reckon it was worth $1200 then he claimed to give her a negro boy value I suppose he was worth $350.00 38 In what county and state did the land lie Ans In the State of Kentucky Calloway Co. 39 Was the deed made to his daughter Mrs Beach or to her children. state if you know. Ans I think it was made to her two children 40 State what property ["if any did" scratched out] he give =============================================================[end page 8] to his daughter Mrs Smith or her hus- band, if any, and state its value if you can. Ans A negro boy: I suppose he was worth $350.00 and he gave her a horse I suppose worth $80.00 that was what he told me I was not present. 41 About what time or year did he give her the Negro boy. Ans 1855 or 1856 I reckon: about that time. 42 Did he or not also give her or her husband a tract of land Ans Not that I know of. he said he deeded her 160 acres of land the land belonged to Chas Smith he moved West Charly Smith made him a deed to the said land so he could sell the land for Charles Smith that is my understanding 43 by Charly Smith do you mean her husband a defendant? Ans Yes sir. 44 You have said that the land given by decedent to Mrs Smith belonged to Smith. Do you mean to say that said Thos. McElrath deeded the land to her husband Charles Smith instead of to her and that after this said Smith deeded it back to Thos. Mc Elrath to sell for him Smith. Is this what mean, if not explain. Ans I understand that the land was Charles Smiths' =============================================================[end page 9] and that he got it from his own fathers estate. 45 Then you do not know that decedent ever gave to his said daughter Mrs Smith or to her husband any land. Is this you meaning? Ans Yes I dont know that he ever give them any land. Cross Examined by W.M. Oliver for deft. 1 You have said that decedent Thomas McElrath gave to Cale Wrather a horse worth $80.00- Now if it is a fact that Cale Wrather bought that horse & paid the old man for it you are mistaken are you not= Do you know of your own personal knowledge whether it was a gift or purchase - if so how do you know it? Ans If it is a fact that Cale Wrather bought the horse and paid for it I am mistaken. I do not know of my own personal knowledge whether it was a gift or purchase. 2 You say Thomas McElrath decedent gave Cale Wrather & his wife a tract of land known as the W Peterson land- now do you know this of your own =============================================================[end page 10] personal knowledge, or when you made that statement, was you merely stating what you had been told? Ans I cant say that I know it of my own personal knowledge. 3 Do you know of your own personal knowledge that the decedent Thomas McElrath ever gave Cale Wrather, or his wife any thing at all. Ans I was not present at any time that he di give them anything that I recollect of 4 And you dont know of your own personal knowledge that he ever gave either Cale or his wife any thing do you - if you do know it of your own personal knowledge tell us how you came to know it in that way? Ans I stated above there not to my knowledge 5 Cale Wrather & his wife were neither present at the time the decedent told you what he had given his children, or what he intended to give them were they? Ans I think not. 6 Do you know of your own per- sonal knowledge that decedent Thomas McElrath ever gave his daughter =============================================================[end page 11] Mary P. Smith anything? or her hus- band Charley Smith? Ans Not to my personal knowledge 7 Is it not also a fact that you do not of your own personal knowledge know of decedent Thomas McElrath giving any- thing to any of his children? Ans No I dont know personally I could state this I was never present when he gave anything to any of his children that I recollect of. 8 Mary P. Smith & her husband Charles Smith were neither present when you had any of the conversations with decedent in regard to what he had given or was going to give to any of his children were they? Ans I think not. 9 I will ask you if it is not a fact that for many years prior to dece- dents death= he & you were not friends- & is it not a fact that you would some times go then to his home [or house] & carry him some neighborhood report & get the old gentleman mad & then go away =============================================================[end page 12] & talk to your neighbors how you worried the old gentleman, and did you not do this to a crowd of gentlemen in Zack Magness store or in the presence of Zack Magness & others in the year of 1893, and did you not also state in that same conversation at Mag- ness store in the presence of Zack Magness & others that the old lady Mary his wife annoyed the old gentleman a great deal & made him worse= at the same time state in substance that the old man had more sense than his wife. Ans If you will go back 15 or 18 years ago we had a little jar but 10 or 12 years just before his death I reckon we never had a cross word if we had I dont recollect it I dont recollect of carrying him any news to make him mad. I have spoken to him about his wifes relation and he would then say how trifling they were and rather abuse them maybe. I dont recollect of ever talking of how I worried the old man in my life Dont recollect of doing such a thing in Magness store in 1893 dont recollect =============================================================[end page 13] of talking about the old lady worrying him in Magness store nor anything about that conversation 10 Did not the decedent Thomas McElrath go almost daily around his farm and look after his business up to a short time before his death, and is it not a fact that he attended to all his business of any character all the time up to his death? Ans He frequently rode round his farm or said he did It is not a fact that he attended to all his business up to his death. 11 Who attended to it for him? Ans Well I suppose I did principally. 12 What did you ever do for him except count the interest on some notes for him once or twice- explain what else. Ans I have wrote notes for him 13 Who signed them. Ans Darnall I recollect signed one I dont recollect his given name. I recollect of doing other writing for him but dont recollect who it was for I did not charge my memory with it. 14 What did that man Darnell execute his note for? Ans It was in payment for a mule. =============================================================[end page 14] 15 Decedent Thomas McElrath sold Dar- nell the mule & then got you to write the note for him, was this the way of it? Ans Yes he traded the mule to Darnell brought the mule down and asked me if the mule was worth a certain amount I dont recollect the amount. he asked me if he hadnt better let the mule go. I told him yes he had no use for it and I wrote the note for him. [signed] Jos McElrath Adjourned until Oct 26 1895 at 8:30 a.m. Oct 26.1895 Met pursuant to adjournment and resumed the cross examination of Jos McElrath. 16 The old man loaned money & took notes & collected same in his usual way up to the time of his death did he not? Ans. He did not. 17 what change did he make in his manner of doing business? Ans. He used to attend to his own business until he got feebleminded and then he got others to attend to it for him or others did attend to it. 18 What part of his business did he get other persons to attend to for him? Ans. Collect his money and count up the interest and see that he got his money counted for him. =============================================================[end page 15] [question 19 is partially cut off] your personal knowledge? Ans. I did. 20 From whom = when - how much= & who was present at the time? Ans. Now I dont recollect the names. I collected some money off a man that he had sold some land to in East Marshall Co the amount I dont recollect I dont recollect the date, some four or 5 years ago i reckon. Ive counted money from him as it would be handed to him. I would tell him it was right and that seemed to satisfy him. I dont recollect now whether there was any person pres- ent or not. 21 Who made the trades with these parties= whereby they became indebted to the old gentleman? Ans. He made the trades several years before dont know how long several years. 22 How did it happen that you attended to his business for him? Ans He requested me to. 23 What reason did he give for wanting you to attend to it for him? Ans. I dont know that he give any reason. =============================================================[end page 16] 24 Is it not a fact that he got you to attend to it for him because he knew he did not have sense enough to attend to it himself? Ans. Well I dont know what he knew about that, what he thought about it. 25 Now dont you know he got you to attend to it for him= because he was old and not able to get out & go to see the parties him- self= especially to go from his home in the extreme S. West por- tion of the County= over to the East- ern part of the County? Ans. I dont know. he was not able to travel about much 26 Did he have some notes against parties at the time of his death= if so on whom- for what amount= & what were the notes for? Ans. I dont recollect but one note that was on Burchett I think the amount was about $90 or $100 balance due on land. he had other notes but I dont recollect on whom I recollect the amount of notes and accounts he had about 2 years before he died about $300 dont recollect what it was for it was different notes and little amounts. =============================================================[end page 17] 27 Say whether or not the old gentleman had all his life been rather ener- getic & shifty in his financial of- fairs, and did he not have a desire to accumulate property whereby he could aid his chil- dren? Ans. I could not say all his life. he was so up to some 8 or 10 years before he died an energetic persevering man. 28 Then like all real old people became inactive, and give less attention to business= is this what you think about him? Ans. Yes. he give less attention. 29 You say the old gentleman had an idea that the R.R. was going to be built through his farm & a depot established at his spring= ["about when" scratched out] Now say whether or not there was a survey made up the west fork of Clarks River by the projectors of the P.T. &A. which was to leave to West fork bottoms near the County line between Calloway & Marshall & run in the direction of Murray, & was it not thought for some =============================================================[end page 18] months by a number of people that the road would be built up the west fork of Clarks River & through the Community where you & the decedent lived in- stead of where it was built? Ans. I dont know whether there was a survey made up the West Fork of Clarks river. I dont know whether a number of people thought it would be built up the West Fork or not. 30 Say whether or not that rout was talked of, and was it not talked in your Community that said road rout was nearer and a more practical one than by Benton= did you not hear such talk as this & dont you know that rout was discussed by the speakers during the canvass when its vote for the $50,000.00 subsidy was purposed to be voted to the P.T.&A Co. Ans. It was talked of. it was said by some to be the nearest I have heard some express themselves that way. I dont know whether it was dis- cussed by the speakers or not for I dont remem- ber hearing them. I know I was opposed to the tax Re examined by JW Dycus for Plff. When was it that he told =============================================================[end page 19] [top portion cut off] depot at his spring: was it before or after his sickness in Feby & March 1892. Ans My recollection is it was after his illness. 2 Did or not he about that time some times go out and get lost in the neighborhood, and you and the friends would gather to hunt him up, state about this. Ans. He would get lost and yes several of us went to his house to start to look for him once that I recollect of and when we got there to start out and search for him we learned that he was lost. Mr Swift or Magness brought him home one or the other of them. 3 Now is it or not a fact after said spell of sickness in 1892 that his mind had dwin- dled down to imbicilty, and that he was not mentally capable of doing any kind of business or taking care of himself at any time thereafter. Is this your opinion or not Ans. Yes that is my opinion that he was not capable of taking care of himself. =============================================================[end page 20] 4 Or of attending to his business. Ans I dont think he was. 5 Or of making a fair or intelligent disposition of his property? [margin note] Deft objects to Plffs atty explaining the question to witness. Ans I think he was not capable. 6 Please state whether or not it is a fact that soon after he learned that he had made the deeds of date April 25 1892 one to his said daughters and one to W.J. McElrath that he wanted you to bring him to Benton to do away with the deeds or to see what he had done: and if so did you bring him: if not why did you not bring him. Ans He sent after me to go to his house and when I got there he told me they had told him that he had made a deed that is spoken in a little different way. they say "I have deeded my land away" and I want you to take me to Benton " he said "no man that had any sense would deed all his land off." I cant recollect he talked about his land a little bit and wanted to see about the deeds I did not bring him I did not think the old man was able to make the trip. 7 If you ever heard defendant C.H.Wrather =============================================================[end page 21] say anything about the condition of the old gentleman's mind please tell what he said about it, and about how often you heard him speak of it if at all. Ans I heard him say he was as crazy as a bedbug. dont recollect how often several times. 8 When and where was it and who was present at either time if any one if you remember Ans He said it at old Uncle Tommies in my presence but I dont know now of any one else that was present. It was during Uncle Tommies sickness. 9 If W.J. McElrath is a cripple or in any way afflicted say how it hap- pened and whether or not he ever recovered from it. Ans He is a cripple caused from a spell of fever. 10 Did or not said decedent at one time own considerable property in lands, slaves and money and other property Ans Yes he owned considerable property. 11 What did he do with it or most of it. Ans I think he divided it amongst his children the most of it 12 How much of it did he give to plain =============================================================[end page 22] tiff W.J. McElrath, if any Ans I think he give him a horse and a little negro. 13 What was each worth at the time of the gift. Ans The negro I think was sorter valued at $100 amongst the parties and the horse about $80.00 14 Did or not he give each of his children a horse Ans I think he did. 15 Was or not defts Wrather & wife, one or both frequently at Uncle Thos before and up to April 1892 Ans They were Re Cross Examined by Deft Was deft. C.H. Wrather, or his wife, or Mary Smith or her husband Charles Smith present at the time you say decedent Thomas McEl- rath wanted you to bring him to Benton to see about the deeds he had made in 1892 Ans I think not 2 Dont you know they were not- none of them? Ans I have no recollection of their being there =============================================================[end page 23] 3 Now say whether or not it is a fact that after you learned that decedent Thomas McElrath had made the deeds to Wrather & wife & James McElrath= did you not go to George McElrath and say to him that if you was in his place you would not go about the old man= & did you not try to keep some of your neighbors from going about decedent on account of his having disposed of his land as he did? and is it not a fact that you went to see decedent, and in the presence of his wife plaintiff= Mary McElrath & tell him that he ought to not allow his business to stand that way? Ans I have no recollection of it No sir I have no recollection of trying to get my neighbors not to go about him I have no recollection of telling decedent he should not allow his business to stand that way. 4 Did you not state in the presence of dece- dents widow=plff herein- in substance that he ought not to allow it to stand that way= did you not advise the old =============================================================[end page 24] man to make a change in his business. Ans I have no recollection of that either 5 Will you now swear that you did not advise the old man in the presence of his wife, at his house in the Spring of 1892, and soon after the deeds were made to not allow it to stand that way Ans I have no recollection of that 6 Will you swear that you did not do so? Ans I will swear I have no recollection of it and I dont think I did advise any such thing 7 You have took considerable interest in giving aid and encouragement to plff W.J. Mc Elrath in the prosecution of this suit have you not? Ans I have had as little to do with it as possible. I was called here to give in my deposition and I came 8 Is that all the way you have aided plff in this suit? Have you not told him all you knew about the case and advis- ed him what you would do if you was in his place. Ans That is all the way I have any recollection of. I brought him down here once he had no way to come and went to Judge Dycus' office he asked W.J.McElrath some questions turned to me and asked me if I =============================================================[end page 25] knew about the old man giving away his property. I told him I had some knowledge about it I reckon then spoke of his giving his children some negroes; that is about the substance of it. I have no recollection of telling Plff what I knew about it and advising him 9 This suit was then brought upon the information given Judge Dycus by you & W.J.McElrath was it not? Ans I suppose it was. 10 Have you not also been getting up witnesses for plff. W.J. McElrath & going & getting them to come here to give their deposition= Did you & John McElrath of Murray not meet here in Benton on one occasion for the purpose of getting this suit on foot? Ans To the 1st question no, To the 2d question no. 11 Do you know who went to get Mr John Putman to come here today to get his deposition? Ans There was a summons or subpoena handed me to read to John Putnam I did so and returned it 12 Did you not also try to get an- other witness to come? Ans I have no recollection of it. 13 Is your recollection good or bad? =============================================================[end page 26] Ans I reckon it is as good as common men of my age 14 Did you not volunteer you services & take a "spa" for a witness who lives in Calloway County= but fail to find him? Ans No. 15 Was the name of any other witness in that "spa" besides John Putman which you did take if so who was it? Ans A.J. Jones name was in the subpoena. 16 Did you find A.J.Jones= Ans I did not look for him didnt find him either 17 When was it that C.H. Wrather told you the old man was as crazy as a bedbug - where - & who was pres- ent? Ans At the old mans I dont recollect the exact time nor whether anyone was present. 18 What was it that caused the ill feeling to exist from the decedent Thomas McElrath for his son W.J. McElrath= the plaintiff in this action- & how many years had such ill feeling existed prior to the death of the old man? [margin note] Objected to by Plffs atty. =============================================================[end page 27] [top of answer to question 18 is cut off] went to Arkansas. but I have heard of no ill feeling existing since that time. When he came back to the country he always go to see his father 19 Do you know of your own personal knowledge that he would always visit his father? Ans. Of my own personal knowledge I dont know from the fact I was not there all the time. 20 Of your own personal knowledge do you know that he ever visited his father at any time from 1861 - till 1892 - & after the deed was made? Ans. Yes for I have been with him there. 21 In what year? Ans I dont recollect I know I was there with him. 22 Since W.J. McElrath went to Ark & before 1892? Ans Yes sir that is my recollection. 23 Now if W.J. McElrath has not been in Kentucky from the time he went to Ark = until 1892, except the time he shot Jones= you are mistaken about this are you not. =============================================================[end page 28] Ans I dont think that I am mistaken in the above statement that I made there. 24 Which of decedents Thomas McEl- rath children seemed to be his favorite? Ans John F seemed to be his favorite 25 Which one after John F. McElraths death? Ans Dont know. 26 Say whether or not the decedent Thomas McElrath was rather harsh when any one offended him, and is it not a fact that he was always easily offended & when once offended, did he ever forgive the person so offending him? Ans. He was harsh when offended and easily offen- ded I reckon he would forgive a person offending him. 27 The plaintiff W.J. McElrath accused you of med- dling in this business a good deal about a year or more before decedents death did he not? Ans I have no knowledge of it if he did. 28 Examine this letter= whose is it? which I mark "Jo. McElrath" [margin note] Objected to by Plffs Atty =============================================================[end page 29] [answer to question 28 cut off] 29 Do you give it as your opinion that it is W.J. McElraths handwriting. [margin note] Objected to Ans I said it resembled his handwriting not in full. 3 File same with Examiner as part of your deposition & mark same "L" immediately under your name x Ans I do so as requested. Re Examined Is it or not a fact that for many years prior to his death you heard the decedent speak kindly of his son W.J. McElrath and that he in- tended to help him [margin note] Objected to by Deft Ans. I have By same-Did you or not the Sheriff hand you the subpena and authorize you in writing to summon the witness Putman and A.J. Jones and does not the subpe- na show this fact [margin note] Objected by deft. Ans Yes sir. [signed] Jos McElrath Witness claims 3 days $3.00 =============================================================[end page 30] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of C.H. Wrather taken 9-Dec-1895 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 26-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is typewritten, with some handwritten insertions and corrections. These notations will be set within quotation marks. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ Marshall Circuit Court W.J. McElrath, and others------------------Plaintiffs. vs Deposition. C.H. Wrather and others.-------------------Defendents. The deposition of C.H.Wrather, taken at the law office of Reed & Oliver in the town of Benton, Marshall County, Ken- tucky, on the 9th day of December, 1895 to be read as evi- dence on the trial of the above styled action in which W.J. McElrath and others are Plaintiffs, and C.H. Wrather and others are Defendents now pending in the Marshall Circuit Court. Examined by Attorney for Defendent. Q,-State your age, residence, occupation and state whether of not you are one of the Defendents to this action? A,- Age 60 years. residence, Mayfield, Graves, County, occu- pation Farmer. I am one of the Defendents. Q,-What is your wifes name? A,-Martha Jane Wrather. Q,-What was her maiden Name? A,-Martha Jane McElrath. Q,-What was her fathers name? A,-Thomas. McElrath. Q,-Is he living, if not when did he die? A,-He died 19th, day of February 1895. Q,-Give the name of each of his children? A,-J.F. McElrath a son, Sally McElrath a daughter, who mar- ried, J.W. Beach. Mary P McElrath a daughter, who married C.H.Smith, W.J.McElrath, a son, G.D.McElrath a son and Martha Jane McElrath who is now my wife, Henry McElrath a son. Q,-Which of these children, if any survived decedent, Thomas McElrath their father? =============================================================[end page 1] A,-W.J.McElrath, Mary P Smith, Martha Jane Wrather and Geo. D. McElrath survived their father. Q,-Which of these children died before decedent leaving chil- dren surviving them, if any? A,-Sally Beach left two children,-John Beach and Ella Beach, each live in Texas, J.F.McElrath died before his father, Thomas McElrath, and left surviving him five chil- dren whose names are as follows:- Nanny McElrath who married Lockridge Boone, Mary McElrath who married some years ago in Texas, I cannot give the name of her husband, Neivel McElrath who is yet single, Harry McElrath who is yet an infant, and Burt McElrath, who has since the death of his father, J.F. McElrath died and left no children surviving him. All of the children of J.F.McElrath live in Texas. Q,-What was the age of Thomas McElrath at the time of his death, and where did he die? A,-He was 95 years and fifteen days I belive was his age, and he died in the South part of Marshall County. Q,-When did you marry his daughter, Martha J. McElrath? A,-19th, day of October 1859. Q,-Where did the Plaintiff, W.J. McElrath live at that time? A,-He lived with his father. Q,-What was his age at that time? A,-He was about twnety-two years old. Q,-How long did he live with his father after you married? A,-I think he left in 61 I believe, I think he made a crop with me in 1862. Q,-Did he leave his fathers before he married, if so, what was the cause of his leaving his father, Thomas McElrath if you know? =============================================================[end page 2] A,-He fell out with his father about something, but I don't know what. Q,-When did he marry? A,-It was 1863 or 64 is my recollection. The hour for adjournment having arrived and by agree- ment of the parties, the taking of this deposition is con- tinued until Tuesday, the 10th, day of December 1895. "E D Ayers" Examiner for Marshall County. Met at the same place on the 10th, day of December 1895 pursuant to adjournment for the purpose mentioned in the caption, and proceeded to take the deposition of C.H.Wrather. Q,-When did he move to Arkansas? A,-In 1872 I believe. Q,-When did he again visit Kentucky? A,-In the winter of 1872. Q,-Did you see him on that visit? A,-I did. Q,-How ling did he remain in Kentucky at that time? A,-He staid one night. Q,-What business did he come here to transact, if you know, and what did he do while here? A,-Well sir he came here to kill Gabe Jones was the only business I heard. Q,-Was you living near decedent, Thomas McElrath at that time. A,-Yes I was living near him. Q,-Did Plaintiff, W.J.McElrath visit his father on that trip? A,-He did not. =============================================================[end page 3] Q,-What were the feelings between W.J.McElrath and his father Thomas McElrath, deceased and one for the other at that time, if you know from hearing either or both of them talk about the other, kind of unkind? A,-Well Jimmies talk was unkind toward his father, decedent Thomas McElrath. Q,-What did he say about his father? A,-He would curse him and abuse him. Q,-When was the first time that the Plaintiff, W.J.McElrath visited his father after he moved to Arkansas in 1872? A,-In the summer of 92, I think. Q,-Where did the Plaintiff first go when he arrived in this coun- try on that visit? A,-At my house in Mayfield. Q,-Did you accompany him to visit his father on that occasion? A,-I did. Q,-How long did he stay with his father on that visit? A,-Well i would not say over two hours. Q,-How did they meet and treat each other on that occasion, and what did they talk about in your presence? A,-It was about Jim trying to sell the land from under his father before his death. They were unkind to each other. The old man told Jimmy that he ought to be ashamed of himself for trying to sell the land from under "him" in his old age, that he intended to have the use of the land as long as he lived, that was the arrangement and understanding at the time he made the deed with both him and Wrather, and that the understanding with J.M.Willingham who wrote the deed was that neither of the deeds to him or Wrather were to be recorded during his life time. =============================================================[end page 4] Q,-Did Jimmy go back with you when you left? A,-He did not. Q,-Did he stay with his father, if not why not? A,-He did not, and when I went to the horse lot to catch my horse to go home I says Jimmy you ought to stay here some with your father. He says no By God I would not stay there for twenty-five dollars a night. Q,-Did the Plaintiff, W."J".McElrath continue to try to sell the land after this? if so what effort did he make? A,-He did. Well he contracted it "to" John Putman. Well he auctioned it off at Joe McElrath's gate in the presence of John Finney, Joe McElrath, John Putman, Bob Thweat, and myself. Putman bid three hundred dollars, I bid three hundred and ten, Putman then bid five more. Putman got up the money, come to my house and staid all night, next morn- ing we met W.J.McElrath in Mayfield, and he failed to give Putman the kind of deed wanted, and the trade fell through, then Jimmy wanted to appoint me as his agent to take charge of the land for him, and manage it, and we went over to the clerk's office, and the clerk wrote a power of Attorney for him, appointing me his agent, and Jimmy signed it [the remainder of the page is folded under] =============================================================[end page 5] Q,-I notice that it is alleged in Plaintiff's petition that decedent, Thomas McElrath in his life time gave to your wife Martha J. Wrather Eighty Acres of land, and worth at the time at least Eight Hundred Dollars, now please state whether or not said decedent ever gave to your wife any land at any time, if so, when and how much? A,-he gave her one quarter section of land in April 1892, and had never given her any land of any kind of any value at any time before that, but in 1861 I bought Eighty acres of land from W.N.Peterson being the a part of the same land which I sold to John Putman, I got the rest of the land which I sols to Putman from Amos Copeland there being about twenty-seven acres in the part I bought from Copeland. I sold all this land, the eighty acres which I bought from Peterson and the twenty-seven acres from Copeland to Putman for Nine Hundred Dollars. I gave Peterson Eight Hundred Dol- lars for the land, Four Hundred of which was paid by me with my own money and Four Hundred was paid by my wifes father, Thomas McElrath, and this is what is meant by Plaintiff when he says decedent, Thomas McElrath gave my wife a tract of land worth Eight Hundred Dollars, when the truth is he gave her no land at all, but paid Four hundred dollars of the purchase price on the Peterson land. Q,-Hve you the deeds from W.N. Peterson and Amos Copeland to yourslef [sic] conveying this land to you? A,-I have. Q,-Will you please file them and mark them "C" & "P" resepc- tively as a part of your deposition. =============================================================[end page 6] A,-Yes I will, and do. Q,-Did the decedent, Thomas McElrath ever give or advance to your wife any other property besides this four hundred dolloars, and the tract of land in 1892 refered to by you above? A,-He did not. Q,-What was the fair market value in cash of this quarter sec- tion of land conveyed to your wife by decedent Thomas Mc- Elrath in April 1892? A,-The old man, Thomas McElrath in his life time and from 89-90-91 and 92 valued the 160 acres which he conveyed to my wife and the 160 that he conveyed to Mary P Smith and the 67 acres he conveyed to Plaintiff W.J.McElrath all at $900.00, it is very thin land, washed into gully's, all the arm turned out in waste fields, except two little fields of about 4 or 5 acres each near the house. Its fair cash value at that time with posession delivered at the time would be about, and not exceeding $3.00 per acre, or $480.00 for the whole tract, but you see the possession was not given to us at that time and we were not to get posession of it during the life of dece- dent Thomas McElrath, and this would make it less valuable under the deed to us. Q,-What was the fair market value in cash of the 67 acres conveyed to Plaintiff W.J.McElrath in April 1892? A,-Well it is worth $6.00 per acre or $402.00 for the whole tract, posession delivered at that time, but less of course when a person has to wait for the posession. Q,-What was the value of the 160 acres conveyed to Mary P "Smith" =============================================================[end page 7] A,-Well it is worth about the same as that conveyed to my wife. Q,-What property or money or advancments had the decedent Thomas McElrath given or made to the Plaintiff, W.J.McElrath in his life time, and prior to April 1892 when he conveyed to him the 67 acres of land know as the "short place" lying in Marshall County, if any? A,-He gave him a nigger child valued at $400.00, horse, bri- le and saddle valued at $75.00. This was all, until he gave him the land in April 1892. Q,-What advancements did the decedent thomas McElrath make to his daughter, Mary P Smith in his life time, and prior to April 1892, when he conveyed to her the 160 acres of land in Marshall County? A,-A nigger valued at $400.00, horse, bridle and saddle worth about $80.00. Q,-What advancments, if any, had the decedent Thomas McElrath made in his life time to his son Geo. M. McElrath? A,-A tract of land worth about $1400.00 at the time of the gift, and worth about $2000.00 now. Q,-What advancments, if any, had the decedent Thomas Mc- Elrath made to his daughter Sarah Beach? A,-He gave her a nigger worth $400.00, a tract of land worth $800.00, horse, bridle and saddle worth $80.00. Q,-What advancments, if any, had the decedent Thomas Mc- Elrath made to his son John F. McElrath in his life time, if any? A,-Gave him a nigger worth $400.00, and 160 acres of land- =============================================================[end page 8] I don't know what the value of it was, but have understood that John sold it for $600.00, but I don't know this. Q,-Was you present in April 1892 when decendent Thomas Mc- Elrath executed deed to your wife "&" Mary P Smith and Plaintiff- W.J.McElrath? A,-I was. Q,-by what arragment [sic], if any, and what caused to go to his home on that occasion? A,-He wrote for me to come up there, that he wanted to see me, I went and he told me what he wanted, that he wanted some-one to write some deed and fix up his business, and he selected Esquire Dick Copeland of Calloway County to write the deed, and Copeland could not come, then told me to go back home and get a lawyer, and come back to his house that he was going to fix his property while he was living, and I did as he requested me, and when I got back there he dictated how he wanted those deeds wrote to J.M.Willingham, who wrote the deeds. Q,-Have you that letter now that he wrote you? A,-I have no, it has got mis-placed. Q,-Have you searched for said letter? A,-I have. Q,-Have you searched all places? at which it is your hab- it to keep letters? A,-I have searched for it dilligently at the places I am in the habit of keeping my letters, and have failed to find it, though I may be able to do so yet, and if I do, I will file it with this deposition. =============================================================[end page 9] Q,-Do you remember the substance of the contents of that let- ter? A,-Yes, Q,-State them please? A,-Well he just wrote for me to come up there, that he wanted to see me on special business, without saying anything about what it was, and I did not know what he wanted until I got to his house. Then he told me he wanted to dispose of his land while he was living so there would be no jouring over it after he was dead. Q,-What was the condition of decedent Thomas McElrath at that time mentally? A,-Good as it ever was as far as I could see and he was peart. went out to the lot and caught his horse and rode around his farm to see whether the fence was down or not, he did this as Willingham and I started home. Q,-Say whether or not he was at that time in your opinion mentally capable of transacting business, and of disposing of his property in a final way intelligently and according to his own volition? A,-He was. Q,-Had he been sick just before that? A,-Yes, two or three months before that. Q,-Did the decedent recognize W.J.McElrath at the time you accompanied him to his fathers in 1892? A,-Not until they told him, as he could not recognize any- body by his eye-sight in the room, but see them out in the light, he could, he did not recognize me until I spoke to him =============================================================[end page 10] then he says "Oh! yes my Rather has come", and when I told him that it was Jimmy McElrath, he knew it as well as he ever did, and asked him about his family and how many children he had and their names, and how much land he had, he went on a right smart, but I could not tell all he said now. Q,-You heard Plaintiff, W.J.McElrath testify that decedent Thomas McElrath sold you a horse, which you never paid for, tell about this? A,-I bought one from him and gave him a note or due bill for $50.00 and afterwards paid it off and I now have it. I file it herewith as part of my deposition and mark it "T". Q,-Did Plaintiff, W.J.McElrath ever offer to sell you the 67 acres of land, known as the "Short Place" for the price of $250.00, if so, why did you not accept? A,-Because he would not record his own deed, so he could make me one, he did not want to pay Willingham his fee for writing the deed and my father-in-law told Willingham at the time he wrote the deed that he would have to look to the children for his fees as he was not going to pay it, and this was the rea- son we did not trade, and I did not want the land at any rate. Q,-Examine the letter marked "L.P.P" and "W.MO." and L.P.P, and G.W.D, endorsed, filed September 24th, 1895 by L. P. Palmer, Examiner and say where and how these letters came into your posession? A,-I got them out of the post office at Mayfield, he wrote them to me while he was in Arkansas. Q,-Are you famillary [sic] acquainted with the handwriting of Plaintiff W.J.McElrath? =============================================================[end page 11] A,-I am. Q,-Say whether or not these letters are in his handwriting? A,-They are. Q,-Say whether or not decedents mind was very feeble or weak for a number of years or for any length before his death? A,-It was not, however his recollection was not as good as it had been, but he had as good judgment as he ever had. Q,-Say whether of not you ever said to or in the presence of Joe McElrath that decedent Thomas McElrath was as crazy as a bed bug or in substance or anything like it? A,-I did not. Q,-What was you talking about, or what did you have ref- erence to when you told John Putman that the old man Thomas McElrath became wild o crazy the day before Plaintiff W.J.Mc- Elrath attempted to sell the 67 acres of land known as the "Short Place", and what was it that caused the old man dece- dent Thomas McElrath to get wild on that occasion? A,-It was because Jimmy was going to sell the land before he died. Q,-How much did John Putman give you for the 80 acres known as the W.N.Peterson tract, and the Amos Copeland tract to- gether? A,-My recollection sir is $900.00. Q,-How much of this money did you take as your interest in the land and how much did your wife take as her interest? A,-I taken $500.00 and gave her $400.00. Q,-Say whether or not you told decedent just before he got wild with anger on the occasion a [part cut off] to and one =============================================================[end page 12] by you in the conversation with John Putman that the Plaintiff W.J.McElrath was going to offer 67 acres of land to the highest bidder at Joe McElrath's the next day, and say whether or not this was the cause of his growing angry and wild? A,-I did. It was. Q,-Did you tell Putman what the decedent Thomas McElrath got mad or crazy about? A,-I did not. The hour of adjournment having arrived and by the agreement of the parties, the taking of this deposition is continued until Wednesday December 11th 1895. "E D Ayers" Examiner. =============================================================[end page 13] Met pursuant to adjournment on yesterday at the same time and place and for the same purpose mentioned in the cap- tion and continued to take the deposition of C.H.Wrather. Q,-At what hour was the examination adjourned on yesterday? A,-At four o-clock P.M. Q,-Who was present at the time of adjournment? A,-Judge. J. W. Dycus, myself and Mr. Ayers, the Examiner. Q,-Any-one else? A,-I think not. Q,-Did you and Judge Dycus agree to adjourn over until this morning to continue this examination? A,-That was my understanding, and if I had not, I should have went home. Q,-Has Judge Dycus been present this morning? A,-He came up here about ten o-clock, and left ten min- utes before eleven with out saying whether he want to cross- examine or not. Q,-Has he been back since? A,-He has not. Q,-Where is the Plaintiff, W.J.McElrath at this time? A,-Well sir I guess he is in Arkansas, he left Mayfield at 4 o- clock on the 2nd, day of December 1895. Q,-Was he not in this country on December 6th, 1895? A,-He was not. Q,-Who is his Attorney in this case? A,-J.W.Dycus. [signed] "C.H. Wrather" =============================================================[end page 14] State of Kentucky. County of Marshall. I E.D.Ayers, and Examiner in and for the County of Mar- shall, State of Kentucky, do certify that the above and fore- going deposition of C.H.Wrather was taken at the times and places mentioned in the caption, that the said witness was duly sworn by me before giving said deposition, that same was typewritten by me in his presence, and read to and subscribed by him in my presence, that Plaintiffs were not present in person, but their Attorney, J.W.Dycus was present on each day a portion of the time, that the Defendent, C.H.Wrather was present, but no other Defendent was present, in, but were by Attorney, W.M.Oliver. Given under my hand as Examiner for Marshall County, this 11th, day of December 1895. "E D Ayers" Examiner for Marshall County. =============================================================[end page 15] ++++++++end transcription++++++++++++++++++ There are also attached the various deeds, etc. referenced in the testimony given. I have not chosen to transcribe them. Deed from Amos Copeland to C.H.Wrather. Deed from W.N.Peterson to C.H.Wrather (marked "P"). Power of Attorney for W.J.McElrath to C.H.Wrather dated 5-Dec-1893. W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Depositions of Mary P. and C.H. Smith taken 14-Feb-1896 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 27-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ The interrogatories have typewritten questions and handwritten answers. The cross examinations are completely typewritten. There are some handwritten insertions and corrections. These notations will be set within quotation marks as will the handwritten answers. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. Please note that the pages of both interro- gatories appear to have been all numbered together, while the cross examinations seemed to have been numbered separately. Mary's interrogatories and cross examination has been kept together and C.H.'s has been kept together so that the page numbering appears out of order in this document. ++++++++begin transcription++++++++++++++++++ The deposition of C.H.Smith, and Mary P Smith taken on the "14" day of "Feb" 189"6" at the law office of McAntire & Craycroft, in the city of Joplin, Jasper County, in the State of Missouri, in room No. 12, in office building, in said city, upon the interrogatories, and cross-interrogatories to be read as evidence in an action between W.J.McElrath, and others Plaintiffs vs C.H.Wrather and others Defendants now pending in the Marshall Circuit Court. Interrogatories by Defendants Attorney. 1,-Q,-State your age, occupation and place of residence? A,- "61 years, Joplin Mo. house wife." 2,-Q,-Are you one of the parties to this action? A,- "I am." 3,-Q,-What is your husbands name? A,- "C.H. Smith." $,-Q,-What was your maiden name? A,- "Mary P. McElrath" 5,-Q,-What was your fathers name? A,- "Thomas McElrath." 6,-Q,-Is he living, if not when did he die? A,- "He is dead- He died 17th of Jan, 1895." 7,-Q,-When did you marry C.H.Smith? A,- "In 1856." 8,-Q,-When did you leave Kentucky? A,- "In 1867" 9,-Q,-Where have you since resided? A,- "In the State of Missouri" =============================================================[end page 1] 10,-Q,-What property, if any did your father Thomas McElrath give and advance to you, or your husband in his life time, and when, and what was the value of it? A,- "A Negro that was valued at $400.00 two or three years before the war." 11,-Q,-Did he never giver, or advance to you or your husband C.H.Smith any other property besides this? A,- "He never did." 12,-Q,-What property, or money did the decedent Thomas Mc- Elrath give or advance to his daughter Martha Jane Wrather or her husband C.H.Wrather in his life time to your know- ledge, and when and what was the value thereof? A,- "He gave her $400.00 in money." 13,-Q,-Were either of you, or your husband C.H.Smith present with your father Thomas McElrath on the 25th, day of April 1892 when your father executed the deeds conveying certain land to your sister Martha Jane Wrather, your brother W.J. McElrath and to yourself? A,- "No." 14,-Q,-What property, or money or advancements had your father decedent Thomas McElrath given or made to the Plaintiff W.J. McElrath in his life time and prior to April 25th, 1892, when he conveyed to him the 67 acres of land know as the Short Place lying in Marshall County, Kentucky, if any? =============================================================[end page 2] [page 3 is missing] =============================================================[end page 3] 16,-Q,-Was there ever to your knowledge any ill feeling or unkind feeling between your brother W.J.McElrath and your father Thomas McElrath Deceased, if so, when and what was the cause of it if you know, explain all about it? A,- "There was no ill feeling between to my Knowledge." 17,-Q,-Explain fully all about the gifts and disposition, and distribution of property by your father Thomas McElrath in his life time among and between you and his other children? A,- "I have answered this fully in question -14." =============================================================[end page 4] CROSS INTERROGATORIES. Q.-- Give your name, and the date and place of your birth, if you say you are a daughter of Thomas McElrath, state your Mothers maiden name, whether or not she is still living, if she is not liv- ing how old were you at her death? A.--my name is Mary P. Smith, I was born in Calloway County, Ky. in 1834, My Mothers maiden name was Nancy Thweete she is dead, I was about thirty years old at the time of her death. Q- 2- If you are the wife of C.H.Smith when and where was you married? A.-- Marshall County Kentucky, in 1856. Q-3-Name the places and the post office address of each of the places where you have resided since your marriage? A.--Murray Kentucky and Joplin, Mo. Q-4- When did you move from Kentucky and what place did you start from and where did you locate, how long did you stay there and where did you next move to? A.-- We left Kentucky and came to Jasper County where we have been ever since. Q-5- How often have you seen your Father since you left here, and where each time? A.-- Once at his home in Kentucky in 1890. Q-6- How many letters have you received from your Father in the last five years and how many have you or your husband written to him in that time? A.-- None. Q-7- had you been informed that he was to make you a deed for some land before April 1892, if so who gave such information? A.-- No. Q-8- About that time or shortly before had you seen C.H.Wrather or his wife or received any letter or letters from them upon the subject of the deed your father was to make to you and her? A.-- No. =============================================================[end page 1] Q.-- When did you last see W.J.McElrath or write or receive a letter from him? A.-- I saw him last in 1867. I have not received a letter from in the last ten years. Q.--Have you a letter from your Father written in the last five years, if you have kindly hand to the examiner to be files as part of your deposition and marked W.P.S.? A.-- No. Q.-- Are all the answers you have given in this deposition true and known by you of our own personal knowledge to be true? If not which answers are based on here say, and which ones are mere matters of opinion? A.-- They are all true to the best of my knowledge and belief. Q.--If your Father gave you any money, or lands or town or City lot or live stock as horses, mules or cattle or an outfit for house keeping when you were married or afterwards, please say how much money at any time, and name each article and how much land &c and say in what year it was so given and state the reasonable value of each article and of each tract of land as well as the number of acres in each at the time of each gift? A.-- He gave me on horse worth about thirty dollars, one cow worth about ten dollars, he gave me one feather bed worth about four dollar This is all of the property either personal or real that he ever gave or advanced or loaned to me at any time, except the four hundred dollar negro and I am informed that in 1892 that he deeded me some i cannot say how much as I have never seen the deed. Q.-- Upon what do you base the opinion of the values you have named A.-- Upon my own knowledge. Q.-- To whom did you sell the land and so forth and when was it and at what price or prices? A.-- I do not know what became of the horse and cow but suppose that they died of old age, Lincoln freed the negro. =============================================================[end page 2] Q.-- Name the property whether in land, money or other things which your father gave to your sister Mrs. Wrather or her husband and in what year or years was it so given, and state the reasonable value of each piece of property at the time it was so given? Did he not give Mrs. Wrather a horse, land and other things and money to pay for the Peterson land and the Copeland land, give your best recollection about this? A.--I don't know. Q.-- Was not [Mrs. scratched out] C.H.Wrather a very poor man and had "no" money with which to pay for land and owned no property or at least very little except what he got by his wife, is not this true? A.-- I do not know I know that he got some money from his fathers estate I do not know how much. Q.-- If you say ill feeling existed between your father and your brother W.J.McElrath say how you know this and when it was and ah what it was about? A.-- There was no ill feeling that I knew any thing about. Q.--If your father gave your brother a negro child in what year was it? What was its age and size, at what time and what was it then reasonably worth? A.-- About 1858, it was about two and a half years old, it was about the size of a two and a half year old negro, and valued at two hundred and fifty dollars as near as I can recollect. Q.-- Did he give him any other property that you know of? A.-- Yes gave him a horse and a cow and a fether bed and his brother John paid him the difference between the negro child and four hundred dollars. Q.-- Is it not fact that the negros given by your father to his other children were grown or nearly so? A.-- They were all children except the one John got. [signed] "Mary P Smith" =============================================================[end page 3] Also interogatories to be propounded to C.H.Smith, at the same time and place and for the same purpose mentioned in the caption. 1-Q,-State your age, occupation and place of residence? A,- "My age is 65 years, live in Joplin, Mo. have no occupation" 2-Q,-Are you one of the parties to this action? A,- "I suppose I am." 3-Q,-What is your wifes name? A,- "Mary P. Smith." 4-Q,-What was her maiden name? A,- "Mary P. McElrath." 5-Q,-What was her fathers name? A,- "Thomas McElrath" 6-Q,-Is he living, if not when did he die? A,- "Desd - died in Marshall Co. Ky- Jan-1895" 7-Q,-When did you marry Mary P McElrath and where? A,- "In 1856, Marshall Co. on 24th of Sept." 8-Q,-When did you leave Kentucky, and where have you since resided? A,- "In 1867 - In Missouri" 9-Q,-What property or money did your father-in-law Thomas McElrath de'cd, in his life time give or advance to you or to your wife, and when and what was the value thereof? A,- "He gave my wife a negro worth $400.00 " =============================================================[end page 5] 10-Q,-Was this all? A,- "Yes." 11-Q,-What property or money did the decedent Thomas Mc- Elrath give or advance to his daughter Martha Jane Wrather, or her husband C.H.Wrather to your knowledge in his life time, and when and what was the value thereof? A,- "I understand she got Four hundred dollars" 12-Q,-Were either you or your wife Mary P Smith present with your father-in-law Thomas McElrath on the 25th, day of April 1892 when he executed the deeds conveying certain land in Marshall County Kentucky to your wife and her sister Martha Jane Wrather and their brother W.J.McElrath? A,- "I was not." 13-Q,-What property or money or advancements had decedent Thomas McElrath in his life time made or given to Plaintiff W.J.McElrath prior to April 25th, 1892 when he conveyed to him the 67 acres of land in Marshall County Kentucky known as the "Short Place", if any? =============================================================[end page 6] A,- "He gave him a negro worth two hundred and fifty dollars and the balance of the four hundred Dollars in money" 14,-Q,-What advancements, money or property had decedent Thomas McElrath given or made to any of his children other than your wife, Mrs. Martha Jane Wrather and W.J.McElrath, if any, tell in detail all about it? A,- "He gave all just the same as far as I know." 15-Q,-Did you at any time prior to April 25th, 1892 or on that day use any undue influence, request or induce the de- cedent Thomas McElrath to sign said deed conveying land to your wife or Mrs. Martha Jane Wrather or W.J.McElrath, if so, tell all about it? A,- "No." =============================================================[end page 7] 16-Q,-Was there ever to your knowledge any ill feeling be- tween your brother-in-law W.J.McElrath and your father-in- law Thomas McElrath dec'd, if so, when and what was the cause if you know, explain all about it? A,- "I don't know anything about it." 17-Q,-Explain fully all about the gifts, advancements and dis- tribution of property or money by your father-in-law Thomas McElrath in his life time among your wife and his other chil- dren? A,- "I have answered that question." =============================================================[end page 8] CROSS EXAMINATION. Q.-- When did you last see decedent Thomas McElrath or write to or have a letter from him? A.-- 1890. I never received a letter from him in my life. Q.-- When did you last see or have a letter from C.H.Wrather or his wife upon the subject of advancements or gifts made by said Thomas McElrath to his children or upon the subject? A.-- Some six weeks ago. Q.-- Have you employed and attorney or attorneys to defend this action id you say you have give the name or names of such attorneys, have you or not spoken to Messrs. McAntire & Craycroft to assist in taking down depositions and is not the examiner who is taking them one of said attorneys? A.-- No. Q.-- Who are your attorneys who are defending for you in Kentucky and who informed you of what statements you are expected to make in this deposition if any one? A.-- No one. Q.-- Have you not heard or seen the substance of the statement made by C.H.Wrather inhis deposition if so who informed you? A.-- Yes. C.H.Wrather Q.-- Have you and said Wrather agreed to make a joint defense to the action herein? A.-- No. Q.-- In the answering the questions please avoid all here say and base your answers on your own personal knowledge only? A.-- All right sir. Q.-- Please state in detail amount of money if any was ever given you or your wife by her Father? A.-- One nigger worth four hundred dollars, one horse, one cow and one feather bed. Q.-- Name each tract of land town or city lot or other property which was given you or her by him and say in what year it was so =============================================================[end page 1] given and state also the reasonable value at the time ot time, it was so given of each tract and lot and each article or other property which he so gave you or her. A.-- One nigger worth four hundred dollars one horse, one cow and one feather bed woth [sic] forty five dollars. Q.-- Please answer fully the substance of the last question as to gifts made by Thomas McElrath to C.H.Wrather or his wife stating the years in which the several gifts were made and the reasonable value of each gift at said times? A.-- I understand she got four hundred dollars. Q.-- If you say ill feeling ever existed between decedent and his son W.J.McElrath say when it was in what year? A.-- I never knew or heard of any ill feeling between them. Q.-- When did he give said son a negro slave child in what year was it, what was the size and age of said child at the time and how did it compare in size with the negro he gave his other children in respect to size and name , the year or years in which said negros was so given? A.-- 1858, the negro was two years and a half old, cant say whether it was well grown for its age or not. Q.-- Was it not about the beginning or during the exhistance of the late war that said child was given to him and can you say it was then worth more than one hundred dollars, if in fact it was worth anything at that time? A.-- It was before the war and was worth as much as the other negros in proportion to its age, my recollection is that Thomas McElrath valued it at two hundred and fifty dollars. Q.-- How long since you or your wife last saw decedent or wrote to him or received a letter from him? A.-- 1890/ Q.-- Have you had no talk or communication with him relating to the gift of his remaining land whatever, did you, if so when, and tell all about it please? =============================================================[end page 2] A.-- No. Q.-- Neither of you was at his house in April 1892 was you, if so which one, how long did you stay with him who else was there with you A.-- No. Q.-- When did you say you was born, and when did you leave Kentucky if you ever lived here and what have you been doing since you left? Q.-- Have you now stated all you know about the advancements made by by decedent to his several children and the true, fair valuation of gifts at the time made, if not state any thing more you know to be facts pertaining to the same? A.-- I have told you all I know about it. [signed] "C. H. Smith" =============================================================[end page 3] State of Missouri County of Jasper, and city Joplin. I, Clark Graycroft, a Notary Public duly commissioned and acting in and for the County of Jasper, in State of Missouri, do certify that the foregoing deposition of C.H. Smith and Mary P Smith was taken before me at the time and place stated in the caption; that each of said witnesses were duly sworn before giving same; that it was written by "Alma Graycroft" in their presence, and read to and subscribed by each of them in my presence upon the interrogatories received by me through mail from the Clerk of the Marshall Circuit Court, that neither of the Plaintiffs or Defendants or any Attorney or agent "for either of them" was present during the examination of said witnesses. Given under my hand as Notary Public for the County and State aforesaid, the "14th" day of "Feb 1896" "Clark Graycroft" Notary Public. Seal My commission expires on the "31" day of "Jan" 189"9". "Notary Fees $2.54" "Pd by C H Smith" =============================================================[end page] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Depositions of James Sifford and Dr. W.D. Wyatt taken 22-May-1896 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 20-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ Marshall Circuit Court W.J. McElrath- et al Plffs. vs || Deposition C.H. Wrather et al || Defts. The deposition of James Sifford taken at the residence of Mary Ann McElraths in Marshall County Ky. on the 22 day of May 1896 to be read as evidence on the trial of the above styled action now pending in the Marshall Cir- cuit Court. Q1 State your age, residence, occupation and say whether or not you are acquainted with the parties to this action? Ans I will be 33 years old the 8th of Novem ber 1896, Marshall County Ky, Farmer. Well I cant say that I am acqua nited with any of them. 2 Do you know W.J. McElrath the plff. Mary Ann McElrath- C.H. Wrather & wife. Ans I know them when I see them now, I wouldn't before to day. 3 Which one of them did you not know until to day? Ans Mr Wrather & his wife 4 Where do you live now & how long have you lived at that place, I mean =============================================================[end page 1] on what farm? Ans I don't know by what name the place goes, and for that reason I cant tell. 5 How many acres are there in the tract upon which you live; and say whether or not Thomas McElrath owned it in his life time & up to within a year or two before his death? Ans I can't say I don't know. I don't know that. 6 To refresh your recollection, say whether or not the tract of land upon which you live is known by the name of the John Short land, and the same place which Thomas McElrath conveyed to W.J. McElrath by deed on April 25th 1892, as described in the deed which I hand you marked X, and made a part of W.J. McElraths deposition in this case. Ans Well the paper says so. thats all I can tell. 7 Do you mean to say that you live on the place describ- ed in that paper which you =============================================================[end page 2] have just read & that is all you know about it? Ans I think I do. Best I can gather from the deed. I think it is the place I live on. 8 Do you cultivate the whole of said farm; if not how much do you cultivate & who cultivates the remainder? When did you move on said place? When is you time out? Ans No sir, I cultivate suppose about 21 acres, then I have got about 4 acres in oats. Well the remainder that is cultivated, Uncle Charley Anderson. I can't exactly give you the date, but I moved some time in January last. Well I rented it for this year, that is the time I contracted for. 9 Have you paid the rent for said farm, in money? If so to whom did you pay the money? How much money did you give him? Ans Yes Sir. all that I was to pay in money. I paid the money to Uncle Jimmie McElwrath. I give him $20.00. =============================================================[end page 3] 10 Was you to do some repairing on said place in addition to the paying of the money for the use of the land, if so how much work was you to do for the rent of said land? Ans. Yes sir; I was to help Uncle Joe McElwrath repair the cross fence on the South side of it. 11 Did you pay this $20.00 to W.J. McEl- rath, or Jimmie McElrath before he went back to Ark. last Fall- 1895, or since he left this country & went bake there? Give the date you paid it as near as you can? Ans. I paid it before he went. I can't exactly say, it was either the last of November or the first of Decem- ber 1895 [scratched out "Cross examined by JWDycus, Atty for Plaintiff] [signed] J F Sifford Also the deposition of Dr. W.D. Wyatt taken at the same time and place and for the same purpose mentioned in the caption. 1 State your age, residence, occupation, & =============================================================[end page 4] say whether or not you are acquainted with the parties to this action? Ans. 36 years old. Calloway County Ky. Physician. Yes sir I might say that I am. That is I am acquainted with C.H. Wrather & wife, Jimmie McElwrath, & George McEl- wrath & Aunt Mary McElwrath, if there is any minors I am not acquainted with them. 2 Was you acquainted with the decedent Thomas McElrath in his life time? Ans Yes sir. 3 Was you one of the subscribing wit- nesses to the deeds, from Thomas McElrath & his wife Mary Ann McElrath to their chil- dren W.J. McElrath & Mrs C.H. Wrather & Mrs C.H. Smith a year or two before his death to some land lying in Marshall Co. Ky.? Ans I was. 4 What was the condition on that day physically & mentally & say what the old gentleman did if you know soon after you witnessed the deeds & about the time you left his house? Ans Well it was about as well as that time =============================================================[end page 5] as I ever saw him since he was sick in 1892. After we got through and I had witnessed the deeds I stayed here a few minutes and he caught his horse, and rode around his farm nearly to my house with me and then he left me. 5 Was you his family physician & wait upon him in his illness during the years 1890-1891-1892 & 93 & 94? Ans I was from Aug. 19th 1890 up to some time in 1894. 6 What was his age. Ans Well I don't know, he had told me several times that he was born in 1801. 7 How was his general health, physically & mentally during this time for a man of his age. How was his memory? His eyesight? Say whether or not he had nervous spells at times and what effect did they have on his mind if you say he did have them? What was the condition of his mind when he was free from these nervous "spells"? =============================================================[end page 6] was his reason & Judgment good or bad when free from a nervous attack, & how was it when he had one of the severe attacks? Ans. Well at times it was reasonable good and at times it was bad. Well at times his memory was reason- ably good for a man of his age and at times it was bad. His eyesight was good I suppose for a man of his age. I always saw him reading he used his glasses. He did have nervous spells, he had no mind at all when he had them. Outside of those attacks I called his mind very fair for a man of his age. When he was clear of these spells his reason & Judgment was reasonably good for a man of his age. When he had a severe attack he had no reason whatever. 8 On the day you witnessed his signa ture to the two deeds, say whether or not he had one of those nervous attacks, & what was his condition mentally & physically at that time? Ans If he had any that day I didn't witness it. As far as I can say =============================================================[end page 7] it was as good as I had saw him since he was sick in 1892. 9 Do you give it now as your opinion that at the time you witnessed his signature to said deeds that his mind was as good as it had been at any time when you had seen him since he had his bad spell of sickness? Ans On that day, at that time his mind was as good as I had saw him since he had his bad spell of sick- ness in 1892. That's three times I have answered that question. 10 If you had ever before that time heard decedent Thomas McElrath say anything about wanting to make some deeds & get his business settled up during his life time, say when, where & what he said about it? Ans Well I don't know that I had ever heard him say any thing about making a deed, but i had heard him say that he wanted his business fixed before his death. I think that was about his words. he had asked me to do some writing =============================================================[end page 8] for his several times but as to when and where the conversation ocurred I can not say. He didn't say wheth- er it was to be a deed or a will or what it was any more than that he wanted me to do some writing 11 Was it when he told you that he wanted to get his business fixed up during his life time, that he told you he wanted you to do some writing for him & the one conversation in connection with the other? Ans. He named it to me several times- He would when, I would meet him out somewhere, say that he wanted me to come over and do some writ- ing for him, and when I was here at his house, he would say that he wanted to get me to do some writing for him, some day 12 Was this writing which he wanted you to do for him about fixing up his business before he died, or about something else? [margin note] This question Objected to by Plaintiffs Attorneys Ans Well he said that it was about his business, He would say that he wanted to get it fixed up before he died. =============================================================[end page 9] Cross Examined by J.W. Dycus atty for Plaintiffs Ques 1. About how often did you visit the old gentleman in his illness in the winter and Spring of 1892 Ans. Well I'll say some twenty times, I can't be positive how often. 2 About what time did you cease to visit him professionally that Spring Ans It was the last of March or in April I believe I won't be positive. 3 What was his mental condition from the first of that illness in 1892 to May 1. 1892. I ask you as a medical man A. It was bad. 4 On the 25th of April 1892 was he in your opinion mentally capable of making an intelligent disposition of his property by written deed or will or of transacting ordinary business A. No sir I don't think he was. re Ex. By Defts atty. 1 You say that on Apr. 25-1892 in your opinion Thomas McElrath decd was not mentally capable of making an intelligent disposition of his =============================================================[end page 10] property either by deed, or will or transacting any ordinary business? Now was this the same day you witnessed his signature to the deeds to W.J.McElrath & Wrathers wife & Smiths wife or not? A. It was not. 2 But you say his condition mentally on the day you witnessed his sig- nature to those deeds was as good as you ever saw it after his illness & that you saw no indi- cations of any nervousness on that day, it this true or not? Ans. I was as good as that time, that I witnessed the deed and had saw it since his illness in 1892. 3 You do not know the exact date you witnessed the signature to the deed do you? Ans It was some time in April 1893. 4 Then it was about a year after you first ceased to visit decedent as a physician during his bad spell of illness in 1892 when you witnessed signature to deed was it? Ans. About that time. =============================================================[end page 11] Re cross Examined by P. 1 Who if any one came after you on the oc casion that witnessed the deeds and who if any persons were present when you did witness them Ans Mr. C.H. Wrather came after me. There was no one here but Uncle Tommie McElwrath, Aunt Mary McElwrath, Wrather & Willingham 2 Do you mean the Willingham who wrote the deeds, or what is his name Ans Well there was a gentleman here that was a stranger to me and they said it was Willingham. I suppose it was the man that wrote the deeds. I don't know. 3 How long were you here on the occa- sion Ans About 30 minutes I expect. 4 Dr I ask you as a medical man, at the time you witnessed the deeds, did Mr McElrath have mind and intelligence enough to reason from cause to effect or to make a just and proper disposition of his property A. I didn't talk a great deal with =============================================================[end page 12] him that day, to say that he was, I can't. and I can't say that he wasn't. 5 Why did you not do his writing when he asked you so often, please give your reasons. [margin note] Objected to by deft A. Well I thought probably that it would be worth nothing and that there would be trouble over it, and I wanted nothing to do with it. Re Ex. By Deft. 1 Say whether or not in your opinion Thomas McElrath, on the day you witnessed his signature to the deeds knew what he wanted to do with his property, and which of his children he wanted to give it to, from all the circumstances & what you saw & heard? A. I believe that he thought he knew. 2 What was the land which was conveyed to Wrather & Smiths wife the 330 acres worth, at the time the deeds were made, taking into consideration the fact that they could =============================================================[end page 13] not get possession of it till after the death of the old gentleman & old lady Mary Ann, & considering the old lady's physical condition? A. Well I've been wanting 80 Acres of it and I value it at $5.00 per acre. I am willing to give that. 3 The whole tract is what I ask about? A. I value it at $5.00 per acre. 4 Will you give $5.00 per acre and wait for possession until after the death of the old lady? [margin note] Objected to by Plf A. Not for all of it I won't. 5 Would you for 80 acres- at the time the deed was made A I wanted it and couldn't get it. 6 & wait for the possession until after the old lady's death? A. I wanted it then, if I got it. Recrossed 1. State whether C.H. Wrather & wife have been here discussing the taking of your testimony- and talked with you as to you knowledge of the facts A. They were here and Mr. Wrather talked with me. [signed] WD Wyatt =============================================================[end page 14] State of Kentucky || Marshall County || I, Geo. W. Oliver, Examiner for Marshall County, certify that the foregoing depositions of J.F. Seaford and W.D. Wyatt were taken before me at the time and place stated in the caption; that said witnesses were duly sworn before giving them; that they were written by me in their presence and read to and subscribed by them in my presence; that the Plaintiff Mary Ann McElwrath was present in person & by atty; that the defendants C.H. Wrather & wife were present in person and by attorney. Given under my hand this 22nd day of May, 1896. [signed] Geo. W. Oliver Examiner for Marshall County Ky =============================================================[end page 15] Costs Taxed. Geo. W. Oliver Ex' 1 day $3.00 swearing two witnesses & giving certificates .50 Taxing costs .30 --------- $3.80 Witness costs J.F. Seaford 1 da $1.00 W.D Wyatt 1 " 1.00 --------- Total Costs $5.80 .25 Sheriff' (Little) costs, ex. notice 25c --------- $6.05 W.J. McElwrath Et al. || vs || Depositions for || Deft. C.H. Wrather et al. "G" Recd from the hand of GW Oliver Exr & filed Sept 5- 1896 Att: Robt. L Shumwell Clk. Costs- Exr's fee $3.80 witness fees 2.00 ------- $5.80 Sheriff 25c .25 ------- $6.05 Recd =============================================================[end page 16] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of T.F. Swift taken 15-Aug-1896 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 20-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ Marshall Circuit Court W.J. McElrath= || Plaintiff. vs. || Deposition. C.H. Wrather et al= || Defts. The deposition of T.F. Swift taken at the Law office of Reed & Oliver in the town of Benton Marshall County Kentucky, on Saturday August 15-1896 to be read as evidence in the action of W.J. McElrath et al= Plff. against CHWrather et al Deft. now pending in the Marshall Circuit Court. Ques 1 State your age, residence, occupation and say whether or not you are acquainted with the parties to this action? Ans. I am about 59 years old. Marshall County. farmer. I was aquainted with the parties to this action. 2 Was you acquainted with decedent Thomas McElrath in his life time, how long had you known him before his death? How near had you lived to him during all that time? Was you with him frequently during that time? =============================================================[end page 1] Ans. I was acquainted with him, had known him all my life ever since I had known anybody. From a half a mile to two and a half miles from him. During the last 7 or 8 years I saw him frequently. 3 How near did you live to Thomas McElrath for the last six or seven years just prior to his death? About how often did you seen him during that time? Ans. Near a half a mile. Sometimes once a week and some times once a month. 4 Were you on friendly and inti- mate terms with him during this time & up to his death? Ans. Yes sir. 5 Did you frequently have conver- sations with him during the years 1890-91-92 & 93- When did he die? Ans. Of course I talked with him when- ever I met with him, some. I reckon he died last winter on a year ago. 6 What was the con- =============================================================[end page 2] dition of his health and mind at the time just prior to his death & how long had his mind been in that condition before his death? Ans. Well his health was generally tolerably good and his mind was as good as usual for a man of his age up till about six months before he died, with the exception of when he got a jug of whiskey and would drink a day or two, sometimes he would get down and not able to go till he got over that spell and the influence of the whisky. 7 Say whether or not he was mentally capable of transacting ordinary business, and taking care of his interest, and knowing what he wanted to do, and ought to do with, and concerning his property prior to the six or eight months before his death? Did he have sufficient mental ca- pacity to know to which of his chil- dren he wanted to give his property =============================================================[end page 3] and what final disposition he wanted to make of his property? Ans. From what I talked with him, I thought he was. I thought he did from the way he talked. 8 Was he mentally capable of doing so in the years 1892- & 1893 in your opinion? Ans. I thought he was. 9 Was there any reason, or did the old gentleman Thomas Mc Elrath give, or assign any reason why he intended to make a difference between his children in the distribution of his property several years before his death If so what? Ans. Him and George McElrath hadn't been on good terms for 15 years. I've heard that he intended to will his property so as to keep George out of any more that what he had. Cross examined by JWDycus for the Plaintiff WJ. McElwrath. No 1 Please state the times alluded to in you an- =============================================================[end page 4] swer to question 7 [can't read] by Deft's atty. Ans. I can't state the exact time. 2 Do you now remember of seeing and talking with him in April or May 1892 if so who was present and upon what subject did you and he talk Ans. I never failed to see him once a month. We talked about farm matters & one thing & another. Don't remember who was present at the time. 3 Now please state the time you allude to. Ans. I can't state the very day I was there. I was there in March, April, and May, and once a month & some- times oftener. 4 In what years? Ans. I've been in Marshall County about 8 years, and every year since then. 5 Mr Swift, your recollection is not distinct as to any of the times al- luded to in your answers above but only in the general way you have stated in your answers, is it. Ans. My recollection is distinct as to seeing him =============================================================[end page 5] once a month or oftener, but as to the day, I can't say. 6 What was his age at the time of his death and when did he die. Ans. I think he died in 1894, I am not right certain about that, He was something over 90 years old. 7 Your recollection is not very good is it as to dates at least Ans. About as good as common men. 8 What is you age Ans. About 59. 9 When did you last see Mr C. H. Wrather or his wife Ans. I dont think I saw him but once since the old man died, that was at county court- about a month ago is my recollection. Don't recollect of seeing his wife since the old man died. 10 You and Mr Wrather had no talk about this case when you saw him about a month ago did you. Ans. Not that I recollect of. 11 When did you first tell what you =============================================================[end page 6] knew about the case. Ans. Dont remember who I told. 12 Did the old gentleman make a will or not. Ans. I don't know of my own knowledge. I've heard Dr. Wyatt and others say that he did, I have reference to a deed and not a will. 13 He was pretty fond of his drams was he and sometimes kept a jug or a bottle is this true or not. Ans. He liked his dram, and he didn't keep it regular. Some- times he'd send and get a jug full. I dont know who he would send by as a general thing. 14 Who is George McElrath Ans. Tom McElwrath's son. 15 Did Mr McElrath make up with George before his death. Ans Not that I know of. I will say that in that spell of sickness when George would go there he wouldn't speak to him. 16 He had already provided for George out of his property many years had he not. Ans. Not that I know of. =============================================================[end page 7] 17 Were you present at Thos McElrath on the 25th of April 1892 or not if so what was the condition of his health and mind at that time and who else was there. Ans. I can't state that I was there on that day and don't know who was there when I was there. [signed] T. F. Swift State of Ky. Marshall County I, Geo. W. Oliver Examiner for Marshall County, Kentucky, certify that the foregoing deposition of T.F. Swift was taken at the time and place stated in the caption, that said witness was duly sworn before giving it; that it was written by me in his pres- ence; that it was read to and sub- scribed by him in my presence; that the plaintiffs were present by atty only; that Deft. C.H. Wrather & wife were present by attorney. Geo. W. Oliver Examiner for Marshall County =============================================================[end page 8] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of Z. B. Magness taken 11-Sep-1896 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 13-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ The deposition of Z.B. Magness taken at the law office of J.W. Dycus in Benton Marshall County Ky on the 11th day of September 1896 to be read as evidence in the action of W.J. McElrath & others plaintiffs against Martha P. Smith CHWrather & others defendants pending in the Marshall Circuit Court. Questions by Plaintiff's Atty JWDycus No1 Please state your age, residence and occupation Ans 41 years old. Marshall County. Farmer. #2 Were you acquainted with Thomas McElrath decd in his life-time- and if so- how long had you known him- and how far did you reside from him at the time of his death, and how long had you lived at that place. Ans Yes sir I was acquainted with him and known him twenty years. I lived at the time of his death in about a 1/4 of mile of him and had so lived for 14 years previous to that I lived not exceeding 1 1/2 miles from him #3 Was your acquainted with him during the time you knew him intimate or not. Ans Yes sir I was intimate with him #4 About how often had you seen and talked with him for the last five or =============================================================[end page 1] six years before his death- say per week - or month Ans Sometimes I would see him every week- and would have a talk with him each time he would always ask me something #5 What was the condition of his health generally for the last 5 or 6 years of his life- state how this was in your own language. Ans His health was not good for the last 5 or 6 years. Ever since 1892 his health had been mighty bad #6 What could you say in the condition of his mind for 5 or 6 years before his death Ans I consider that his mind has been mighty week and feeble for the last 5 or 6. Yes his body went down and his mind went down with it- #7 What opportunities have you had for seeing said Thos McElrath decd besides your visits to his house? Ans When he was well enough he would come down to my store once or twice =============================================================[end page 2] a week and always once a week when he was able- for his Paper. I would see him often and always had a talk with him. I was also Post Master- and he got all of his mail from the office kept them in my store- which was about 1/4 of a mile from his house. #8 Say whether or not you visited him at his house frequently and whether or not he would sometimes send for you. Say how this was? Ans When he was sick he was so close I would go over to see him- some- times every night- but I dont Know how often- and sometimes I would go over there when he was not sick I frequently went over on Sunday mornings- Yes sir if I stayed away a little too long- say for a week- he would think something was the matter and send for me. #9 Then if I understand you right he and you were very frequently- and you saw him often and had frequent conversations with him =============================================================[end page 3] Do I understand right or not? Ans Yes sir We were very friendly he seemed to think a great deal of me. and we frequently met and talked- Then when he would have these bad spells when his mind was worse he would send for me to attend to his business for him- and I would always try to pacify him and turn it off by humoring him as best I could. He would imagine that people were stealing his corn and his hogs- and say that there was five or six wagons down there hauling off all of his corn- on these occasions I would try to divert his mind from these things by recalling circumstances that had transpired a long time previous to this- and in this way would try to pacify him. #10 Did he or not have a serious and protracted spell of sickness or year or two or three before his death- and if so, please state how long that spell of =============================================================[end page 4] sickness continued and when it occurred. Ans Yes sir he did have a serious and protracted spell of sickness He was taken the last of January or first of February 1892- It seems to me he was down 2 or 3 months- two months any way. #11 Did you or not see him often after he got up- so he could walk about the house and yard- during April & May of the year 1892? Ans Yes sir I saw him during that time in April & May- two or three times a week. Sometimes would see him every day for a week. #12 What was the condition of his mind after he got up out of that spell of sickness and especially during said months of April and May- of said year 1892. Ans I considered his mind was very bad during them months #13 How was it then- as compared with it during the year 1891. Was it better or worse? Ans It was worse. =============================================================[end page 5] #14 Judging from his manner of conversation and from his appearance Is it your opinion that he had mind enough in April 1892 and on the 25th of April 1892 to transact ordinary business or to make a just and intelligent disposition of his property among his Children or not? Ans No sir I dont think he did. #15 If you ever heard him say what disposition he intended to make of his home tract of land or of the small 60 or 67 acre tract please say when it was- and what disposition he intended to make of said land tell all he said about it? Ans Yes sir I can tell what I heard him say about it- It was some- time about ten years ago- Me and him was coming to Benton and he said that he never had given his son Jimmie anything to amount to anything and I =============================================================[end page 6] allow the Home Place for him. He did not say the Small Place- but said this place I allow for Wrather- as it was joining Wrather- #16 Where were he and you in the road at the time h made these statements to you- were you or not passing by the Small tract which was adjoining the place where Mr Wrather then lived- Ans Well I couldnt state exactly where we were at but I suppose it was about where the land was at by him saying what he did about the land- as we were passing by or had passed the land at that time #17 Did the said Small tract of land lie in the road from his house to Benton and did he and you pass said tract of land in going to and from Benton on that day or not? Ans Yes sir we did =============================================================[end page 7] No 18 Was it while you were passing that land or on it- or close to it that he used this language. "I allow this land for Wrather- or not? Ans My best recollection is that we were passing by it. #19 He did say on that occasion the he allowed or that I allow the Home Place for Jimmie giving as his reason that he had never given him anything hardly- Is this true or not? Ans Yes sir this is true- This is as near as I recollect word for word what he said. #20 This conversation occurred I believe you said about ten years ago- Is this true or not? Ans Yes sir it is true #21 Was he rightly at himself then or not, in your opinion? Ans Well I suppose that he was- from the fact that he was well enough and stout enough to ride to Benton on horse back, and the then talked as well as usual- and I saw nothing the matter with his mind then- =============================================================[end page 8] #22 Are you or not acquainted with the value of lands in that neighborhood and were you not in the year 1892? Ans Yes sir I am acquainted with the lands in that neighborhood at that time #23 Are you now and were you then acquainted with the said Home Place and with the said Small tract of 60 or 67 acres or not. Ans Yes sir I am acquainted with both places and were then. #24 What was the reasonable value of the said Home Place and the said Small 60 or 67 acre tract sometimes called the "Short Tract" on the 25th day of April 1892? Ans I suppose the "Home Place" was worth $1600.00 and the Small place or the Short Place $300.00 #25 Is this your opinion as to the value of each of them at that time or not? Ans Yes sir this is my opinion of what they were worth. Cross Examined by W.M.Oliver for defts. No 1 Are you a merchant, retailing goods near to the McElrath place- and were you =============================================================[end page 9] [Missing question 1 through question 10. Resume with answer to question 10.] Ans Well sir I dont know. 11 Dont you know that they had nothing to do with each other for several years before his death? Ans They didnt visit each other. 12 How near did they live to each other? Ans They lived a mile. 13 For the last few years, say 8 or 10 years before Thomas McElraths death what child or Son in Law give him the most attention and care, in the way of giving him such things as he needed- corn- medicines &c? Ans Well sir Nary one of them ever gave him but very little of anything that I know anything about- I dont know how to answer that. 14 Which of them gave the old man any- thing- such as corn &c- & which of them visited and looked after his wants most, by bringing and sending little articles to the old man so far as you know? Ans Wrather has for the last few years so far as I know. 15 Do you mean defts C.H. Wrather & wife? Ans I meant C.H. Wrather. =============================================================[end page 10] 16 His son-in-law- the defendant in this action? Ans Yes sir 17 How did the old man McElrath- in his life time, and for several 8 or 10 years before his death speak of deft. C.H. Wrather- & by what name did he call him? Ans When he would speak of him at all he would call him "My Wrather" 18 Say whether or not Thomas McElrath frequently came to your store & got your partner Frank Swift to write letters to C.H. Wrather- and did he not come to your store about the middle of April 1892, to get Swift to write a letter to Wrather for him, and write for Wrather to come up? Ans I dont know. Well thats something I dont know much about. 19 Didnt Frank Swift write letters to Wrather for the old man there at the store? Ans I dont know whether he did or not. 20 Did you ever hear the old man ask Frank Swift to write letters to Wrather for him? Ans I dont know that I ever did. =============================================================[end page 11] 21 Did the old man get you to write any letters to Wrather for him? Ans No sir. 22 Was you the Post Master at Magness P.O. during the years 1892 & 93? Ans Yes sir. 23 Do you remember of the old man Thomas McElrath mailing any letters at your office to Wrather? Ans No sir. 24 How was the old mans mind in his last years when he talked about things which oc- cured a good many years ago Ans [??] name old thing and get his mind on it- his mind seemed better than now. 25 Do you mean to say that his memory was better in relation to event which occured a good many years ago than events of recent date? Ans He seemed to recollect old things better than he could now- or things occurred before he died 26 His recollection about what was told to him and events which happened in his last years was =============================================================[end page 12] not of long duration was it? Ans No sir. 27 What would he some times say when about to leave your store- about his wife telling him to get something more than he had purchased? Ans He would say his old woman told him to get something else but he couldnt tell what it was. 28 Did you ever hear him say anything about his going to fix his business up before he died? Ans No sir I dont think I ever did. Re Examined by JWDycus att for Plffs No 1 You have I believe in your Cross Examination stated that Wrather or his wife gave the old gentleman more attention and more things than any of his other children. Now please state what things- either of them gave or furnished him with and say about when it was as well as you now remember. Ans I believe in the Fall after he was sick Mr Wrather brought him up a load of corn, and sometimes they would send him a Sallet or something that way. and during his sickness he would sometimes =============================================================[end page 13] send him something in a bottle and sometimes in a Jug and the mail would leave it off at my house- after he got up. This was in the Spring, Summer & Fall of 1892 #2 Was or not the old gentleman very fond of his dram, and did he or not frequently take too much when he could get it. Ans Yes sir he was very fond of it and frequently took too much. #3 Now is it or not a fact that during the time you have spoken of that Jugs and bottles were be left off there at your store by the mail carrier who would say that they were for Mr Thos McElrath the old gentleman and that they were sent by Mr Wrather and to be left off there? Ans The mail carrier would say that Mr Wrather had sent them for Uncle Tommy McElrath. He left something in bottles and something in Jugs. he might leave it in bottle two or three times then he would leave it two or three times in Jugs- this was done frequently one at a time then never would come but one at a time =============================================================[end page 14] No 4 State what these bottles and Jugs contained. Ans I do not #5 Did the Jugs look like Whisky Jugs Ans They were little 1/2 gal Jugs #6 And were the bottles such as Whisky is usually put in. Ans They were long necked bottles I expect they are there at Aunt Mary's yet- I did not see or taste the contents of either the Jugs, bottles- though I am satisfied what it was. #7 What did he usually drink as a beverage? Ans He drank Whisky. #8 Please say whether or not he after recovering from that sickness of 1892 several times on going out from home get lost. Tell all you know about this if anything. Ans Yes sir he would get lost very often. We had meeting at our school-house one day- It was about a mile & a half from his house- he hitched his horse in the Buggy and started home and went within four miles of Mayfield- some-one turned him back and he didnt know who it was and he didnt have mind enough to tell [margin note] defts object to the answer & to Question No8 =============================================================[end page 15] this was in the summer of 1892 but I have heard from the neighbors that he would get lost nearly every time he would leave home. #9 To prevent his going off and getting lost so often what did you & his other neighbors and his wife do- [margin note] Objected to by defts Ans We prevailed on him to let Dr Wyatt have his horse. He did so- but [cant read] [cant read] and brought him back home, or had the Dr to bring him. Re Crossed by Oliver for Defts. No 1 You say in answer to question No 8- put by Judge Dycus- that on one occasion when you had a meeting at your school house Thomas McElrath hitch- ed his horse to a buggy & left the school house & got lost & went within 4 miles of Mayfield, and was turn- ed back by some one-TC Now do you know this of your own knowledge- did you see him within 4 miles of Mayfield- or is this hearsay with you? Ans It is hearsay that he went that far- I know what time he left the school-house and what time he got home. =============================================================[end page 16] 2 Did he come home by himself, or have some one with him? Ans He come by himself all but about a mile- and a man was hunting him & when he found him he came on back with him- When he was turned his horse brought him home. 3 Do you know of your own knowl- edge that a man met him about a mile from home, or is this hear say with you? Ans Man said he met him- I wasnt with him 4 Then you do not know of your own personal knowledge that the man did meet him do you- but you only have what the man said about it Is this not a fact? Ans That is all I know about it. 5 Now you have said that when he got turned his horse brought him home- Did you see him get turned if so where- who turn- ed him- Ans I saw him when he got home. 6 But the question is how do you know about his being turned- did you see him turned? Ans If you hadnt turned him he would have =============================================================[end page 17] [remainder of deposition is missing] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of Charles Anderson taken 08-June-1897 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 16-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ The deposition of Charles Anderson taken at the Post Office of Z.B. Magness, in Marshall County Ken- tucky, on the 8th day of June 1897, to be read as evidence, in be- half of Plaintiff, in the case pending in the Marshall Cir- cuit Court between W.J. McEl- rath & others Plaintiffs against Chas Smith, CHWrather & others Defendants. Questions by Plaintiffs Atty JGLovett 1st State your age, residence and occupation? A 54 years is my age, reside in Calloway County Kentucky, occu- pation, a farmer. 2 Are you acquainted with the parties to this suit? and if so how long have you known them. A Yes I am acquainted with them, I have known Mr Wrather some 17 or 18 years- have known Jimmie McElrath about some 2 or 3 years 3 Did you known the deceased Thomas McElwrath in his life time? A Yes sir I did. =============================================================[end page 1] 4 What relation was he with plaintiff W.J. McElwrath and what relation to the defendant C.H. Wrather? A I suppose he was the father of Jimmie McElrath, and he was the father-in-law of CHWrather. 5 State whether or not you rented a piece of land from plaintiff W.J. McElrath since the death of the said Thomas McElwrath? A Yes sir. 6 What land was that you rented? A It went by the name of the "Short Place"- or a part of it at least. It was the North end of the track of land. 7 Who did this land belong to? A While Uncle Tommy McElrath was living it belonged to him- since then to his estate, I suppose. 8 Did you or not, execute a note for the rent of said place, and if so to whom was it made pay- able? A I executed a note, and it was made payable to Thos. McElraths heirs =============================================================[end page 2] 9 What year was it you rented said land? A I rented it in 1895- for the year 1896 10 Did you tend said land your self or did you re-rent to other par- ties? A I tended part of it my-self- and rented a part to Bud Sifford. 11 What became of the note you executed for said rent. A I think Jimmy McElrath traded the note to Bud Sifford- I paid a part of it in work on the place. The note was "shaved". 12 How much rent were you to pay for said place? A I was to pay $25.00 in money and $10.00 in work. 13 How long had you known the said Thomas McElwrath prior to his death and how far did you reside from him during said time? A I had known him for about 17 or 18 years, I had lived from 300 hundred yards to 2 miles from him for that length of time. =============================================================[end page 3] 14 How far did you reside from him the last four or five years just prior to his death? A I reckon from 1/2 mile to one mile or something near that. 15 Did you see or visit him frequently? A Yes sir I did. 16 Please state the condition of his mind and health during said time? A Well I dont know that I am capable of doing that, form what I know he was in rather a fee- ble state of health the last 4 or 5 years of his life. I con- sidered his mind in rather a "scattered" condition. 17 What was the condition of his mind and health during the winter and spring of 1892? A I dont know that I could ans- wer that correctly, I reckon it was in the winter or spring of 1892- and if I recollect correctly about that time I dont think he had much mind. 18 How did he talk and act =============================================================[end page 4] during said time? A That would be a little hard to answer- His conversation was flighty- didnt seem to have his mind firmly fixed on any thing. 19 How was his mind and health in & during the month of April 1892. A To the best of my recollection along about April or May during all the Winter and Spring of 1892- his general health and mind seemed to give down and I considered him scarcely able to do any-thing, mentally or physically. 20 Did you or not in your opinion consider him at any time during the winter or spring of 1892, consider the deceased Thomas McElwrath capable mentally of making a proper distribution of his property or intelligibly disposing of same? A No sir I did not consider him capable of transacting any business according to my judgment. =============================================================[end page 5] 21 Do you know what time he took sick in that year? A I think sir- it was just after Christmas some time- or possibly in January or Febru ary- I had nothing to make me date the time specially but to the best of my judge- ment that is correct. 22 How long after he took sick was it until he was able to nock around the place some again? A I dont think he was able to knock around much that Spring nor that Summer. 23 Did or not his mind improve after he began to nock around the place and if you say it did, did it improve rapidly or slowly? A I consider it to improve very slowly- my judgement is it never did improve much. 24 After he had the spell of sickness in 1892 did you ever have or attempt to have any business transaction with him and if please tell how he acted and did and all abot it? =============================================================[end page 6] A I reckon it was after he had this spell of sickness I had some dealings with him- It was the buying of a cow from him and his wife- Aunt Mary, I went down there, after I bought the cow, to have a settlement with him and Aunt Mary- but the settlement was made with Aunt Mary as Mr McElrath did not have sense enough to attend to any bus- iness. I mean in saying this that he did not want me to pay him for the cow- but was wanting to pay me money- when he owed me nothing. I finally settled with Aunt Mary- and told her to explain it to him. 25 Was he up or down at that time? He was drooping about the place there? 26 Did he ever talk intelligently about business or any thing else after he had that spell of sickness in 1892? =============================================================[end page 7] If he ever did to me- or in my presence- I have no rec- olection of it. 27 When did the said Thomas McElwrath die? A My best recolection is that it was early in the year of 1895. 28 Do you know how old he was when he died? A I dont know- but think he was in his 94th year. 29 If you ever heard the deceased Thomas McElwrath say in his lifetime before the spell of sickness he had in 1892 say thing about what disposition he aimed to make of his land please tell what he said? A In speaking to me about his different children, he has repeat edly told me that he had given to Kale Wrather all that he ever aimed for him to have that he never aimed for him to have another dollars worth of his property, that he had given him more than he had his other =============================================================[end page 8] children, and that he had given Jimmy less than he had the bal- ance of his children, and that he aimed his home place for Jimmy and Charley Smith's wife I can remember this conversa- tion well, for it made some impressions on my mind. 30 Whom do you mean by Jimmie? I mean the Plaintiff in this action- W.J. McElrath 31 And whom do you mean by Cale Wrather? A I mean the defendant in this suit. CH Wrather. 32 How much was the home place of the deceased Thomas McElwrath worth? A I should think- just making a rough guess- it looks like it or to be worth some $1500.00 or $2000.00. 33 How much is the short place which he owned worth? A What is known as the Short place I consider it worth some where about $300.00 34 By way of refreshing you say =============================================================[end page 9] whether or not you ever heard deceased Thomas McElwrath say in his lifetime that he had given C.H. Wrather one of the best homes around here and that he was too lazy to improve it and h never intended to give him another thing? A Yes sir I have heard him say that repeatedly. 35 Was or not the old man Thos McElwrath fond of a drink of whiskey? Yes sir he was 36 Did or not the defendant C.H. Wrather visit him frequently while he was down with the spell of sickness in 1892? Yes sir during that spell of sickness. 37 Did or not Wrather bring the old man whiskey frequently? What is your information about this? Aunt Mary would tell me in =============================================================[end page 10] visiting the place there- that CH Wrather would bring whis- key there- and it was ruin- ing the old man's mind. [signed] C R Anderson I AB Johnston Examiner for Marshall County, certify that the foregoing deposition of CR Anderson was taken before me at the time and place mentioned in the caption, that said witness was duly sworn before giving it, that it was written by me in his presence, and read to and subscribed to by him in my pres- ence. The plaintiff was present by Atty - Defendant was not pres- ent in person nor by Atty Given under my hand this 8th day of May 1897. [signed] AB Johnston Ex. Examiners Fee (AB Johnston) $3.00 Witness Claim (CR Anderson) 1.00 Sheriffs (?H Little) .25 =============================================================[end page 11] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of Simon Lamb taken 04-Jun-1898 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 06-Mar-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ WJ. McElrath & Others vs: CH. Wrather & Others Plffs. Depositions -------- "K" -------- Received from the hands of A.B.Johnston Examiner and filed June 6- 1898 att PHThompson clk For value received I as sign my within fee of $2.00 to Jno G. Lovett AB Johnston Exr Ex Fees $2.00 Read Shrff " .25 Witness 1.00 ------ Dycus & Lovett =============================================================[end page 1] The deposition of Simon Lamb taken on the 4th day of June 1898 at the Post Office of Magness in the County of Marshall State of Kentucky, on behalf of Plaintiff, in the action of W.J. McElrath & Others plaintiffs vs: C.H. Wrather & Others defendants, pending in the Marshall Circuit Court. Questions by Plff's Atty JGLovett 1st State your age, residence and occupation? Ans. Am 57 years old, reside in Calloway County, a farmer. 2nd Are you acquainted with the parties to this suit and if so how long have you known them? Ans Yes sir- I have known them, both parties, for 35 years any way 3rd Were you acquainted with the de ceased Thos. McElrath in his life time and if so how long had you known him? Ans I have known him 35 years. 4th How far did you live from him during said time? Ans. I never lived over 4 miles from him & lived with him 4 years. =============================================================[end page 2] 5th Were you and he intimate friend and did you visit him frequently for five or six years just prior to his death? Ans I never had a better friend- he was near a father to me and I visited him frequently 6th When did he die, and at what age if you know. Ans- He died in 1895 and was about 94 years old 7th Do you remember him having a severe spell of sickness in the early part of the year 1892? Ans. Yes sir. 8th About what time did he take said spell of sickness and when did he begin to recover? Ans. About January or February 1892 and was feeble for a long time dont remember exactly how long. 9th About how often did you visit him during this spell of sickness? Ans. I was there often- as often as once a week. =============================================================[end page 3] 10th State the condition of hi mind during said spell of sickness and after he recovered if you know? Ans. When he was taken sick his mind was good- but after that he never did regain his mind- I would send him word I was coming very often and when I would go he would forget in a few minutes. I was there- he would talk at random and very scatter ing. 11th As his health improved did his mind improve with it? Ans. No sir- it never did improve 12th What was the condition of his mind in April 1892 or at any time after that Mentally capable of making a proper distri- bution of his property or disposing of it intelligently? =============================================================[end page 4] Ans. No sir 14th State what time after he had the spell of sickness in 1892 he began to knock around the place? Ans. A long in the Spring following 15th Was he able then to transact any business? Ans No sir. 16th State what you know if any thing about CHWrather getting a horse from Thos McElrath decd, and not paying for him? Ans. It was about 20 years or more ago- while I was living with Thos McElrath I heard Thos McElrath say frequent ly that CHWrather never paid him for it. 17th If you ever heard the deceased Thos McElrath say, in his lifetime before he had the spell of sickness in 1892, what disposition he intended to make of his land, state what he said? =============================================================[end page 5] Ans. I had heard say often, that he had given Wrather more than the rest of the children and that he never aimed for him to have anything more, that he aimed the home place for Jimmie (WJ) Mc Elrath and Charlie Smiths wife, that Jimmie was a cripple and he had never done much for him. 18 Was this before or after the spell of sickness in 1892? Ans It was before 19 State of you ever heard him say any thing after the spell of sickness in 1892, about the disposition of his property? Ans. I dont think I ever heard him say any thing only he said they told him they had deeded his place away- and he had no recollection of it. and cried over it 20th When was this and who was pres- ent if any body? Ans. It was directly after they had drawn up the deeds- no one else present ex- =============================================================[end page 6] cept his wife Aunt Mary Ann. 21st State whether or not when he told you that they said he had deeded his land all away, he said any thing about not wanting it that way? Ans. It seems to me like he said when he got stout enough, he would go to Benton and change that thing. 22nd By way of refreshing you state whether or not he said that he did not know when he made those deeds, and that he did not remember any thing about them? Ans- Yes, he said he did not recollect any thing about them. Cross Ex by WM Oliver (Defts atty) 1 Do you remember about the plff. W..Mc Elrath visiting in this County four or five weeks after the deeds in controver- sy were executed? Ans- Yes I recollect about his being here. 2 How long did he stay in this County at that time? Ans. I dont recollect- dont think he staid very long- One time he came, staid nearly all the summer, that was after the old man died. 3 What attempt did W.J. McElrath make (at the time he came here soon after those deeds were executed) to sell the land conveyed to him by his father Thomas Mcelrath? =============================================================[end page 7] Ans. It seems to me like he bargained it to John Putnam some way- Seems like he wanted Uncle Tommy to make him a deed and failed some way. That busted the trade. Putnam refused to take Jimmies deed. 4 Say whether or not W.J. Mcelrath and his father Thomas Mcelrath became very angry at each other about this matter on account of the fact that Thomas Mcelrath would not make the deed and deliver the possession of the 67 acres during his life time? Ans. I dont know nothing about that. 5 Did you ever hear Thomas Mcelrath say anything about his son W.J.Mcelrath visiting him on that trip, or about he & his son having any hard feeling, or about his son W.J.Mcelrath getting mad at him be- cause he would not let him sell the land in his life time or during the life time of himself and wife? if so tell all that he said about it? Ans I dont think I ever heard of Thos. McElrath say anything about it. 7 Is it not a fact that neither of the parties - Mrs Wrather - Smith- or W.J. Mcelrath were to have the possession of the lands conveyed to them by the deeds until after the death of himself and wife & that this was the cause of some hard feelings between himself & son W.J.Mcelrath? =============================================================[end page 8] Ans. I dont know anything concerning that. I never heard Thos McElrath say any- thing about that. 8th Did W.J. Mcelrath not advertise & try to sell the 67 acres of land conveyed by his father to him on that trip to the County soon after the deeds were made at public sale at George Mcelrath's residence, and was this not what worried the old man and made him mad, at the time he told you if he had given his land away he knew nothing about it, & cried &c. Ans I dont know anything about that- he might have done it- but I dont know. I never heard the old man speak of Jimmie, I dont think, after he was sick in 1892 9th When & where were you and Thos. McEl- rath when he told you that he in- tended to give the home place to W.J. McElrath? Ans- He told me there at his house. 10th How long ago? Ans I dont know exactly- it may have been 7 or 8 years ago. 11th Tell what you know, if anything about any hard feeling existing between WJ. McElrath and Thos Mc Elrath, at any time, or any thing you may have heard either of them sat about it? =============================================================[end page 9] Ans. I never heard Uncle Tommy say any thing hard about Jimmie all the time I lived there. I never saw or heard Jimmie say any thing about his fa- ther- he may have been in a fret at his father when he left- but I dont know. 21 Say whether or not Thos McElrath dur- ing the year 1892-3&4 loaned money took notes, rented ad leased out his land, operated and managed his farm in a successful way, considering his age, and continued to do so, up to within a few months before he died? Ans. My impression id Joe McElrath did all of his fixing up matters for him - receiving money on notes &c for him. [margin note] this Answer Objected to by Deft. 13 From what source do you get this information? Ans. Get it from Old Aunt Mary his wife and Joe McElrath. 14 Did not Thos. McElrath go around over his farm and premises almost daily looking after same, up until a few months of his death? Ans. I dont know about his going over his farm - but he would come to my house, and I would have to take =============================================================[end page 10] him all the way back home or part of the way. 15th What disease did Thos McElrath have in 1892, when you say he was sick for a good while? Ans La Grippe the Dr's called it. ReEx by Plff Lovett 1 You dont know any thing about Jimmie's trying to sell the place to Putnam ex- cept from hear say do you or not? Ans. No sir it was all hear say. [signed] W J lamb State of Kentucky Marshall County I AB Johnston Examiner of Marshall County certify that the foregoing deposition of W J lamb was taken before me at the time & place stated in caption that said witness was duly sworn before giving it, that it was written by me in his presence and read to & subscribed to by him in my presence- Plff & Deft both present by Atty only Given under my hand this June 4th 1898 AB Johnston Ex Ex Fees $2.00 Sheriffs " 25 Witness claim$1.00 =============================================================[end page 11] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of C.H. Wrather taken 9-Dec-1895 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 26-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is typewritten, with some handwritten insertions and corrections. These notations will be set within quotation marks. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ The deposition of C H, Wrather taken at the law office of Park & Speight, in the city of Mayfield, Ky. on the 8th, day of June 1898, by agreement of the parties, to be read as evidence in an action pending in the Marshall Circuit Court in the case of W. J. McElrath and others against C. H. Wrather and others. By plaintiff's attorney, Hon. J.G.Lovett. 1----You say he fell out with his father is the reason he left in 61; how do you know, and what did he say about his falling out with him? A---------Well, he came to my house and staid alnight. They was in a row--I think the old man was bemoaning him about what he was doing. 2----Were you present, and if so, tell all that was said? A---------I was not present, but Jimmy told me about it. 3----How long was he gone from Kentucky? A---------He was gone from here 21 years I think, but the first time he came back for there, he left one winter and came back the next spring to kill Gabe Jones, and shot at him, and then went back. 4----When was this? A---------It was in---I don't think I can give the date. 5----What is your best recollection? A---------In 80 I think, to the best of my recollection, in 80 or 81. 6----Were you present when he shot at Gabe Jones? A---------I was not. 7----You don't know then that he shot at him? A---------Well, the whole neighborhood told me so--Gabe Jones himself. 8----All you know about it is hearsay, is it? A---------It is. 9----How long did he stay on that trip? A---------One night. =============================================================[end page 1] 10----Do you know he only stayed one night? A-------Well, he went back through my field the next morning. 11----Where did he stay that night? A---------At Green Theats. 12---------Did he visit his father on that trip? A----------He did not. 13- How do you know he did not? A----Well, his father told me he did not. 14---When did he tell you? A---He told me during that week. 15----What week? A------The week he came and left. 16---What did his father say about it? A---Well, he said that he had come in, but that didn't see him, and that he shot at Gabe Jones. 17--Did his father say that he saw him shoot at Gabe Jones? A---No sir. 18------When did he again visit Kentucky? A---Not until after his father made the dees [sic] to the land. 19----How do you know this? A---Well, he came to my house. 20---Who did? A---Jimmy McElrath. 21---When? A---When he came back in 1892 or in 1893, and I have forgotten which. 22------Do you know whether or not he visited his father in 81 or 82, the time he shot at Gabe Jones, until in 1892? =============================================================[end page 2] A----He did not. 23----How do you know that he did not? A----Because he was in Arkansas, and I taken care of the old man. 24----Where were you living during the period the time you say he came to shoot Gabe Jones in 82? A----Part of the time in Marshall County and part of the time in Graves County. 25---What portion of the time in Marshall County, and how far from decedent, Thomas F. McElrath? A----Well, I lived within three-fourths of a mile of him, about eight years; the first eight years, and the last eight ro ten years I have been living in Graves County. 26----How far from Thomas F. McElrath's? A----About fifteen miles. 27----What you mean to say, is, if he visited him between 82 and 92, you don't know it? A---Well, I know he did not, if he had I would have known it. 28----Are you willing to swear positively that you know he did not visit him between those dates? A---I am. 29----Who went with Jimmy to his fathers, when he went in 1892? A---I did. 30-----What time of year was it? A----Well, to the best of my recollection, it was in the fall. 31---Did the old man Thomas McElrath know his son, Jimmy? A-----After he talked with him a few minutes he did. =============================================================[end page 3] 32---Tell how they met, and how they treated each other? A----Well, very well. 33. Tell what they said? A---Thomas McElrath asked him how much land he had, and how many chil- dren he had, and what it (the land) was worth, and so on, I can't tell all that was said. 34----Was that the first thing he asked him, how much land he had? A---No, I think he askedfirst how many children he had. 35-----That don't answer my question, didn't you state in your exami- nation in chief, that their "meeting" was unkind? A----When they met it was kind, and when they parted, it was not. 36---How long did Jimmy stay there? A----At his fathers? 37--Yes sir, at his fathers? A--- We got there about 10 o'clock and left about 2 O'clock, and that was the last time he was in his house during the term he was here. 38------How do you know that to be a fact? A---Old Aunt Mary Ann told me so. 39----When and how came her to tell you? A----Well, I was over there, and asked where he was, and she said he had gone home, and had not been there any more. 40---Now, tell all that was said in the conversation in which you said they fell out or that their feelings were unkind? A----I don't know as I can tell it all, but it came up about Jimmy sueing him for the amount of $12. the old man raised that on him, and that was what brought up the unkind feelings. =============================================================[end page 4] [note there is a separate page included] 35a---They treated each other unkind on that visit, di they not? A---No sir 35b----Didn't you state in your examination in chief that they did? A----Well, now when Jimmy went to start, I told him to stay there and I went to catch my horse, and he said, "no, b-- G---" he would not stay there for a $100. or something of that kind. =============================================================[end page 4a] 41-------What did the old man say to him? A------He said he thought he ought not to have done it. That is about all I could say about it. There was a right smart said. but "I" never Paid much attention to it. 42-------- And what did Jimmy say? A---He didn't say much of anything. 43. Is that all the angry words that was said between them? A---I told you all of it that I could. 44---Is that all you remember? A---It is. 45---You think that is the substance of their disagreement? A--Yes sir, I did at that time. 46---If they had any at any other time, you were not present? A----No sir, I was not. 47---Didn't you state in your examination in chief that it came up over Jimmy trying to sell the land which his father deeded to him? A---Well, that was when he came in 93. 48---Didn't you state in your examination in chief, that was in 92? A----In 92 or 93. 49---On that trip you have been talking about in your deposition? A---No sir, that was the first trip--he has been here two or three times. 50---In what year was that? A---if I was at home and had some papers, I could tell exactly. 50---What is your best recollection as to when it was? A---In was in 92 or 93, and I would not say which. =============================================================[end page 5] 52--Then you was mistaken in your examination in chief, were you not, when you stated that they fell out because the old man shamed Jimmy from selling the place under his nose before his death? A---That statement was made the first time that Jimmy came in here to sell the land. 53---I asked you, was that statement correct or incorrect? A---Well, I am satisfied this one is correct. 54---Then the other one is incorrect, is it? A---Must be. 55---When did Jimmy next visit Ky., A----That was when he came in to bring the suit I think. 56--That was in 1896, was it not? A--I think so. 57--Then Jimmy never visited Ky., from 82, the time you say he came to kill Gabe Jones, until 92, did he? A---My best recollection is, he has been here three trips since he left. 58--That would make three trips, would it not, one in 82, and one 92, and in 96? A--Yes sir. 59- Now wasn't it in 72 that he came to kill Gabe Jones? A---Well I am not positive about the dates. 60---Didn't you state in your former depostition that it was in 72? A---I might have done it. 61--Who was present at the time you heard the conversation in which Jimmy and his father fell out over the land? A----My self, Jimmy and his father and mary Ann "his wife" =============================================================[end page 6] 62---What lands did decedent Thomas McElrath give your wife in her lifetime? A----None, only what he deeded to her in 92 or 93. 63--Didn't he give her a piece of land before that, known as the "Peterson" land? A---He did not. 64--Didn't he furnish the money to pay for the Peterson land? A-----He furnished $400. in lieu of a negro that he gave the balance of the children. 65--What was the price given for the Peterson land in 61? A---$10. per acre, $800. for the 80 acres. 66. I see that the deed from Peterson to you, gives $400 as the con- sideration? A----That is what he paid. 67--Why was it he didn't state the true consideration? A---He paid $400. in cash and I gave my notes for the balance. 68- Why does the deed recite that the $400. was all that was paid, and does not mention the part that "was" not paid? A---Peterson was owing him $400. and he gave "him" up his notes, and I gave my notes for the other $400. and took the deed. 69---How many notes did you give, and when were they payable. A--I gave two, twelve months I believe, I think that is about the time, 70--What did you do with the notes after you paid them off? A---I took them home, and aimed to have brought them, but they have been misplaced somewhere. =============================================================[end page 7] 71. When did you last see them. A---I don't know that I have seen them since I moved to this County. 72--How came you to hunt for them, were you expecting to be called upon about them? A---I have hunted for them since this suit was instituted. 73---When was this. A---It was in the last year or two. 74----You had no trouble in finding the due-bill in which you say you paid decedent Thomas McElrath for the horse? A---I did not. 75----And that was given before the notes for the land, and paid off? A---No, it was given after that. 76---How long after? A---I don't know, a year or two. 77--Two or three years? A---I don't know exactly. 78. What other property did Mr. McElrath ever give your wife, person- al or real estate? A---One horse, bridle and saddle. 79--Anything else? A---No sir. 80-- Didn't you state in your former deposition that he gave the rest of the children a horse, bridle and saddle and never gave your wife anything, except what he paid on the Peterson land? A--- I do not think I did sir. =============================================================[end page 8] 81--What was the section of land deeded to your wife in 1892, worth? A---i don't know how land is selling up there: it is not worth much. 82--Do you know what Mr. McElrath valued it at? A--Well, sir, I go by the tax Assessor's book at Benton. He valued the two quarters and the 67 acres at $900. so the Assessor's books show. 82--In what year did he list it at this? A---I traced the assessor's book back to 90 or 89, and it ws the same all the way. 83--describe the kind of land this is? A---Well, there is a heap of it cleared and worn out, broken, fences all down. 84--The larger portion of it lies level, does it not? A---About half I reckon. 85. How much do you think it is reasonably worth per acre. A---Some $2. or $3. 86--What kind of land was the 67 acre tract deeded to W.J.McElrath. A---It's level, and pretty well improved. 87--What is it worth per acre. A---I offered him my quarter for his 67 acres before he brought this suit. 88---But how much is it worth per acre? A---It is worth $6. or $8. per acre. 89, When and where were you when you offered to swap with him? A---I was right at my own house. 90--Who was present? A---My wife, and it as just a =============================================================[end page 9] week before he brought the suit. 91. Now when you offered him that, you was only trying to bluff him to keep him from bringing the suit. A---I was not, I will do it yet. 92--Why didn't you speak of this in your deposition in chief. A---I was not asked about it. 93. You was not asked about it this time, were you? A---You asked me where the conversation took place. 94--What property, if any, decedent, Thomas J. McElrath, had given to W. J. McElrath prior to the deed he made to him in 1892? A---Gave him a negro, horse, bridle and saddle. 95--What sort of a negro, what age? A---It was a negro child. 96---In what year did he give it to him? A---I don't know as I answer that correctly. 97--Was it not about 61 or 62? A---62 or 3, to the best of my recollection. 98--How old was the child and was it male or female? A---I cannot tell you whether it was male or female, and I don't know how old it was. 99--What do you think the negro child was worth at that time? A----It was valued at $400. 100--I know, but did you think it was reasonably worth that much at that time? A---I do. 101. Do you think it would have sold at that price at a voluntary sale? A--I do. =============================================================[end page 10] 102--How came you and Willingham to go up there in 92, the time dece- dent, Thomas McElrath, made the deeds to your wife and Mrs. Smith and W. J. McElrath? A---He wrote me to come and I went, and he got me to go and get Cope- land to come and write the deeds. Something turned up that he didn't come, he then told me to go home and get a lawyer or a clerk and come back, that he intended to make his property "over" while he was living and I come back and got Willingham. 103--Didn't you take Willingham on the first trip after he wrote you? A---I did not. 104--How long was it from the time he wrote until you did take Willing- ham? A,---He wrote me on Saturday, and I went up on Monday and stayed there until Tuesday evening, then came back and got Willingham, and went back. 105--When did you get back? A--I don't know as I could tell you the day of the week. It was on the 27th, day of April 1892 or 93, but I don't know the day of the week. 106--Then it must have been a week, must it not, from the time he wrote until the time you carried Willingham up there? A---No sir, it was in the same week. 107--If he wrote you on Saturday, it was not the same week, was it? A--Well, I didn't go up there until Monday. 108. Did you go after R. C. Copeland to write the deeds after you went on Monday? A--I did. =============================================================[end page 11] 109--Why didn't he come and write them? A---He promised he would, but didn't, the reason why he didn't come, I cannot tell. 110--Did you go Monday or Tuesday. A--Monday evening. 111, Where was he, at home? A---He was in his store. 112. Now, didn't he tell you that he was not going, that the old man did not know what he was doing, and that the deed would be no count, and he was not going? A---No sir, he did not. 113. Anything said about that? A---There was not a word said about it. 114--When did he say he would come and write the deed? A---Next morning, if nothing came up. 115--Did you see him any more about writing it? A---I did not. 116--Did you not make more than one trip to get him to write the deeds. A--I did not--I seen him for a witness to witness the deeds. 118. Where is the letter that he wrote you? A--On file there at Benton, no I am mistaken, I thought you meant the letter that Jimmy McElrath wrote. I do not know where that is, I never could find it. 119--Do you know what you did with it? A---I do not. =============================================================[end page 13] 120--Have you no recollection about it? A--I have none. 121--Now, don't you know you destroyed that letter? A---A--Well sir, I did not do it--It has been misplaced. 122--When did it get misplaced? A------Sometime from the "time" deeds was made up to the time the suit was brought. .23--Why is it now, if you can explain, that you have the due bill, which you paid off for the horse sometime ago, and you have the letters which Jimmy wrote to you, but you have misplaced the notes you say you paid off to Peterson and the letter that Thomas McElrath wrote you? A---I have got a box that I keep all my notes in, and that is how I come to keep that one. I can show you every tax receipt I ever paid in my life, and he wrote it on a postal card, and I never pay much at- tention to them or letters that are not sealed up, and it was lost. 124--Did you ever show that letter to anyone? A---I did, to Willingham. 125--He was the lawyer who wrote the deeds, was he not? A---Yes sir. 126--An was employed in this case, wasn't he? A---Yes sir, but he failed to show up and I got Mr. Reed to attend to it. 127--Give the contents of that letter? A----He wrote to me, to come up, that he had some business, that was about all there was in it. 128--Did you ever show the card to anyone except Willingham? A,,,I do not think I ever did. =============================================================[end page 14] 129--Have you ever seen it since that day you showed it to Willingham? A--I do not think I have. 130--Did you ever show it to Mr. Reed or Mr. Oliver? A---No sir. 131. Now don't you know it is a fact that decedent Thomas McElrath could barely write his name, and that he got Joe McElrath, his nephew to do all of his writing for him, and see after his business? A---He could write his name, and if you will look at the deposition of Joe McElrath, he never done any for him at all, only to count up the interest on a note or two. 132--After he had this spell of sickness, is not a fact he could only write his name, and that you could scarcely read it. A---What spell of sickness? 133. That spell of sickness he had in 92? A---He could write his name or read a newspaper a good as I could. 134--Do you mean to say then, that he could read intelligently and write a legible hand? A---No, not a first-class hand. 135--Could he write so that you could read it? A---Yes sir. 136--Anything more than his name? A---Well, I don't know about that, never seen him write anything but his name. 137--You saw the card he wrote to you? A--Yes sir, saw the one that came from him, I don't know whether he wrote it or not, I was not there. =============================================================[end page 15] 139. You know his handwriting, don't you? A----I think I do. 140. Was the card in his handwriting? A---It was not. 141. In whose handwriting was it? A---Swift, Frank Swift. 142--Frank writes a very legible hand, doesn't he? A--Yes sir. 143. Why haven't you taken Frank's deposition to show that he wrote that card, and what the contents were? A Well, I did not think I had any business to take his deposition just to show who wrote one postal card. 144. How often did you visit the old man while he had this spell of sickness? A----every week or two, some of the family was there all the time. 145. You carried him whisky on that trip, didn't you? A---When he would send for it, I would. 146---How many times did you take him whisky. A---Several times, I don't know. 147-------did youcontinue to take him whisky up as late as April or May 92? A---I do not think I did. 148 The old man liked his drink pretty well, didn't he? A---Yes sir. 149--And whisky made him wild, didn't it? A-----Yes sir. =============================================================[end page 16] [missing page 17] =============================================================[end page 17] 158---When did his mind began to improve after he had that spell of sickness in 92? A----As soon as he commenced getting well. 159---In what time of the year was that? A---Well, it was in the latter part of the winter I think. 160 ---About what month and about what time in the month? A----Well, it is guess-work, I would say in January or February. 161---What time did he take this spell of sickness? A----My recollection that it was in the fall of 91. 162---Now is it not a fact he didn't take sick until about January 92? and did not recover until a short time before the deeds were made. A---No, he had been up for months before the deeds were made. 163---Didn't you tell Joe McElrath and John Putman, a short time after the deeds were made, that the old man was as crazy as a bug? A----I told them---Joe McElrath, John Putman and Bob Thweat, that the old man had gotten hold of it, that he had come in to sell his land, and the very thoughts of it ruined him. These are the exact words I told them. 164.--Where is your deed to the land? A------It is at home. 165---Why didn't you bring it with you, you said you looked for the Peterson notes. A----I did not think I would have any business with it here. 166----Would you send it to the Clerk of the Marshall Circuit Court to be filed as a part of your deposition, to be returned to you as soon =============================================================[end page 18] as the suit is disposed of? A----You have a copy of it at Benton, and you can go there and see the proceedings. 167---Where is a copy of it there, what place? A----County Court Clerk's office. 168----Why didn't you file it as part of your deposition, as you did the other papers? A ----Because they did not call on me for it, I had it there. 169-----When you gave your deposition in chief. A---I did. 170----Show it to your lawyers? A---I don't know whether I did or not, but I taken it with me. 171---When was it Jimmy McElrath tried to sell you the "Short" place? A-----After he came in here to sell it. 172----What did he ask for it? A----My best recollection that it was $300. 173---You stated that there was 67 acres of it and that it was worth $6. or $8. per acre, why did you not buy it? A,----He would not record his deed. 174---Why would he not record his deed? A----He said that he didn't intend to, that is all I know about it. 175----Who was present? A---Joe McElrath, Bob Thweat, John Putman and myself. 176, you say the old man dictated those deeds? A---He did. 177----And did Willingham write them down word for word as he dictated them? A---That is my understanding. =============================================================[end page 19] 178----Were you present when they were written? A---Part of them I was. 179---What part? A---The last part of them. 180--What was the last part, whose deed was that? A---They were both in one, mine and Mrs. Smith's were. 181----You were present were you, nad heard the old man dictate and saw Willingham write both of those deed? A---I told you a part of them. 182--Well how much of them? A---About half I reckon. 183---Was the old man sitting up? A---Yes sir. 184---How far was he sitting from Willingham? A---Four or five feet. 185---In the same room? A---Yes sir. 186---Who else was in the room? A---The old lady was in there, and no one else. 187---Where were you when he wrote Jimmy's? A---I was in there when all of Jimmy's was written. 188. Which did he write first? A---My wife's and Mr. Smith's wife. 189---Did the old man dictate Jimmy's? A---Yes sir, and told Willingham that he "had" intended that place for him ever since he bought it. =============================================================[end page 20] 190--Willingham wrote down just what the old man dictated-word for word-did he? A---I suppose so. 191----What was said between you and the old man and Willingham when you first got there that day? A---Well, he said he was glad that Willingham come, and he talked to Willingham until I went after Dr. Wyatt, and he told Willingham that he knew more people here, and could tell things better than he (Willinh- ham) could. 192--You present and heard that? A---Yes sir, and he asked him about all the old citizens here, about L. Anderson, Beadles', Bolingers', he asked him about all of them. Me and Willingham came out to start, he went with us to the stables, and caught his horse and we brought our buggy out, and he led his horse out to the gate, and Willingham, said, "let me help you up", and he said "No sir, I am not so far along as that yet", and he mounted his horse and started off around his farm. 193---What was said about writing the deeds when you first got there that morning--tell me all that was said? A---I don't knwo as I can tell all that was said. he said he was glad that he come, that he had been wnating his business fixed up for a long time. There was a whole lot more, but I don't recollect any- thing else, can't bring it to mind. 194---Were the deeds written before you went to Wyatt's? A--No sir. 195---Was he present when the deeds was written? A---No sir. but he came in and saw him sign them, "he and the old lady" =============================================================[end page 21] 196--How many drinks of that whisky that you and Willingham carried that you gave the old man? A---I do not know that he drank any of it. 196--What is your best recollection about it? A---My best recollection is, that he did not. 197--Why didn't you give a drink of it, you said he liked his dram? A---We did not start from town with but a pint, and we drank out of that. After the deeds were made, we gave him the bottle or what was left in the bottle. 197--Where were you when you gave him the whisky? A---Out at the stables--in the lot. 198-- Cross examined by W. M. Reed, Attorney for "Defendents" 1--Have you seen your deposition, or read the same since you gave it and upon which you have been cross examined today? A---I have not. 2---Have you yet read same or any part of it? A---I have not. 3---State whether or not you started to read your deposition before the cross examination, and plaintiff's counsel took it away from you, or asked you to let him see it, and then would not give it back to you? A----He did. He would not. 4---State whether ro not he had your deposition before him all the time he was asking you questions? A---He did. 5---State whether or not he refused, even to let your counsel see it at any time? =============================================================[end page 22] A----He did. 6---You have stated in your depostition that Thomas McElrath dictated the deeds to Willingham; explain what you meant by "dictating the deed". A---He dictated, and what I meant by that, was he told Willingham how he wasntd his property divided up. 8----Do you mean to say, that the old gentleman furnished the words that were put in the deeds? A---He told him how he wanted his property conveyed. Objected by attorney for plaintiffs. Re direct. 1----Why didn't you state when I asked you about the dictating? A---Just simply because I did not unstand your question I reckon. 2---You had a talk with your counsel after I concluded my cross exam- ination before you were questioned by your counsel, did you not? A---Somewhat. 3----If he just told him what he wanted put in it, if this is what you meant by "dictation, why didn't you say so in answer to my question, that the old man sat within three or four feet of Willingham and he wrote down what he dictated. A---The word "dictating" I thought was how he wanted his property dis- posed of. That is an explanation of the whole thing; now you have it in a nut-shell. 5---Who explained to you what the word dictating meant? A---I explained it right there. Signature waived. =============================================================[end page 23] State of Kentucky. County of Graves. I, E. D. Ayers, Examiner in and for the County and State aforesaid, certify that the foregoing deposition of C. H. Wrather, was taken before me at the time and place stated in the caption; that said witness was duly sworn before giving said deposition; that by agree- ment of the parties through their attorneys, John W. Lovett attorney for plaintiffs, and W. M. Reed, attorney for defendents, said deposi- tion was taken in shorthand by at the time and place afresaid, and were afterwards correctly transcribed by me on the typewriter. Plaintiff was present by attorney, and defendent, C.H.Wrather, was present in person and by attorney. Given under my hand, a Examiner afore said, this 10th, day of June 1898. "E. D. Ayers" EX C.C. Examiner's fee-------------------------$2.00. Paid by J.G.Lovett. =============================================================[end page 24] ++++++++end transcription++++++++++++++++++ W.J. McElrath v. C.H.Wrather re: Estate of Thomas McElrath Deposition of Joe McElrath taken 24-Sep-1898 Transcribed by David A. McElrath sdjjjnmc@bellsouth.net 14-Feb-2005 ++++++++transcriber's notes++++++++++++++++++ This document is completely handwritten. Transcriber's comments appear in brackets [ ]. When a word could not be read, it appears in brackets with the uncertain letters as "?", such as [ex??p?e]. The transcriber attempted to reproduce the same formatting as appears on the originals, keeping the same line breaks and columns. Page breaks are shown as ================ beginning in the far left. ++++++++begin transcription++++++++++++++++++ Marshall Circuit Court. The deposition of Joe McElrath taken on cross examination on the 24d [scratched over] of September 1898 at the Law office of Reed Greer & Oliver in the town of Benton Marshall County Kentucky to be read as evidence in an action in the Mar- shall Circuit Court wherein WJ McElrath & others are Plaintiffs and CH Wrather and others are Defendants. Question by WM Reed atty for Deft. Are you the same Joseph McElrath who gave his deposition in this action on the 9th day of September 1898 Ans. Yes sir. 2 State whether or not during the year 1892 and after the illness of Thomas McElrath in the spring of 1892 he visited in the neighborhood and rode horseback about from place to place went to the post office and got his mail when he wanted to. =============================================================[end page 1] Ans. He rode about from place to place in the neighborhood and went to the post office half a mile distant from his house to get his mails and some times his whiskey sent to him by Wrather or some one else. 3d Did he or not bridle, saddle and mount the horse himself and with out assistance Ans. sometimes he did and some- times he didn't. some time he had the help of the Old Lady 4- Did or not this continue up until a very short time previous to his death. Ans. Good portion of the time from 1892 he was able to ride about frequently around his farm 5 Was his eye sight good or was it bad =============================================================[end page 2] Ans. He could see to read good print with glasses, but he couldn't see to tell a person more than 20 or 30 feet that is when he was able to be up 6- Is it not a fact that he had great difficulty in recognizing his friends on account of his eyesight? Ans- There is no question but that was a part of the cause of it. 7- Did Thomas McElrath take a news paper during the last years of his life say during the year 1892 up until his death in 1895 if so what newspaper? Ans- yes he did take a news paper from 92 till his death except about 12 months during that time. Paducah news 8- If you know tell why he did not take it during that year? =============================================================[end page 3] Ans- He said he couldnt see to read good or very well or something of that kind, but he did after that time take the Paducah News again. 9- Was he taking it at the time of his death? Ans- I think he was. 10- Was he or not very fond of reading newspapers and did you or not often see him reading the paper he was taking from 1892 to 1895 & up to the time of his death. Ans- He was very fond of reading the newspaper till 1892 till his first sickness. after that I saw him reading the news papers. 11- How frequently? Ans- I cant answer that question I dont know how often. 12- During the time spoken of did he not frequently come to your house =============================================================[end page 4] and send for you to come to his house to count the interest on notes when he wanted to collect money or debts due him. Ans. yes he sent for me until he got very feeble and the Old lady would send for me or come myself to see to the collection of his money 13- You have not yet answered whether he frequently or occasionaly came to your house during that time for that purpose. Ans. Yes he came to my house for that purpose. he was there and I recollect He collected some money. I was there and counted it for him. 14- When was this & how long before his death Ans. I dont recollect just how long before his death. =============================================================[end page 5] 15- About how long? Ans. It was a year or two before his death. I cant say positively how long. 16- He did come to your house after 1892 for that purpose on other oc- casions did he not? Ans. Yes sir dont recollect the time nor how many times. 17- The old gentlemans health was very poor for several years before his death was it not? Ans. It was. 18- Did he or not get you to count interest on notes, and to assist him to collect same previous to his sickness in 1892 referred to by you? Ans. I have counted interest on money for him, but he done his own collecting. =============================================================[end page 6] 19 Well that is all you did after his sickness in 1892 was it not? Ans- I counted the interest and the money for him. 20- Was Mr McElrath an educated man or was his education very limited & could he count interest at any time Ans. His education was very limited. Cant say about his counting interest. Crossed The intestate took and read a newspaper generally for many years, did he not, and seemed to be fond of reading them. Did he read much after his illness in 1892 or not- how was this. Ans. He did. seemed to be fond of reading- He read some not so much - very little after 1892. No2 At the time he came to your house after 1892 and collected some money you counting the interest for him say whether or not his wife was with him Ans. My recollection she was. 3- Who counted the money for him, he or you Ans. I counted the money. =============================================================[end page 7] 4. Could he then count money or not Ans. I dont think he could or he would not have put me to counting it. 5- Did he request you to count for him Ans He did. 6- To whom was the money handed; to him or to his wife Ans The money was counted by me and the man who paid it on his knee. I dont remember whether he or his wife took charge of it. 7- Now say whether or not judging from what you knew of him and from his conduct, his actions and his conversations, he was at any time after his serious illness in the winter and spring of 1892 rightly at himself and mentally capable of doing business or of intelligently disposing of his property Ans I dont think he could dispose of his property intelligently, and of this I'm satisfied in my own mind and that he was not rightly at himself from that time until his death. 8 About what was the age of the negro child given by him to his son W.J. McElrath Ans Well I dont think is was over two years old =============================================================[end page 8] 9 Who is using and cultivating the land embraced in the deed from Thomas McElrath deceased to defendants Smith & Wrather? Ans A man by the name of Creason 2 How long has he been cultiva ting it, and from whom does he rent it? ans. I think this is the second year. I thinks he rents it from Plaintiff Mary Ann McElrath 3= Has or not plff Mary Ann McElrath held and used same continuously since the death of her husband Thomas McElrath? Ans. I think she has. 4. Who lives upon and cultivates & uses the 67 acres conveyed by decedent Thos =============================================================[end page 9] McElrath to plff W.J.McElrath, now in con- [???]ing in this action? ans:- William Eggmon. 5 How long has he lived upon it? Ans. Well this is the second crop 6 Who lived upon it before Eggmon went upon it & how long did he live there? Ans. I dont believe any one has lived on it since the death of the Old Man except Eggmon, Charley Anderson and Sifford. I now recollect of Bud Sifford living there one year Anderson one year, and this man Eggmon two years. 7 From whom did Sifford, Anderson & Eggmon rent this land & how much have they each paid? Ans: My understanding is that Anderson rented it from Jim McElrath. I dont know who Sifford or Eggmon rented it from. =============================================================[end page 10] Re. Examined by John G. Lovett attorney for Plaintiff No1. Do you know from whom William Eggmon rented the 67 acre tract deed to Plaintiff W.J.McElrath in this case or to whom he pays rents? Ans I dont know who he rented it from or who he pays the rent to 2- State whether or not the year that Sifford and Anderson cultivated the 67 acre tract ["Do you know the year" scratched out] they executed their note in payment for same to the heirs of Thomas McElrath deceased. Ans I dont personally know anything myself but my understanding is that the notes were payable to the heirs of Thomas McElrath Mr Anderson told me that =============================================================[end page 11] 3- State whether or not Sifford and Anderson both cultivated the 67 acre tract the same year. Ans. My recollection is that Anderson 1st rented it & subrented it to Sifford 4- State whether or not for the last 5 or six years prior to the death of Thomas McElrath, you generally saw after his business, and wrote notes for him and calculated interest and so on. Ans. Yes I did. 5- State whether or not for the last 5 or 6 years prior to the spell of sickness Thomas McElrath had in 1892, the defendant Cale Wrather looked after his business or any business for him =============================================================[end page 12] Ans. If he did I never knew anything about. 6- For the last 5 or 6 years prior to said spell of sickness were the decedent Thomas McElrath and defendant CHWrather on good or bad terms. Ans Well not good terms. 7- Were they on speaking terms and did they or not visit each other Ans Not for several years and I dont think Uncle Tom ever visited him at all. crossed by W M Reed 1 Why was it that Cale Wrather was so kind in sending him liquor if they were not on speaking terms =============================================================[end page 13] Ans. I suppose they were on speaking at that time. it was years before this that they were not on speaking terms. [signed] "Jos McElrath" Clo[???]s attendence 1 day Witness 1.00 State of Kentucky Marshall County I, Cecil Reed, examiner from Marshall County do certify that the fore going deposition of Jos. McElrath was taken by me at the time and place mentioned in the caption, that said witness was duly sworn by me before giving it: that it was written by me in his presence and read to and subscribed to by him in my presence Plaintiff and Defendant were present by atty's only Given under my hand this the 24th day of September 1898. Cecil Reed Ex for Marshall County Ex's fee $2.00 Witness 1.00 =============================================================[end page 14] W.J. McElrath Plff vs || Depositions C.H. Wrather Deft "O" Filed Oct 4 98 Attest P Thompson Clk By CReed DC Fees paid by CHWrather Oct 4-98 Fees $2.00 Reed Greer & Oliver Atty Deft. =============================================================[end page 15] ++++++++end transcription++++++++++++++++++