YANCEY COUNTY, NC - WILLS - Estate Records of Andrew and Rachel Banks ==================================================================== USGENWEB NOTICE: In keeping with our policy of providing free information on the Internet, data may be used by non-commercial entities, as long as this message remains on all copied material. These electronic pages may NOT be reproduced in any format for profit or for presentation by other persons or organizations. Persons or organizations desiring to use this material for purposes other than stated above must obtain the written consent of the file contributor. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. This file was contributed for use in the USGenWeb Archives by: Marshall L. Styles marshallstyles@yahoo.com ==================================================================== Estate Records of Andrew and Rachel Banks Transcribed from the original records by Marshall L. Styles, marshallstyles@yahoo.com Estate records of Andrew and Rachael Turner Banks. Yancey County Original Estates, North Carolina State Archives. Because the estate records of Rachael, who died after Andrew, are so closely linked to Andrew's estate, and the documents in one file sometimes refer to documents in the other, the proceedings are listed chronologically. Andrew was born 5 Nov 1797, died 22 Jul 1857. Rachael was born Feb 1794, died Jan 1875. Much of the probate records for Andrew are missing from the files. However, a significant amount yet remains relating to Rachael. The estate was co-mingled, because Andrew's estate was not yet settled when Rachael died 17 years later. Prelude: An article in the Asheville News, 30 July 1857: "FATAL AFFRAY... There was a dreadful affray at Burnsville last week [In front of what is now the Nu-Wray Inn], resulting in the death of Andrew Banks, and the severe injury of one or two other persons. Banks was stabbed by a man named Reuben Edwards, late on Monday evening, and died early next morning. Edwards was brought to this place and lodged in jail on Thursday last." Comments on the case may be found in Judge David Schenck's diary, Southern Historical Collection, UNC, Chapel Hill, pp. 22-23, a transcript of which was graciously provided by Yancey County native Lloyd Bailey of Duke University. "Burnsville, October 12, 1879 - Sabbath. Burnsville is a Dark and Bloody Ground. It is situated in the foothills of the Green Mountains and near the valley of Little Crab Tree Creek. From an elevated spot, where stands the [Burnsville] Academy, a lovely view of the valley may be seen for two miles, and while standing there the other day with Colonel Davidson and admiring its quiet beauty, the Colonel called it the "bloody ground" and told me that thirteen homicides had been committed in the distance embraced by our vision down the valley. Three of them at the grog shop where John Woodfin fell - Thomas Boon is now in jail here, convicted in Madison Court, for the murder of one Butner at this same "Devils' Dead Fall" and his case is now before the Supreme Court for review. Colonel Davidson says seven Boons have commited homicide in this County in the last twenty years and have all so far, escaped the penalties of the law... These Boons are close collateral relations of the famous Daniel Boon and came to this County from Wilkes and Watauga." The diary continues, "Colonel related to me, that on one occasion here, two young men, the one named Tipton, the other BANKS, had a severe recontre in the street and Tipton bit Banks badly on the cheek, causing the blood to flow copiously. The fight was witnessed by their repective fathers [Andrew being the banks man's father] and when it was over the old man Tipton boasted loudly and repeatedly that he had taught his son to bite when he fought and boasted of the present achievement in very insolent language. The old man Banks bore it for awhile and then suddenly becoming furious, he rushed at the old man Tipton and they engaged in a fierce struggle and in it [Andrew] Banks bit Tipton in several places and literally gnawed his finger. They were parted; Erysipelas set in on the finger of Tipton and he died in three days. He was "hoist on his own petard." Banks, whose name was Andrew, was afterwards killed near the town by one Edwards who cut him all to pieces with a knife." From "Heritage of the Toe River Valley", Vol. 1, NC, Lloyd R. Bailey, editor; "From the Reverend Samuel D. Tipton's letters, the genealogists also learned that Wiley Tipton, Sr. married in Yancey, got hit [bit] in a fight and died..." Another account by descendant Everett Banks, now deceased, tells of Andrew's death. "Andrew and Reuben Edwards were in front of the Nu-Wray Inn in "downtown" Burnsville when a fight broke out between them, and Andrew put a sound whipping on Reuben, then turned and walked away. Recovering, Reuben pulled a knife from his pocket and stabbed Andrew in the back; he died the next day." The estate records: October 27 1857: "It appears to the court that Andrew Banks is dead with no will and testament. The widow refuses administration. Court appoints William B. Banks." October 30 1857: "Ordered that Dr. Washington be allowed $25.00 for making a post mortem examination on the body of Andrew Banks deceased." April 11 1874: "State of North Carolina, Yancey County. Know all men by these presents that we the undersigned heirs at law of Rachael Banks, deceased, are held & firmly bound to each other in the sum of one thousand dollars each to each other for which we bind our heirs, executors & administrators, dated this the 11th day of April 1874. The condition of the above obligation is such that, whereas we the undersigned heirs of Rachael Banks have this day referred all the real estate interest of Rachael Banks, deceased, to William Ray, Wesley Hurst, T.L. Ray, Curtis Ledford, & Charles Lisenbee, as referees to say what amount is due the estate of Rachael Banks, deceased, from W.B. [Wesley Britain] Banks, S.B. Banks, Jonathan Banks, to whom she has heretofore deeded her real estate, also letting said referees take into consideration all dues due said estate from the parties who purchased said lands from Rachael Banks; also to take into consideration all accounts due said parties from Rachael Banks except the notes. Now if all shall stand to and abide by the decision of the above named referees then this obligation to be void; otherwise to remain in full force and effect of law; also if either of us shall refuse to obey said referees, then we bind ourselves, our heirs & executors to forfeit our whole interest in said estate, either real or personal. Given under our hands and seals this the 11th day of April 1874. {Signed} Sarah (her mark 'x') Blankenship, W.B. Banks, S.B. (his mark 'x') Banks, Caroline (her mark 'x') Banks Jane Austin." "We the undersigned referees to whom the real estate interest and accounts of each party was agreed to. We met pursuant to the request of W.B. Banks, S.B. Banks, Jonathan Banks, Sarah Blankenship, Caroline Austin, Samuel Austin, and after examining the case and evidence and papers we find and agree that W.B. Banks pay to the estate of Rachael Banks $158, one hundred and fifty-eight dollars and keep the land Rachael Banks deeded to him. Also, we find and agree that Jonathan Banks pay to the estate of Rachael Banks $62.54, sixty-two dollars and fifty-four cents, and keep the land Rachael Banks deeded to him. Also, we find and agree that the estate of Rachael Banks pay to S.B. Banks $73, seventy three dollars and he keep the land Rachael Banks deeded to him, and that the above named W.B. Banks, S.B. Banks & Jonathan Banks shall share equal therein the sales and distribution of the estate of Rachael Banks. Respectfully Submitted, {Signed} Wm. Ray, T. Ray, J.N. Hurst, Curtis (his mark 'x') Ledford, C. Lisenbee: April 28 1874: "$22.50 twelve months due after date we or either of us promise to pay J.K. Blankenship, administrator of Rachael Banks, deceased, twenty two dollars an fifty cents for value received. J.D. Gardner {Seal}, W.C. Tow {Seal}, W.E. Wilson {Seal}, W.B. Banks {Seal}" "$99.00, twelve months after date we or either of us promise to pay J.K. Blankenship administrator of Rachael Banks, deceased, ninety nine dollars for value received. R.B. (his mark 'x') Austin {Seal}, C.F. Young {Seal}, N.M. Wilson {Seal}" Spring Term, Yancey County Superior Court, 1875: "Wm. B. Banks, Samuel Austin and wife Caroline Austin; Presley [Preston] Blankenship and wife Sarah; Burton Austin and wife Narcissa; Silas Chandler and wife Jane; Wilson Rice and wife Rachel; Jonathan Banks, Jasper Reed and wife Hester; [blank] Edwards and wife Rachel; E. Robinson & wife Hannah Harriet; Joseph Allen and wife Lavada; Lyfe [Lyphus] Robinson and wife Hattie; William Wilson and wife Sarah; Decatur Gardner and wife Samantha; Andrew Banks; [blank] Banks; Jane Banks, Wesley Banks, Caroline Banks, Rachel Banks, Rosanna Banks, the last seven named infants under twenty one years of age, who sue by their next friend, Wm. B. Banks, Plaintiff. Vs. Jonathan Banks, Samuel Banks and Wesley B. Banks, Defendants. "The plaintiffs above named complaining of the defendant, allege: I. That they and the defendants above named, are the children and heirs at law of Andrew Banks, who died intestate in the County aforesaid sometime in the year 1857. And that they are also the children and heirs at law of Rachael Banks, the wife of the said Andrew Banks, but who survived him many years, having died in the County of Yancey, intestate sometime during the year 1857. II. The plaintiffs further show that Andrew Banks was a very active, industrious and money making man, and at the times hereinafter mentioned had accumulated a very considerable estate of real and personal property, and so continued to accumulate till the time of his death as hereinbefore set forth, but Andrew was also very disaffected in his habits, of violent temperament and liable to become involved in violations of the laws, and when under the influence of liquors easily made the __?__ of shrewd and designing men, who taking advantage of his weaknesses would often deprive him of his property for inadequate consideration and frequently without any consideration whatever. III. That in order to avoid these losses and to secure to his family (consisting then of his wife, the said Rachael, and several children, by some sort of an arrangement and unknown to plaintiffs) made by the friends of the family for the joint use and benefit of Andrew and his family, all the estate then acquired by Andrew, was conveyed to and settled upon Rachael upon the express trust. Nevertheless that it was to be held for the use and benefit of him, the said Andrew, and her, the said Rachael for their heirs... of them and there for the use and benefit of their children and heirs at law. And it was further agreed and understood by and between Andrew and his wife Rachael, and the children of them, that all the property thereafter acquired would in like manner be claimed, owned and held under the same arrangement. IV. That in pursuance of this arrangement thereafter Andrew Banks purchased and paid for these several tracts of land situated in the County aforesaid on the waters of Banks Creek: One tract from Amos Ray containing about one hundred acres; one tract from McClure, adjoining the above named, containing about one hundred acres; and the lands on said Creek where Andrew lived and died, known as the "Home Lands", containing [blank] acres, and had the deeds and conveyances therefore made to his wife Rachael. The plaintiffs aver and charge that all three lands were paid for and purchased by Andrew from the proceeds of his own labors and effects, and that they were conveyed to Rachael for the purposes and with the understanding hereinbefore set forth. V. That after the death of Andrew, Rachael continued to live upon the lands... as contemplated by the arrangement herein before referred to until about the years 1868 and 1870, when she, having grown very old, her mental powers were much infected by age, the Defendants, all knowing of the trust herein before alleged to have been created upon said lands, and with knowing the feeble mental and physical condition of Rachael, and taking advantage of her condition by false and fraudulent representation, improper influences and practices, improperly, unlawfully and wickedly, combined and collaborated together to deprive the plaintiffs of their interest and rights in the lands, and by much unlawful combination and confederation, by means of the false, fraudulent and improper practices, and influences, did procure Rachael to convey to them the lands in fee-simple, they pretending to agree to pay her a certain sum per annum for the remainder of her natural life, but these plaintiffs aver and charge that the conveyances were made without any consideration whatever; or if there was a consideration it... has never been paid. And the plaintiffs further charge that they are informed and believe that the conveyance was made to the defendants, expressly upon the condition that they were to pay or cause to be paid to Rachael Banks a certain sum per annum for and during her natural life, and in the event of the failure of the defendants to make payments or any one of them, the conveyances were to be void. Plaintiffs further aver and charge that the defendants have not paid the rents to Rachael... and that said conveyances are void for that reason. VI. The Plaintiffs further allege that within the last two years Rachael Banks has died intestate, and the defendants have gone into possession of said lands, and refuse to allow the plaintiffs to enter thereon or enjoy any of the rights, uses or benefits thereof. Whereof: "1. That the defendants be declared trustees of the lands so conveyed to them for the joint use & benefit of the plaintiffs as the children and heirs at law of Andrew and Rachael Banks. 2. That the plaintiffs be declared tenants in common with the defendants of the lands... according to their respective rights and interests therein. 3. That the deeds of Conveyance from Rachael Banks to the defendants be declared void and declared to be rendered for cancellation. 4. That the defendants account to the plaintiffs for the use, occupation and rents of the lands for the time they have been in the possession thereof. 5. For such other and further relief as the nature and circumstances of this case may require. Spring Term, 1875. McElroy & Davidson, Attorneys for Plaintiff." The answer of defendants: "Superior Court - Yancey County. Wm. B. Banks & Others vs. Jonathan Banks & Others} The defendants answering the complaint, say: 1. That the allegations in the first paragraph of the complaint are true. 2. That the allegations in the second paragraph of the complaint are not true. 3. That each and all of the allegations in paragraph three of the complaint are not true. 4. That the allegations in paragraph four of the complaint are not true, - the allegations especially that the lands described in said paragraph were paid for by Andrew Banks and conveyed to Rachael Banks upon the trusts therein stated, or upon any other trusts whatsoever, are false. 5. That each and every allegation in paragraph five of the complaint is absolutely and unqualifiedly false. Answering the said allegations in detail, they say, that the said Rachael Banks, at the times therein referred to, was not of feeble mental and physical condition -- that these defendants did not by fraudulent or false representations nor by any other improper influences induce the said Rachael to convey the lands to these or either of them -- that they did not know that Rachael held said lands upon the parol(?) trusts stated in said paragraph, or upon any other trusts whatsoever: On the contrary if any such trusts existed or any such arrangement as that mentioned in the complaint was ever made, these defendants were wholly ignorant thereof, and took said land without notice of the same, and for valuable considerations, that they deny all fraud or imposition upon Rachael, and they deny also that they took deeds upon conditions not fully complied with on their part in every particular: And they expressly aver that Rachael, at the time of executing the several deeds to them referred to in the complaint was, and continued to be until her death, of sound and discreet mind, entirely competent to transact business, and the sale of her lands to these defendants was upon fair valuable consideration, and greatly increased to her comfort and pecuniary benefit. 6. As to the allegations in the sixth paragraph... these defendants admit that they are in possession of the lands described... and refuse to allow the plaintiffs to enter thereon or to participate in any way in the use, profits, or benefits of the same; but they deny that they or either of them went into the possession since the death of Rachael. On the contrary, they have been in the continued possession... from the time the same were conveyed to them by Rachael to the present time. "II. For a second defence, they say: 1. That previous to the bringing of this action, to wit, on the 11th day of April 1874, disputes and differences were subsisting between the plaintiffs and defendants S.B. Banks and Jonathan Banks, touching the title to the lands involved in this suit, and for the purpose of putting an end to disputes and differences, they then and there, by an agreement in writing, submitted themselves to the award, arbitrament, and final determination of William Ray, Wesley Hurst, T.L. Ray, Curtis Ledford, and Charles Lisenbee, to arbitrate and determine concerning disputes and differences, and naturally bound each other in the sum of one thousand dollars to abide by and perform their award; a copy of which agreement is hereto attached, marked "A" as a part of this answer. 2. That thereafter, to wit, on the 11th day of April 1874, the arbitrators, having undertaken the arbitration, duly made and published their award in writing, of which a copy appears on the back of Exhibit "A" above referred to, and is hereby made a part of this answer. 3. That the defendants duly performed all the conditions of said award on their part. 4. That by reason of said reference and award, the plaintiffs ought not to be admitted to say that they have any interest in the lands described in the complaint. "III. The defendants further answer the complaint severally say, as follows: 1. That he adopts the joint answer of the defendant hereinbefore set forth. 2. That on the 11th day of April 1868 Rachael Banks being seized in fee simple of the lands described in the complaint, conveyed for valuable consideration, one hundred dollars money thereof to him in fee simple, by deed of said date, duly registered on Book Six, pages 375 & 376 for Yancey County and on the 10th day of October 1854, Rachael & her husband Andrew Banks, for valuable consideration, conveyed to him in fee forty acres of lands more fully described in the deed of the same date. Copies of said deeds are attached as part of this answer & the defendants will produce the originals on being required to do so. 3. That defendant is seized in fee of said 160 acres of land & was so seized at the time of the fixing of this action. "Jonathan Banks says: 1. That he adopts as a part of his separate answer the joint answer of the defendants, hereinbefore set forth. 2. The he is seized in fee of about one hundred acres of the land described in the complaint, more particularly described in his deed from Rachael Banks dated April 10th 1868, & registered in Book 6 at page 121 of the Records of the Register of Deeds Office of Yancey County, which deed the defendant shows here to the court as a part of his answer. "Wesley B. Banks says: 1. That he adopts as part of his separate answer the join answer of the defendants hereinbefore set forth. 2. That he is seized in fee about 82 acres of said land described in the complaint, more fully specified in his deed from Rachael Banks dated 25th October 1871, & registered in Book 6, pages 335 & 336 of the records of the Register of Deeds... which deed this defendant is ready to produce in Court when so required to do." July 13 1875, or after, document is undated: "In Probate Court} The Heirs at Law of Rachael Banks, deceased, Plaintiff, against J.K. Blankenship, Administrator of Rachael Banks, deceased, Defendant. Complaint} The plaintiff complaining of the defendant alleges: I. That Rachael Banks died intestate being seized and possessed of a large estate in personal property and solvent credits. II. That shortly after the death of said intestate, to wit: on the [blank] day of [blank] 187_, the defendant filed his administration bond in the sum of One Thousand Dollars with C.F. Young, N.M. Wilson and T. Ray as sureties thereon in the office of the Clerk of the Superior Court for the County of Yancey and... letters of administration on the personal estate and papers of credit theretofore belonging to the said intestate. III. That defendant took into possession as administrator solvent judgments in favor of the intestate amounting in the aggregate to the sum of one hundred and ninety five dollars and twenty four cents - as will more fully appear by reference to a copy of defendants inventory marked Exhibit "A" hereto affixed and asked to be introduced as a fact of the complaint. That defendant has never paid plaintiffs any part thereof and is liable to them for interest thereon from the 13th of July 1875 till paid. IV. That on the 28th day of April 1874 defendant sold at auction all the personal property of his intestate for which he obtained the sum of four hundred and seventy eight dollars and forty five cents as will more fully appear by reference to an additional copy of defendant invoices marked Exhibit "A - Property" and asked to be introduced as part of this complaint. That defendant has not paid plaintiffs any part thereof and is liable to them for interest on the same from the 28 day of April 1874 till paid. V. That said Blankenship also took into his possession as administrator the sum of two hundred and ninety one dollars and thirty one cents in accounts, bills, bonds, notes and other written evidences of debt of the property of his intestate as by reference to a further copy of his invoices marked Exhibit "B" and asked to be introduced as a part of this complaint will more fully appear. That defendant has never paid plaintiffs any part thereof and is liable to them with interest on the same from the date at which these several written evidences of debt became due until paid over to these plaintiffs. VI. That defendants bonds were, to wit: C.F. Young, N.M. Wilson and T. Ray are equally liable with the defendant to these plaintiffs to the extent of one thousand dollars. VII. That defendant is liable to plaintiffs for the full amount of his inventory, for that he has been guilty of late__ in the administration of his intestate, and for the further cause that defendant has by means of fraud and circumvention, converted the major part of his intestate's estate to his own use. Therefore plaintiffs demand (1) Judgment against the defendant and his bondsmen for the sum of One Thousand Dollars. (2) Against the defendant for any other further sums that may be found to be due plaintiffs, and for a decree declaring the defendant a trustee to the use of the plaintiffs and subjecting his entire effects to sale to satisfy the same. (3) Costs of this action." Selected items from the attachment labeled "Exhibit A" (amounts shown are totals for principal and interest): Judgments: July 10 1875, Samuel B. Banks, $96.25 and $57.12; Jonathan Banks, $78.17; Wesley B. Banks, $12.50. Property Sales, April 28 1874, with purchaser and dollar amounts paid: Wesley B. Banks - mattock $1.25, dish 0.39, 3 hogs 14.19, Bible 1.32, 3 books 1.88, fire shovel 1.58. W.B. Banks - jug of honey $3.30, churn 1.00, 2 jugs 1.11, 1 pair cards 0.99, 1 yearling 16.63, hymn book 0.13. Samuel B. Banks - scythe $0.20, axe 0.60, log chain 2.64, kettle 1.32, calfskin 0.26, 2 pitchers 0.99, bucket 0.73, clock 19.80, dishes 1.03, desk 20.82, 2 bushels irish potatoes 1.18, 2 chairs 0.73, wheel 3.96, loom 9.24, pair fire dogs 3.03, 2 pot racks 2.67, saddle & harness 0.36, 9 chickens 1.32, 2 tubs 1.32. W.E. Banks - 2 history books $2.24. Narcissus Banks & husband Robert Burton Austin - hay fork $1.12, jar 0.20, plates 0.50, horse 132.00, cupboard 18.48, 1 bed & bed clothing 11.22, 3 bed coverlids(?) 19.15, table cloth 5.01, thread 1.51, shirt 0.72, 3 sleighs, harness 0.66. Jonathan Banks - barrel $0.79, soap 0.60, kettle 2.37, 2 chairs 0.79, 65-1.4 pounds bacon 18.08, bushel sweet potatoes 1.32. Sarah Banks Blankenship - 2 kettles $2.97, jar 0.26, 1 pair cards 0.33, cow & calf 23.76, bed & bed clothing 12.54, harnesses 1.32, side saddle & reins 3.36, "old clothes" 0.99, sleigh 0.20. Caroline Banks & husband Samuel Austin - dish $0.74, cow & calf 31.68, 2 bushels sweet potatoes 1.18, bed & bed clothing 13.86, bed coverlid 6.73, 4 chairs 2.64, lace 1.52, quilt 0.89. Other items purchased from the inventory include, tubs, baskets, garden vegetables, plows, pots, skillets, coffee pots, 2 cows, 2 calves, 2 beds and linens, 4 chairs, table, shirts, chest, scissors, knife box, quilt, umbrella, one "note on Sam & Jim Austin & W.E. Piercy" $41.25. Total of all inventory sales, $673.69 principal, $200.44 interest, $874.13 total. Items from "Exhibit B", notes due to the estate, include: Ezekiel Banks, due 12/31/1859, $17.98 E.M. Shepherd, 7 notes due between 12/31/1859 and 11/24/1862, $177.10 Jonathan B. Banks, 2 notes due 1/11/1859 & 1/7/1861, $50.53 David B. Banks, 3 notes due between 10/16/1858 and 7/22/1861, $104.60 W.E. Piercy, due 9/1859, $99.00 J.W. & Samuel Austin, due 6/2/1860, $21.50 Sam Banks, 3 notes due between 2/11/1857 and 4/7/1863, $77.53. Judgments due, with interest $244.54. Total of inventory sales, notes and judgments, $1,504.03 April 1879: "Yancey County. The Heirs at Law of Rachael Banks vs J.K. Blankenship, Administrator of Rachael Banks, deceased} The defendants demur to the complaint of the plaintiffs herein and... says: I. For first cause of administrator, defendants allege that this court has no jurisdiction of plaintiffs complaint for the reasons that plaintiffs sue upon the Administrators Bond in this case of which another court has jurisdiction. II. The complaint fails to allege that Rachael Banks, died in this county, so as to show jurisdiction in this court... Defendant says that the complaint does not state facts sufficient to constitute a sense of action in this. That there is no __?__ as to who the plaintiffs are in this case or that they are the sole and only heirs at law of Rachael Banks. {Signed} J.M. Gudger, Attorney" Another undated document seeks to answer the complaint filed by Mr. Gudger on behalf of Mr. Blankenship: "North Carolina, Yancey County} In Probate Court. W.B. Banks, Samuel Banks & wife Caroline, Burt Austin & wife Narcissa, Joe Allen & wife Lavada } Wm. Wilson & wife Sarah } Heirs at Law of Decatur Gardner & wife Samantha } David Banks, Deceased Catherine Banks } W.M. Banks, Lyphus Robinson & wife Harriet } Margaret Banks } Heirs at Law Rachael Banks } of Ezekiel Jno. Maney & wife Cornelia } Banks, Run Banks } Deceased Wm. Edwards & wife Rachael } Heirs at Law of James Banks } Marion Banks, deceased, Plaintiffs Against J.K. Blankenship, Administrator, Defendant [Editor's note: William C. Tow was not named as an heir of David Banks. Based upon the 1850 census records of Yancey County, one could reach the conclusion that William was a child of David Banks and Rachael Arrowood. That is not the case. William was a step-son of David, from Rachael's prior marriage to William C. Tow, Sr.] "The plaintiffs complaining of the defendant alleges: I. That plaintiffs and each of them are heirs at law of Rachael Banks, deceased. II. That said Rachael Banks, deceased, died during the year 187_ and so doing left a considerable amount of personal estate. III. That on the ___ day of ___ 187_, J.K. Blankenship filed a bond and sued out Letters of Administration upon the personal estate of said Rachael. IV. That it has been more than two years since said Blankenship administered on said estate and that he has made no settlement of said administration. V. That Rose Banks is a minor and has a good cause of action against said Blankenship. Therefore, plaintiffs pray that a guardian ad litem be appointed for Rose Banks and that she be allowed to appear in court by her guardian. {Signed} Wiley W. Wilson, Attorney for Plaintiffs" August 4 1879: "State of North Carolina, Yancey County} In the Probate Court. To J.K. Blankenship, Administrator of Rachael Banks, deceased, Greeting: Whereas, it is enacted that "an Executor, or Administrator, may be required to file his final account for settlement in the Court of Probate by a citation directed to him, at any time after two years from his qualification, at the instance of any person interested in the estate;" And Whereas, you have failed to file your final account for settlement within the time aforesaid: Now, Therefore, at the instance of Joseph Allen & wife Lavada Allen, persons interested as distributees in said estate, you are hereby cited to file your final account for settlement, in the Court of Probate for Yancey County, at office in Burnsville, within twenty days from the service of this citation. This you shall in no wise omit under the penalty enjoined by law. This 4 day of August A.D. 1879. {Signed} S.B. Briggs, Probate Judge" Endorsed, "Executed by T.B. Ray, Aug the 5 1879" August 25 1879: "Yancey County} In Probate Court. Heirs at Law of Rachael Banks, deceased, against J.K. Blankenship... Notice for final settlement on summons executed and returned. On motion it is ordered that W.E. Wilson be appointed guardian ad litem for Rose Banks, minor heir of Ezekiel Banks. On motion of the defendants counsel this case is continued by consent until 29 August 1879.... This cause continued for defendant to September 29 1879... Cause continued by consent to Saturday, October 4 1879" October 4 1879: "Demur by Defendant. On motion... it is considered by the court that this court has no jurisdiction against the sureties of the Administration, therefore the demur is sustained" February 23 1882: "State of North Carolina, County of Madison. In the Superior Court: [Same plaintiffs and defendants as above] } Wilson Rice one of the plaintiffs above named being duly sworn says: The above entitled suit was brought in the Superior Court of Yancey County as appears of Record at Spring Term 1875. That he is informed and believes that the plaintiffs therein took a nonsuit. Their case at Spring Term 1880 and judgment was entered against them for the costs. That this affiant is and was at the time said suit... if in Yancey County a citizen or resident of Madison County, that neither he nor his wife, who is an heir at law of Andrew Banks and made party plaintiff of this action was consulted about said suit or the bringing of the case, and was never notified that said suit had been brought or was pending until after the nonsuit aforesaid, and an execution was in the hands of the officer for collection of the costs herein; that neither affiant nor his wife authorized said suit to be brought, and that affiant had often said before he knew of said suit, that he could not ever institute nor be instrumental in initiating such a suit. That he is about to bring a suit in the Superior Court of Yancey County to set aside such judgment. That an execution has been issued by the Clerk of the Superior Court of Yancey County, to the Sheriff of Madison County, in favor of the officer of the court against this affiant County doesn't meet until the 2nd Monday in April next. Therefore this affiant prays for an injunction restraining the sale under said Execution, and that sureties issue to the parties and appear at the next term of the Superior Court for Yancey County & show cause if any they have, said judgment should not be set aside and declared void as to this affiant. {Signed} Wilson Rice." Endorsed, "Upon the motion affiant William Rice the execution for cost in this action be stayed upon..." April 13 1882: Further endorsement to the above: "On motion of plaintiffs counsel, it is ordered that execution be stayed under former order until further order of the court." October 9 1882: "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. At a general term of the Superior Court for the county of Yancey, held at the court house in Burnsville on the 9th day of October 1882, Honorable A.C. Avery, Presiding: Upon the hearing of the affiants filed in the above entitled action, and upon motion, it is ordered, adjudged heretofore __?__ in said cause, to wit, at Spring Term 1880, be amended by striking therefrom the names of Wilson Rice and Rachel Rice his wife, John Banks, Andrew Banks and __?__ Ray, and it is further ordered that the execution heretofore issued against said [plaintiffs] the above judgment be revoked and annulled without further action thereon. {Signed} A.C. Avery, Judge Presiding" October 12 1882: "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks, Samuel B. Banks and Wesley Banks. Affidavit of Rachel Rice: Rachel Rice, one of the parties plaintiff in the above action and wife of Wilson Rice, one of the plaintiffs, being duly sworn says: That at the time of the commencement of this action and continuously until the present time she has been a resident of Madison County. That said action was commenced without her knowledge or consent. That affiant had no knowledge of the existence or pendency of this suit until after judgment had been entered and execution issued and placed in the hands of the Sheriff of Madison County. Affiant further says: That about five years ago, and while her husband Wilson Rice was absent from home and attending the Baptist Association at Big Laurel, that W.B. Banks called at her house in Madison County on Sunday evening and told affiant that he had come to see affiant and her husband in regard to bringing a suit for the recovery of money or lands due them from the estate of Andrew Banks, deceased. That Mr. Davidson, an attorney at law, had told him that if the heirs would all come to Burnsville and contend for their rights, that they could recover something. And affiant then told him, W.B. Banks, that she would consult her husband Wilson Rice on his return home from the Association and that if they should determine to take any part in the litigation that affiant and her husband would meet him on Tuesday morning following at Leander Chandlers and inform him that they had so determined, and that if they did not come he might know that they would have nothing to do with the suit. "Affiant further says: That on the return of her husband she informed him of the above conversation with W.B. Banks and that her husband said he would have nothing to do with the suit and that what he had, he had worked for and would not be involved in a law suit. And that they never went to meet W.B. Banks at Chandlers' or elsewhere. That the above visit of W.B. Banks was the only time that he has been at the house of affiant within fifteen years. Affiant says that she is certain that at the time of the visit of W.B. Banks, he did not see and had no conversation with her and that that has been his only visit... Affiant further says: That she has never within the last seven years had any knowledge of any conversation between her husband and W.B. Banks until after the execution was issued, and that she has had no conversation with him since the one above mentioned. Sworn to and subscribed before me this 12th day of October, S.B. Briggs, Clerk. {Signed} Rachel (her mark 'x') Rice" "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. Affidavit of Andrew Banks: Andrew Banks being duly sworn says: That at the time of the commencement of this suit he was about twenty years of age. That he was made a party plaintiff without his knowledge or consent. That about five years ago, W.B. Banks came to his house in Madison County [on Windy Hill Road] and said to affiant that he was going around in order to see the heirs and parties interested to endeavor to obtain their consent and get them to contribute something to aid him in the prosecution of the suit, but they (the heirs) had refused to give consents to be made parties and also refused to pay anything to meet the expenses of the suit. Affiant especially remembers that the name of Wilson Rice and wife Rachel were mentioned specially as being able to do something to aid in the prosecution of the suit, and that they would neither consent to be made parties to the suit nor to contribute or pay anything to aid in its prosecution. W.B. Banks further said that "if the heirs did not give their consent soon" he would "compromise the whole matter" so the defendants had offered him already enough to justify him in so doing. {Signed} Andrew Banks}. Sworn to and subscribed... this the 12th day of October 1882." "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. Affidavit of Jasper Reed: Jasper Reed, one of the parties plaintiff in the above entitled action after being duly sworn says: That this suit was brought without his knowledge or consent. That he had no knowledge that his name appeared or was used in any way in the suit until after judgment had been rendered and execution assigned against him and was in the hands of the Sheriff of Madison County. Affiant says that about five years ago in August 1877, W.B. Banks came to the house of affiant in the County of Madison and told him that he was going around to see the heirs at law of Andrew Banks, deceased, to endeavor to get their consent to be made parties to a suit and also to contribute money to aid in the prosecution of the suit that affiant positively refused to give his consent to the bringing of suit in his name or that of his wifes or to contribute anything for the purposes that W.B. Banks did not inform him at that or any other time that suit had been commenced in Yancey County and that affiant had been made a party thereto. W.B. Banks complained to affiant that the heirs would neither consent to be made parties nor aid him in the prosecution of a suit. That Rachel Rice or Wilson would neither consent to be made parties, nor pay any amount to aid him, and said that he had "just been to see Rachel about it," that none would aid him but Silas Chandler, that he was the only one of the heirs who would either consent to be made parties or aid him in anywise in the prosecution of a suit. Affiant distinctly and positively stated to W.B. Banks that he, affiant, nor his wife would not have anything to do in the matter, that they would not involve themselves in litigation or assume any liabilities in the matter. {Signed} J.J. Reed. Sworn to and Subscribed... this the 12th of October 1882." "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. Affidavit of John Banks: John Banks being duly sworn says: That he is marked as a party plaintiff to the above action. That he never had any knowledge of the commencement or pendency of the above action until he was served with the execution by the Sheriff of Madison County. That he never in any way gave his consent or allowed himself to be made a party to the above action. The he never had any conversation with the above named W.B. Banks in regard to said action. That his home has been in Madison County for twenty five years. {Signed} John (his mark 'x') Banks. Sworn to and Subscribed... this 12th day of October 1882." "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. Affidavit of James Ballard: James Ballard being duly sworn says: That he is a citizen of Madison County and lives about two miles from Wilson Rice and has been living there for about fifteen years. That he is acquainted with W.B. Banks. That about the month of August 1877 he saw W.B. Banks near his house. Banks told him that he was going to Wilson Rice and his wife to obtain their consent to commence and prosecute a suit for the heirs at law of Andrew Banks, deceased, of Yancey County. That Banks told him that he thought if he could get the aid of Rice and wife, that he would succeed in the action. That about one year afterwards while at the house of Banks, affiant had a conversation with Banks in which conversation Banks said to him that he (Banks) was doubtful of the result of said suit. That the heirs would not consent or aid in the prosecution of suit. That Rachel & Wilson Rice had positively refused to give them consent to the prosecution of suit or to furnish any means or money to carry on the same, in consequence of which refusal he was fearful that he would not be able to prosecute the suit successfully. {Signed} James Ballard." "Fall Term, Superior Court, Yancey County} Wm. B. Banks, et al vs. Jonathan Banks et al. Affidavit of Wilson Rice: Wilson Rice after being duly sworn says: The he had no knowledge of the commencement or pendency of the above entitled action. That he never at any time, neither before nor during the pendency of the action, had any conversation with W.B. Banks in relation thereto. That W.B. Banks never at anytime notified him that suit had been brought and that his name was in the suit as a party thereto. That affiant had no knowledge of its existence. That he never at any time encouraged W.B. Banks to go ahead with the suit or that he, affiant, would stand up for Rachel's' rights. {Signed} Wilson Rice." April 22 1884: "J.K. Blankenship, Administrator of Rachael Banks vs. R.B. [Robert Burton] Austin and others} State of North Carolina, Yancey County. To any constable or other lawful officer of Yancey County we command you to summons R.B. Austin, N.M. Wilson, C.F. Young to appear before the undersigned, one of the Justices of the Peace for the county of Yancey on the 26 day of April 1884 at his office to answer J.K. Blankenship in a civil action for the recovery of $99.00 and have you then and there, the date and manner of its service. Hereof fail not. Witness our Justice this the 22nd day of April 1884. Joshua Horton, J.P., Prices Creek TS." Endorsed, "Executed April 26th 1884 by E.M. Blankenship... This cause come on for trial the 26 of April 1884, continued by consent of parties till the 24 of May 1884... This cause being called for trial continued by consent of parties till the 5 of July, this the 12 of June 1884." April 28 1884: "J.K. Blankenship, Administrator of Rachael Banks, deceased, Plaintiff, against J.D. Gardner, W.C. Tow, W.E. Wilson, W.B. Banks, Defendants} Before Joshua Horton, J.P., No. 10, April 26, 1884. The Plaintiff filed his complaint which was in substance as follows: The defendants is indebted to the Plaintiff in the sum of twenty two dollars & fifty cents due by note of hand given April 22 1884 issued summons by Joshua Horton & returnable on the 26th of April 1884 at 1 o'clock p.m. and delivered the same to E.M. Blankenship, Constable. Summons returned. April 26 1882 case came on for trial. The defendants did not appear in court. Judgment by default for the sum of twenty two dollars & fifty cents principal with interest from April the 28 1875 until paid and cost of this action. E.M. Blankenship, Constable cost $1.60. Joshua Horton, J.P. cost $1.30. Transcript fee 25 cents paid." Endorsed, "Yancey County Justices Court. Transcript. Joshua Horton the Justice before whom the judgment in the above entitled action was rendered, do hereby certify that the foregoing is a transcript of said judgment & of the whole thereof, as the same is entered by me in my docket in the proceeding action at the date therein stated. Given under my hand this July 16th 1887. {Signed} Joshua Horton, J.P." July 5 1884: "J.K. Blankenship, Administrator of Rachael Banks, deceased, Plaintiff, against R.B. [Robert Burton] Austin, C.F. Young, Defendants} Before Joshua Horton, J.P., July the 5th 1884. The Plaintiff filed his complaint which was in substance as follows: That the defendant is indebted to plaintiff in the sum of ninety nine dollars due by note of hand given the 28th of April 1874. Joshua Horton April 22 1884 issued summons returnable April 26 1884 at 2 o'clock p.m. & delivered the same to E.M. Blankenship, constable summons returned April 26 1884. Case came on for trial July the 5th 1884. The defendant R.B. Austin appeared in Court & confessed judgment for the sum of ninety nine dollars principal with interest from the 28th of April 1875 until paid & cost of this action. E.M. Blankenship, Constable cost 60 cents, Joshua Horton, J.P. cost 90 cents. Judgment, Joshua Horton. From the foregoing judgment the defendant R.B. Austin prayed an appeal to the next Superior Court of Law for Yancey County, which is allowed. Fees for the appeal settled in full. W.M. Moore, Attorney for appellant." Undated document, in columnar format, titled, "J.K. Blankenship, Adm'r of R. Banks, Deceased. Balance Sheet, Total Inventory $1,504.03" Amounts shown below represent, in order of presentation, (a) Share (b) Liability (c) Amount of Heirs Overpaid Due S.B. Banks - $150.40 $302.07 $151.67 S. Banks - 150.40 156.33 5.93 Narcissus Austin 150.40 159.64 9.24 W.B. Banks 150.40 22.77 128.23 Sarah Blankenship 150.40 47.81 102.59 Heirs of B. Banks 150.40 0 150.40 Heirs of Ezekiel Banks 150.40 24.04 126.36 Heirs of M. Banks 150.40 63.20 87.20 Heirs of David Banks 150.40 36.22 114.18 Caroline Austin 150.40 57.86 92.54