YANCEY COUNTY, NC - WILLS - Estate Records of William "Billy" Ray, 1808-1883
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Estate Records of William "Billy" Ray, Yancey County, 1808 - 1883. Transcribed
by Marshall L. Styles, marshallstyles@yahoo.com
The estate records of William "Billy" Ray (Sr.), Yancey County, NC, the
"richest man in the valley" of Cane River, which lasted from 1883 until 1910,
are transcribed below, in chronological order. The records often refer to
Billy has having died "intestate", or without a Will, which was not the case.
See the transcription of his will; also, the divorce proceedings of second
wife Elizabeth Matilda Allen Ray, which began in January of 1883. The estate
file is void of entries, other than Matilda's claims of 1883, until March
1888. See his Last Will and Testament for additional information.

In 1883, their marriage fell apart, and Matilda filed for alimony in the
Yancey County court.

Correspondent Lloyd Bailey provided some insight into the family affairs:
"After Billy Ray married Matilda Allen a couple of his sons, one of them was
John Henry for sure, and I'm not sure who the other one was, decided they had
better try to be rid of her, as she would control the estate after his death.
So, they apparently went out and dug up some kind of poisonous plant. I don't
know what it was, but most likely a wild parsnip, which is rather deadly. It
grows up around waist high. They brought it in and laid it in the kitchen. And
then one of the cooks or housekeepers was a black woman. Apparently a former
slave noticed this thing, and called to these same two guys attention, because
they were in the house. So these guys then blamed it on Matilda and said that
she was trying to poison Billy. And he bought the whole thing!  And so, if you
read his will, he has a codicil to his will saying that he is disinheriting
Matilda because of the attempt on his life. I don't know if Billy ever
discovered this ruse that had been pulled on him or not. That Matilda had, in
fact not tried to kill him. It was his own two sons trying to frame her to
make it appear that she had gathered the wild plant and was going to put it in
Billy's food, too. They, John Henry and the other one, were staying around to
make sure nobody ate it. But anyway, Billy was taken in by it, and I don't
know whether he found out about it later or not, because there was some kind
of blow up, and he and John Henry had a fist fight. John Henry said he and
Billy couldn't live in the same county together. He went to what's now
Oklahoma, it was called Choctaw Nation then, and died out there at a place
called Boggy Bottom.... If you turn up Prices Creek Road at the first fork of
Banks and Prices Creek, Billy lived in a huge two-story log house sitting
right where the so-called Phoenix House is, now the Wray Villa. Down the river
if you turn towards Ramseytown, less than a mile, is where Matilda Allen
lived. Billy made a few nocturnal visits, as I understand it, before they were
married."

Two months prior to Billy's death, Elizabeth Matilda Allen Ray, his 2nd wife,
commonly known as Matilda, filed a petition for alimony in preparation for
asking for a divorce from Billy. Their last months together had been stormy,
what with Billy cutting her out of his Last Will and Testament, following
supposedly unfounded allegations from certain of Billy's sons from his first
marriage that she had tried to poison him. After his death, when Matilda
petitioned for dower rights to the estate, and introduced their illegitimate
son, Lee Allen, into the proceedings, one of Billy's sons from his first
marriage countered her suit, claiming she had committed adultery during their
marriage, and had therefore forfeited her rights to any part of his estate. In
defense of Matilda, Billy was certainly no saint. At age 75, none of these
goings-on were of any benefit to Billy's health and well-being.

January 4 1883: "State of North Carolina, County of Yancey} In the Superior
Court. Elizabeth M. Ray, plaintiff vs. William Ray, defendant} Notice of
Application for Alimony:  The defendant above named will take notice that on
Wednesday the 17th day of January, A.D. 1883, the plaintiff will make a motion
before His Honor A.C. Avery, at chambers in the Town of Morganton, N.C., for
an order allowing alimony, pedente lite, in this action. {Signed} Elizabeth M.
Ray, Plaintiff, by her attorneys Davidson and Martin"

"Elizabeth M. Ray against William Ray} Summons... To the Sheriff of Yancey
County --- Greeting: You are hereby commanded to summon William Ray... if he
be found in your County, to be and appear before the Judge of our Superior
Court... to be held for the County of Yancey at the Court House in Burnsville
on the 2nd Monday after the 4th Monday in March next, and answer the complaint
which will be deposited in the office of the Clerk of the Superior Court of
said county within the first three days of the next term thereof, and let
defendant take notice that if he fail to answer said complaint within that
time, the Plaintiff will take judgment against him. Hereof fail not, and of
this summons make due return. Given under my hand and seal of said Court, this
the 4th day of January A.D. 1883. {Signed} S.B. Briggs, Clerk Superior Court"

Endorsed, "Executed by delivering copy to Defendant this 12th day of January
1883, N.W. Wilson, Sheriff of Yancey Co., N.C.

February 5 1883: Billy petitions the court to summons the following persons on
his behalf: "To the Sheriff of Yancey County --- Greeting: You are commanded
to summon Jeremiah M. Ferguson, William H. Gardner, J.G. Wilson, John Henry
Ray, Nathan Boone Ray to be and appear before the Probate Judge of the
Superior Court of Yancey County... on the 13th day of February 1883 next, to
give evidence in a Civil action then and there to be tried, wherein Elizabeth
M. Ray, plaintiff, and William Ray, defendant, on the part of the
Defendant..." Endorsed, Executed February the 8th 1888. My fees not paid, one
dollar, N.W. Wilson, Sheriff"

February 10 1883: Matilda petitions the court to summons the following persons
on her behalf: "To the Sheriff of Yancey County --- Greeting: You are
commanded to summon Wilson Hensley, Elbert S. [Sevier] Wilson, C.W. Edwards &
Robert McIntosh to be and appear before the Clerk of the Superior Court of
Yancey County... on the 13th day of February 1883 next, to give evidence in a
Civil action then and there to be tried... on the part of the Plaintiff..."
Endorsed, Executed February the 12th 1883, my fees not paid, one dollar and 2
cents, N.W. Wilson, Sheriff"

February 13 1883: "Elizabeth M. Ray vs. William Ray, Before Clerk at Office.
Affidavits}

"J.G. Wilson [for Billy] having been sworn says he is well acquainted with the
real estate of William Ray and it is worth from 5 to 6 thousand dollars; the
annual rents of lands and mill is worth annually clear of tax and all expenses
about at least $200.00." Question: "Are you acquainted with the lands that
William Ray and Lee [Lee Allen, illegitimate son of Matilda Allen and William
Ray, born while both were married to others] is in possession of?" Answer "I
am. It is worth $1,000.00; the annual rents is worth after paying tax and
repairs $35.00."

"Jeremiah M. Ferguson [for Billy] says he is well acquainted with the real
estate. It is worth from 5 to 6 thousand dollars. The rents of mills and land
annually $200.00. His personal property is worth $425.00. The lands that
William Ray and Lee is in possession of is worth $1000.00"

"Nathan Boone Ray [for Billy] being sworn says that he heard William Ray
acknowledge that all the lands that he and Lee, his son, owns was a gift,
except 125 dollars. Have had possession for several years."

"W.C. Tow [Dr. William Clausal Tow, my great grandfather, who had witnessed
Billy's Will.], being duly sworn says that he has tended the Mill of defendant
for 4 years and is acquainted with the lands of defendant, that the rents of
land and Mill above expenses, tax &c the way it is managed is not worth
anything. It would be worth under knowledgeable management $100.00. I know the
lands of Matilda and Lee. It is worth one thousand dollars. The annual rents
is worth $60.00. His personal property is not worth more than the ___ of
William Ray..."

"Wilson Hensley [for Matilda] being sworn says he is not acquainted with the
lands of William Ray or the rents of William Ray. It has been my understanding
that it was a gift; has been in possession on 17 years."

"Elbert S. Wilson [for Matilda] says he s not acquainted with the real or
personal ___ of William Ray. The lands of William Ray and Lee Allen is worth
$1000.00. The annual rents after paying tax and keeping in repair is worth
$100.00. I have always understood that it was given to Lee by William Ray"

March 1883: William "Billy" Ray dies.

April 1883: "Petition for Dower} Elizabeth M. Ray against: E.B. Ray, Hannah
Ray, Barnett Ray, John H. Ray, D.M. [David] Ray & wife Elizabeth Ray, William
Bryant & Thursa Bryant, Robert Anderson, William George & wife Margaret
George, Robert Jarvis & wife Brejetta Jarvis, William Wilson (minor), Monroe
Wilson (minor), Hiram Wilson (minor), Zeb Wilson (minor), Cora Ray (minor),
Hattie Ray (minor), John W. Edwards, Martha J. King & William J. King, Thomas
Edwards, James Edwards (minor), Lilly Ann Edwards (minor).

"Elizabeth M. Ray, widow of William Ray, deceased, hereby complaining to the
court showeth:

"I. That your petitioner was during the life time of William Ray, now
deceased, lawfully married to him. II. That William Ray died in Yancey County
in the state of N.C. on the [blank] day of March 1883, leaving your petitioner
his lawful widow. III. That William Ray died seized and possessed of the
following described lands, viz:

"1st Tract - Lying and being in the County of Yancey on Caney River & bounded
as follows: Beginning at a large white oak near the wagon road just below J.G.
Wilson's and in J.G. Wilson's line & runs a westwardly course with J.G.
Wilson's line to Hoake Buffett's line then with said Buffett's line to J.H.
Ray's line to Caney River then up the river with its meanders to the mouth of
Hinton's Creek on Ray's Creek then up said creek with its meanders to the
mouth of the Mill on Banks Creek, then up said creek with its meanders to
Young Allen's line then with Young Allen's line to J.G. Wilson's line to the
beginning containing two hundred acres, be the same more or less.

"2nd Tract - Beginning on a white oak Wilson Hensley's corner above J.H. Ray's
& runs with Hensley's line to the top of the Renfrow Knob then an east
direction to Cornelius McIntosh line then a south direction to the beginning
containing 100 acres, more or less.

"3rd Tract - Beginning on a water oak & white oak on the north bank of Cane
River & runs down the river to C.W. Edwards' locust corner then a westwardly
course with Edwards' line to Backus Ray's line then with said Ray's line to
C.R. McIntosh's line then with his line to a line of the second tract line to
J.H. Ray's Line then with J.H. Ray's line to the beginning containing [blank]
acres, more or less.

"IV. That William Ray died leaving him surviving Elizabeth M. Ray your
petitioner his widow and Edward Burton Ray, Barnett Ray, Hannah Ray, John H.
Ray, David M. Ray & wife Elizabeth, William Bryant & wife Thursa, William
George & wife Margaret, Robert Anderson, Robert Jarvis, Thursa, William George
& wife Margaret, Robert Anderson, Robert Jarvis & wife Brejetta, John W.
Edwards, William King & wife Martha, Thomas Edwards, James Edwards, Lilly Ann
Edwards, William Wilson, Monroe Wilson, Hiram Wilson, Zebulon Wilson, Cora Ray
and Hattie Ray, the last eight named are infants under the age of 21 years of
age whereupon your petitioner ask:

"1. For a decree appointing guardian ad litem for James Edwards, Lilly Ann
Edwards, William Wilson, Monroe Wilson, Hiram Wilson, Zebulon Wilson, Cora Ray
& Hattie Ray. 2. For summons to issue to said heirs at law of William Ray to
appear & show cause why the prayers of this petitioner shall not be granted.
3. For a decree that your petitioner is entitled to dower in said lands. 4.
For a jury to set apart and allot said dower by proper metes and bounds as the
law directs. And your petitioner as in duty bound will ever pray &c. {Signed}
Elizabeth "x" M. Ray.


"Elizabeth M. Allen Ray being duly sworn says she has heard read the foregoing
petition that the facts therein stated are true of her own knowledge.... Sworn
to and subscribed this [blank] day of April A.D. 1883"

The jury record which approved Matilda's dower is not found in the estate
file. Billy's son, Nate Boone Ray, answers Matilda's petition, referencing the
approval of dower:

"In Superior Court} In the matter of Elizabeth M. Ray, petition for allowance.
To Elizabeth M. Ray - Take notice. N.B. Ray, Executor and legatee under the
will of William Ray, appeals from the action of the court & jury in assigning
you the articles of personal property named in the list herewith appended, and
made part of this appeal, and assigns for such... the following objections to
the same:

"I. That the proceedings under which said jury acted is not lawful. No written
assent was made by the appellant as Executor to assign the same. II. That no
notice was given that said petition was filed with D.A. Angel, Justice of the
Peace. III. That D.A. Angel, J.P., has no jurisdiction to summons said jury
unless at the request of appellant as Executor. IV. That said Elizabeth M. Ray
signed & deeded away all in regard to her years allowance in a compromise of
her suit for divorce, a copy of which is prayed to be taken as part of this
appeal, and that if she is entitled, she has been paid a large amount as is
seen by above... V. The appellant further appeals and says that said Elizabeth
M. Ray committed adultery while she was the wife of William Ray, deceased, and
thereby forfeited all right to her years allowance.

"{Signed} N.B. Ray, Executor & legatee, N.M. Wilson."

There are no records in Billy's estate file for the years 1884 through 1887,
and Matilda is not mentioned in subsequent records. The estate proceedings
pick up in 1888:

March 29 1888: "Yancey County Probate Court before T.B. Ray [Thomas B. Ray,
according to court records of his election as clerk, December 6 1886] Clerk of
the Superior Court of said county, March the 29th 1888. Final account of N.B.
Ray, executor of William Ray, appointed by the paper writing purporting to be
the Last Will and Testament of William Ray. The executor charges himself as
such executor as per inventory filed June 27th 1883. All the [below] notes
were dated November 22nd 1883 and due six months from date and bears interest
from November 22nd 1883 and therefore changes with the interest on the notes
to this date [from inventory sales]:

"J.W. Wilson & T.B. Ray $5.19; T.W. Styles & S.B. [Samuel B.] Banks $14.45;
Nathan Ray, J. K. Blankenship, S.B. Briggs $9.98; J.K. Blankenship & N.M.
Wilson $5.70; J.M. [James Monroe] Styles, J.K. Blankenship, C. Lisenbee
$12.10; E.B. [Edward Burton] Ray, N.M. Wilson, W.M. Austin $10.30; N.M.
Wilson, J.K. Blankenship $38.65; W.C. [Dr. William Clausal] Tow & M.C. Byrd
$11.40; J.Y Horton & W.E. Piercy $15.50; S.B. Banks, J.K. Blankenship $17.45;
Ed Honeycutt, M.C. Byrd $7.00; T.B. Ray, J.G. Wilson $9.00; A.E. Piercy, W.E.
Piercy $6.84; T.J. Gardner, J.C. Roberson $10.70; J.W. Styles, S.B. Banks
$8.00. Total $182.26. Interest to date of settlement on this account $47.58.

"The following notes taken at sale of May 21st 1883: Allison Briggs, due Nov
21st 1883, $5.00; W.C. Tow $24.90; W.H. Gardner $23.00; Monroe Styles $33.50;
[and many more]. Principal and interest on cash and notes on hand at the death
of William Ray $551.75.... Total of notes, cash and interest to date
$1,791.13"

"N.B. Ray the Executor aforesaid of William Ray credits himself with the
following disbursements and notes and other evidences of debt that he files in
the office of the Superior Court Clerk for the administration to be hereafter
appointed:

"By amount paid widow for years support October 22nd 1883, $300.00; interest
on same to date, $79.87. Joshua Horton, Clerk at sales & qualifying sureties
November 22nd 1883, $5.00; interest to date $1.30. Receipt of W.M. Moore for
judgment April 18th 1884, $61.00; interest to date $14.43. Account of W.H.
Gardner May 21st 1883, $6.90; Interest $2.00. Receipt of C.R. McIntosh for
judgment May 15th 1883, $3.00; interest $0.78. Receipt of J.K. Blankenship,
Clerk at sales and attendance November 22nd 1883, $5.00; interest $1.30.
Receipt of N.M. Wilson January 9th 1884, $10.00; interest $2.56. Receipt of
Joshua Horton, cost May 15th 1883, $0.60; interest $0.16. Receipt of William
C. Tow November 22nd 1883, $4.00; interest $1.05. Receipt of Samuel B. Banks
May 20th 1884, $22.50; interest $5.18. Receipt of B.B. Whittington account
March 28th 1883, $10.00; interest $3.00. Receipt of Joshua Y. Horton, Clerk at
sales November 22nd 1883, $2.00; interest $0.51. Receipt of S.B. Briggs Clerk
October 1st 1883, $5.90; interest $1.89.

"Receipt of Thomas B. Ray for buying clothes May 25th 1883, $14.69; interest
$4.25. Receipt of Cordelia Wilson June 18th 1883, $2.00; interest $0.58.
Receipt of D.A. Angel, J.P. cost April 18th 1884, $1.20; interest $0.28.
Receipt of John H. Ray account April 18th 1884, $11.35; interest $3.35.
Receipt of J.M. Gudger, accept judgment April 18th 1884, $53.00; interest
$12.88. Receipt of W.M. Moore April 21st 1883, $50.00; interest $14.50.
Receipt of W.M. Moore September 1st 1885, $100.00; interest $15.50. Receipt of
N.M. Wilson, Sheriff, Taxes November 14th 1883, $29.67; interest $7.75.
Receipt of N.M. Wilson, Sheriff, Taxes July 16th 1885, $24.13; interest $4.11.
Receipt of N.M. Wilson, Sheriff, Taxes March 1st 1886, $30.55; interest $3.81.
Receipt of N.M. Wilson, Sheriff, Taxes August 1st 1887, $26.26; interest
$1.05. Receipt of Nate B. Ray, feeding stock and processing grain, $56.00;
interest $16.24. Attending Court, actual expenses $45.00. J.S. McElroy,
Attorney receipt, $25.00. Executors commissions on receipts 5% $60.14;
Executors commissions on disbursements $60.14; Total $1, 323.08"

"The said executor files with this account into the Clerk's office of all the
notes and accounts that come into his hands that are separated in this
inventory as Insolvent & Worthless and the following notes and evidences of
debt with which he charged himself as per inventory giving the credits on the
same secured by this execution:

"Notes on J.H. Barnard & A.G. Dillingham & interest to date $85.85; W.A.
McClelland & others $15.61; J.S. Boon $29.18; Miller T. Blankenship & J.W.
Hearst $43.91; J.G. Wilson $13.97; T.B. Ray & J.G. Wilson $8.33. Total
$196.85"

"The following notes given at the sale November 22nd 1883 and drawing interest
from that date: James M. Styles & J.K. Blankenship & C. Lisenbee $12.10; W.C.
Tow & M.C. Byrd $11.40; Edward B. Ray & N.M. Wilson & N.M. Anderson $11.23;
T.J. Gardner & J.C. Roberson $10.70; N.M. Wilson & J.K. Blankenship $38.65;
J.G. Wilson & T.B. Ray $5.19; J.M. Styles & S.B. Banks $8.00; Nathan Ray, J.K.
Blankenship & S.B. Banks $9.98; A.E. Piercy & W.E. Piercy $6.84; Joshua Y
Horton & W.E. Piercy $15.50; J.K. Blankenship & N.M. Wilson $5.70; T.B. Ray &
J.G. Wilson $9.00. Total $144.29. Interest on the above notes given at the
sale of November 22 1883. Note on James M. Styles & Samuel B. Banks $12.24"

"The following notes are such as was found by the executor in the effects of
William Ray [with interest]: J.G. Wilson $64.95; W.E. Piercy $20.80; T.B. Ray
$34.59; L.S. Phillips $17.65; J.G. Wilson $62.04. Total $590.89.
Recapitulation: Total amount of receipts and charges by inventory $1,791.13.
Total amount of disbursements & notes turned over $1,913.97. Balance due
executor $122.84"

"N.B. Ray executor of William Ray, Sr., deceased, being duly sworn says that
the foregoing account rendered is a just and true account of the charges and
disbursements of the estate of the said deceased, reserving to himself the
right to have corrected any mistakes in calculation or otherwise. {Signed}
N.B. Ray, Executor of William Ray. Sworn to and subscribed and filed before me
this March 30th 1888. {Signed} Thomas B. Ray, CSC"

September 29 1888: "North Carolina, Yancey County} In the Superior Court.
Special Proceedings} David M. Ray & wife, Burton Ray & others, Plaintiffs} vs.
Hattie Whittington wife of H.A. Whittington & others, Defendants} [Burton Ray
was an epileptic] The plaintiffs complaining of defendants allege:

"I. That William Ray died intestate [wrong] in the count of Yancey about
[blank] day of [blank] 1883, leaving him surviving the following heirs at law,
to wit: Burton Ray, Hannah Ray wife of Barnett Ray, Elizabeth Ray wife of
David M. Ray; Robert Anderson, Brejetta Jane wife of Robert Jarvis, Margaret
George wife of William George, the last three sued their interest and conveyed
the same by deed to Mr. C.R. Byrd, and been sold & conveyed by deed the same
to G.D. Ray who now owns it; Thursa Bryant wife of William Bryant, J.W.
Edwards, Thomas Edwards, James Edwards, Martha King wife of William J. King,
L.A. Ray wife of J.M. Ray, William Wilson, Hiram Wilson, Zeb Wilson and Monroe
Wilson, Hattie Whittington wife of H.A. Whittington, Cora Ray, Robert Ray,
Jennie Peterson wife of Palmer Peterson, Lula J. Horne, McElroy Ray, Lorana
Ray, Priscilla Ray, Ida Ray & Isaac Ray. The aforementioned heirs are minors:
William Wilson, Hiram Wilson, Zeb Wilson, Monroe Wilson & N.M. Wilson their
regular guardian; Cora Ray & Hester Ray her guardian; and McElroy Ray, Lorana
Ray, Priscilla Ray, Ida Ray & Isaac Ray are without guardian.

"II. That the real estate of William Ray descended to the aforesaid heirs at
law, & the land situated, lying & being in Yancey County, described as follows
[note that the descriptions and courses were those of William Ray, himself]:

"1st Tract - Beginning on a white haw tree on the west bank of Hinton's Creek
opposite some large rocks on the east side of the creek & runs with a
conditional line this way marked by myself, a west course to a small wild plum
bush in the fence row then same course with fence to a bunch of hazelnut
bushes & a rock set up, then SW course through the corner of a field with a
white oak in the edge of the woods on a hill side, then same course only a
little south up the ridge to a small white oak & pointers, then a west course
up the ridge to a small chestnut & pointers, then same course, but turns to
the west side of the ridge crossing the head of a hollow to a black oak &
pointers on a ridge then a NW course up the ridge to a small oak sapling, gum
& maple pointers, then a W. course on top of the ridge to the line of tract
No. 3 (in this Will) to a chestnut oak corner of J.H. Ray tract deeded to him
by William Ray then W with line to David Proffitt old line, then with the line
of J.G. Wilson's line to the white oak at the road, then with said Wilson's
line a SE course to Young Allen's line, then with Young Allen's line to the
Mill Creek then down said creek to Hinton's Creek, then across Hinton's Creek
with white haw tree the beginning, containing 100 acres more or less,
including my dwelling house & out houses."

"2nd Tract - Adjoining lands of J.H. Ray & others, Beginning on a Black Walnut
on the west side of Hinton's Creek, & on north side of the old hedge or fence
row, that divides the big meadow & the long bottom field, about one hundred
and fifty yards from the mouth of Hinton's Creek & runs a SW course with the
fence or hedge row to a large white oak, at the edge of the woods then same
course or direction to a small poplar up on the hill side, then same course
only a little further South to a white oak & pointers on top of the ridge,
then a west course on top of the ridge to an oak sapling & gum & maple
pointers, then a west course on top of the same ridge & down a swag & up the
ridge to a chestnut oak John H. Ray corner of the deed made to him by William
Ray Sr., then a north course & with J.H. Ray line made by William Ray, Sr. to
the [Cane] River, then up the river to the mouth of Hinton's Creek, then up
Hinton's Creek to the beginning, 75 acres more or less by estimation."

"3rd Tract - Beginning on top of a ridge on a white oak J.H. Ray corner & runs
with said line to the River, then down the River to the corner between Major
John Edwards & William Ray, Sr., corners on a locust, then a west course to
the line of E.B. Ray, then with said line to a white oak on a ridge between
said Ray & Amanda Roland, & runs with said Rays line a south course to the
Greenlee line, then with said line & the R.B. Johnston line to J.H. Rays line
to the beginning."

"Another tract of land of 25 acres deeded to William Ray Sr. by R.B. Johnstone
October 28th 1872 & duly registered in book 6 page 599, for description see
Registers Book."

"Another Tract - Beginning on a white haw tree that stands on the west side of
Hinton's Creek opposite some large rocks on the east side of said Creek, and
runs a west course to a plumb bush in the fence row, ten with the fence a west
course to a hazelnut bush & a rock set up in a fence row, then a SW course,
through the corner of a field to a white oak in the edge of the woods on a
hill side, then leaning a little S & up the ridge to a small white oak &
pointers, then a west course up the ridge to a small chestnut & pointers, then
same course but leaves the ridge & turns to the west side & a west course with
a line this day marked out by William Ray, Sr. (in his Will) & crosses the
head of a hollow to a black oak & pointers on a ridge, then a N.W. course up
the ridge to a small oak sapling & gum & maple pointers, then an east course
across the ridge & with the south line of tract no. 3, as in said Will, or
lower tract to Hinton's Creek to a black walnut, the beginning corner of Tract
no. 3 (in said Will) or lower tract, then up Hinton's Creek to the white haw
tree the beginning."

"Another tract n Bald Mountain Creek, known as the lands purchased by William
Ray, Sr. of David Proffitt & as the Renfrow lands & for a more specific
description see Registers book of Yancey County in book 2 page 31 & 32, the
deed executed by David Proffitt to William Ray, Sr.

"III. That Burton Ray, Elizabeth Ray wife of D.M. Ray, Hannah Ray wife of
Barnett Ray, and the children of William Ray, Sr., the remaining heirs are the
heirs of the children of William Ray, Sr. who are dead leaving these their
children & heirs, upon whom all the real estate of said William Ray descended,
some of the heirs of said Ray received tracts or parcels of land during the
lifetime of said Ray & an advancements to such heirs & they should account for
the same in the settlement of said William Ray, Sr. estate among all his
heirs.

"IV. That from the number of heirs their different interest, from the location
of several tracts of land & their different values they are satisfied a
division could not well be made equally & fair among all the heirs.

Whereupon Plaintiffs pray the court that an order & decree be made or issue
for the appointment of three disinterested freeholders with any of the parties
to lay off & allot in so many lots the aforementioned tracts or parcels of
land as the court may deem best & same be sold upon such terms as the court
may deem best & the commissioners appointed to sell when the purchase money &
interest collected pay the same into the office of said court & for other &
further relief as the court may deem best.... Sworn to & subscribed...
September 29 1888 {Signed} D.M. Ray"

October 23 1888: "State of Tennessee, Unicoi County} On this 23rd day of
October 1888 personally appeared before me H.C. Banner, Clerk of the County
Court of the aforesaid count and state, Hannah Ray, wife of Barnett Ray, and
daughter and heir at law of William Ray, deceased, who after being by me duly
sworn according to law, deposes and says:

"I have received one thousand dollars worth of land from my deceased father's
estate, and one mare worth seventy two dollars and fifty cents, one heifer
worth or valued at ten dollars, two sheep worth one dollar each, two small
shoats worth one dollar each, and the following household property, to wit,
bedding worth about twenty dollars, one loom worth about two dollars, two
chairs worth about 75 cents, one dining table worth about $7.50, and some
cooking vessels worth about $2.00, one set of teacups & saucers worth about 30
cents, one set of plates worth about 30 cents, two knives & forks worth 40
cents, one small churn worth about 30 cents, pot hooks worth 15 cents, one
small box worth 15 cents, making in the aggregate the sum of the above is the
only property that I now recollect of, $1,117.35. {Signed} Hannah 'x' Ray...
Sworn to and subscribed... at office in Erwin, Tennessee, this 23rd day of
October 1888"

November 15 1888: "Yancey County Superior Court} We the undersigned heirs of
William Ray deceased, viz: Elizabeth Ray wife of D.M. Ray and E.B. Ray,
plaintiffs, vs. Hannah Ray wife of Barnett Ray, Brejetta Jarvis, Robert
Anderson, Margaret George, Thursa Bryant, J.W. Edwards, Martha J. King, Thomas
Edwards, James Edwards, Lillie Ann Ray, Robert Ray, Janie Peterson, L.J.
Harral, McElroy Ray, Loraine Ray, Priscilla Ray, Ida Ray, Leanna Ray, Isaac
Ray, Hattie Whittington wife of Hiram Whittington, and Cora Ray daughter of
Thomas Ray (deceased), Willie Wilson, Hiram Wilson, Monroe Wilson, Zebulon
Wilson, children of Margaret Wilson, Defendants.

"We the undersigned plaintiffs petition the Superior Court that each of the
defendants be required to give to the Clerk a true inventory of all property
heretofore advanced to them by William Ray (deceased) and that the court
appoint three persons as commissioners to value the several tracts of lands
heretofore mentioned by the several above named defendants, show cause why
they should not account for the same in division of said estate. This
November15th 1888. {Signed} E.B. Ray and Elizabeth Ray by D.M. Ray"

"The following named heirs were present: D.M. Ray, William Bryant, J.C.
Peterson, Robert A. Ray, J.M. Edwards, W.J. King, W.B. Burleson, Thomas
Edwards, John W. Edwards, G.D. Ray representing Burton Ray, N.M. Wilson as
guardian of Zeb Wilson"

[From this point forward the above suit was referenced in the court records as
"David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et al]

December 10 1888: "Elizabeth Ray deposes and says she received of her father
William Ray (deceased) property as follows, to wit: One horse $70, One hog $2,
Two sheep $2, One cow & calf $15, household & kitchen furniture $15. Total
$104. {Signed} Elizabeth 'x' Ray... Sworn to & subscribed before me this
December 10th 1888. T.B. Ray, CSC"

1889: "N.M. Wilson returns the following inventory received of the estate of
William M. Ray as follows: One tract or piece of land worth seven hundred
dollars the time received, consideration of the deed, one thousand dollars.
One cow & calf worth fifteen dollars; one hog worth three dollars; two sheep
two dollars; one two year old mare worth forty dollars; household & kitchen
furniture $25.00. {Signed} N.M. Wilson, Guardian"

[Note: This transaction is the first I have seen where a middle initial is
attached to the name of William Ray. Another record, dated August 19 1900,
lists his name as W.M. Ray. Could both be errors?]

January 8 1889: "David M. Ray, et al vs. H.A. Whittington, et al} Yancey
County Superior Court} On motion it is ordered that there be a surveyor
appointed to survey the lands of William Ray deceased & that S.T. Proffitt,
J.W. Hurst and John Hensley be appointed commissioners to allot the lands in
from 6 to 8 lots as the surveyor and commissioners may agree, and report the
same to this office within 30 days. And it is further ordered, adjudged and
decreed that the lands be sold at the Court House door in Burnsville (after
giving 30 days notice) to the highest bidder. The purchaser paying 10 per cent
of the purchase money on the day of sale, balance being divided in two equal
installments. The first installment due six months from date with interest
from date, the balance to be due 12 months from date with interest from date.
The purchaser to give note and approved security title retained till purchase
is paid and It is further ordered that W.H. Gardner be appointed commissioner
to sell said land, subject to widows dower. {Signed} T.B. Ray, CSC"

January 15 1889: [As this is a letter, the spelling has been maintained]
"Madison County, North Carolina. To Mr. T.B. Ray, CSC: Dear Sir, in answer to
you letter of what I have received of William Ray deceased, as one of them
Hers I dont now Sir that I could give every item nor do I think I could give a
proper valuation for it has been a long time ago but I will venture:

"First item, two beds and furnture worth $35.00; second item two bed steeds &
cords $5.00; table worth $3.00; pot vessels worth $5.00; sluff (?) ware $1.00;
hogs and sheep $5.00; mare & saddle worth $5.00; Prices Creek land $1,000.00;
milk cow $12.00; four chairs $2.00. Total $1,168.00. The children nothing,
only the rent of the land what time they had it in posesion that William Ray
willed to them then sold thier interest to CR Bird. Thomas Gardner can give
account of the rents they receved, or N.B. Ray. This is a true list as far as
can recollect. I think Hannah Ray can giv it better than I can for I think
they was about eqal. That was my understanding. {Signed} N.M. Anderson"

February 16 1889: Surveyors / Commissioners Report: "Probate Court, February
16th 1889} David M. Ray & others vs. H.A. Whittington & others. In the above
case we the under signed commissioners appointed by the court to allot the
lands of William Ray, Sr., deceased, into as many lots as in our judgment will
enhance the sale of the same after having been duly worn did on the fourth day
of February 1889 proceed to allot said lands as follows:

"Lot No. 1 - Beginning on a white oak near a hollow a corner of J.G. Wilson's
land and runs S3W42 poles to a sourwood in J.G. Wilson's line. Then with his
line S87E60 poles to the east bank of a branch. Then N40W14 poles to a white
oak. N52-1/2W14 poles to a hickory on the point of a ridge. N35W21 poles to
two dogwoods. N12W32 poles to a maple and chestnut oak. N51W20 poles to a
bunch of dogwoods. N34-1/2W11-1/2 poles to a small sour wood on top of the
mountain. Then with main height of mountain S74W24 poles. S75W13 poles to a
three-double chestnut in Proffitt's line. Then S28-1/2 poles to a small post
oak in J.G. Wilson's line. Then with said line S87E42 poles to the beginning,
containing 19-1/2 acres.

"Lot No. 2 - Beginning at the mouth of what is known as Ray's Mill Creek or
Banks Creek and runs up and with Prices Creek N87W35 poles to a thorn tree.
N86W18 poles to a stake in the road. N55W16 poles S60W23 poles to a horse barn
at a small branch. Then up and with said branch N65W16 poles. S88W60 poles to
a small white oak on the north bank of branch. Then N45W with said branch 22
poles to a black gum. Thence N60W66 poles to pointers on top of mountain,
corner of Lot No. 3. Then with top of mountain S40W2poles. Then S51W16 poles
to a small sourwood the NE corner of Lot No. 1. Then with the lines of said
lot S34-1/2E11-1/2 poles to a bunch of dogwoods. S51E20 poles to a maple and
chestnut oak. S12E32 poles to two dogwoods. S35E21 poles to a hickory on the
point of a ridge. S52-1/2E14 poles to a white oak. S40E14 poles to a stake on
the east side of a branch, Mr. J.G. Wilson's line and the S.E. corner of Lot
No. 1. Then with Wilson's line S87E74 poles to a large white oak on the west
side of the road and at the lower end of J.G. Wilson's field. Then S88-1/2E82
poles to a small sourwood at Young Allen's corner. Then with Allen's line
S87E52 poles to the Mill Creek. Then down and with creek N30E12 poles, N55W16
poles. N33W38 poles to the beginning, containing 85-1/4 acres.

"Lot No. 3 - Beginning at a white haw tree on the west side of Hinton's or
Prices Creek opposite to some large rock and runs N87W48 poles, S84W18 poles
to a rock and hazel and crab apple bush, then S43W49 poles to a white oak on a
ridge. Then with main height of ridge N52W16 poles, N80W16 poles, N48W12 poles
to a sour wood a corner of lot No. 4 and 5, then with the line of lot No. 5
and the main height of ridge N80W19-1/2 poles to a chestnut oak, S50W8 poles
to a small red oak, N78W16 poles to a chestnut oak the SW corner of Lot No. 5,
S73W12 poles to a rocky knob, S8W10 poles, S68W8 poles, S40W20 poles to
pointers, the NE corner of Lot No. 2. Then with the line of lot No. 2 S60E66
poles to a black gum on the north side of the branch. Then with the branch and
the line of Lot No. 2 S45E22 poles to a small white oak, N88E60 poles to a
stake in the bend of the road, S55E16 poles, S86E18 poles to a thorn tree near
the creek. Then down and with the creek S87E35 poles to the mouth of the Mill
Creek, the beginning corner of Lot No. 2. Then down and with Hinton's or
Prices Creek N12E22 poles, N10W70 poles to the beginning, containing 90-1/4
acres

"Lot No. 4 - Beginning at a white haw tree the same as Lot No. 3, and runs
down and with the creek N36W30 poles, N30E12 poles, N15W8 poles, N40W33 poles,
W22 poles to a black walnut, the beginning corner of Lot No. 5. then S58W36
poles to a large white oak, S69W11 poles to a white oak, S59W11 poles to a
chestnut, S53W18-1/2 poles to a small water oak S26W46 poles to a small sour
wood, a corner to Lot No. 3 and No. 5, on top of a ridge, then with the top of
the ridge S48E12 poles, S80E16 poles, S52E16 poles to a white oak, N43E49
poles to a rock and hazel and crabapple bush, N84E18 poles, S87E48 poles to
the beginning containing 50 acres.

"Lot No. 5 - Beginning at a black walnut a corner of Lot No. 4, and near the
creek on the west side and runs S58W36 poles to a large white oak, S69W11
poles to a white oak,S59W11 poles to a chestnut, S53W18-1/2 poles to a small
water oak, S26W46 poles to a small sour wood on top of a ridge a corner of Lot
No. 4. Then with main height of ridge N80W19-1/2 poles to a chestnut oak,
S50W8 poles to a small red oak, N78W16 poles to a chestnut oak, N58E54 poles
to a large white oak, N55E32 poles to a dead oak near a small branch. Then
N85E34 poles to a double white oak, N34E10 poles to the head of a ditch, then
with said ditch N2E52 poles to the river. then up and with the river S58E60
poles to the mouth of Hinton's or Prices Creek. Then with creek S44W19 poles,
S17E10 poles, S63E12 poles to the beginning, containing 49 acres.

"Lot No. 6 - Beginning at a white oak in John Hensley's line about 14 poles
east of the Dailey Camp branch and runs W32 poles o the top of a ridge. Then
with main height of ridge N42W12-1/2 poles, S64W22-1/2 poles to a chestnut,
N20W26 poles to a service tree, N51W32 poles, N24W54 poles, N41W18 poles,
N32W33 poles to pointers. Then N66E50 poles to pointers in the gap of a ridge.
then S56E43 poles to a bunch of dogwoods in Edwards' line. Then with line
S1W16 poles to a black oak, S89E38 poles to a large red oak, S1W18 poles,
S89E30 poles, N43E21 poles to a white oak blocked, S87E60 poles to pointers,
the old Greenlee course, S3W70 poles to a white oak on a ridge the beginning
corner of Lot No. 7. Then with the main height of ridge N85W60 poles to three
sour woods, S1W60 poles to the beginning, containing 107 acres.

"Lot No. 7 - Beginning at a white oak on a ridge, R. Ray's corner and runs
with the ridge S70E12 poles, S38E20 poles, N88E20 poles to a black gum,,
S89E11 poles, S40E12 poles, S73E8 poles, S32E19 poles to a water oak at the
river, then down and with the river N50E39 poles, N66E18 poles, N38E68 poles,
N18E19 poles, N32W16 poles, N87W30 poles, N43W44 poles, N43W22 poles, N18W54
poles to a stake west of the mouth of a ditch on the east side of the river.
Then N87W40 poles, S2W34 poles to the top of a ridge. Then S70W7 poles, S2W52
poles to pointers the old Greenlee corner. Then S37W70 poles to the beginning
containing 115 acres.

"Making in all 516 acres divided into seven lots and for further information
see the accompanying map [map missing]. February 16th 1889. {Signed} James M.
Campbell, Surveyor; Thomas Gardner & Joseph Robertson, Chain Bearers; J.W.
Hurst, ____ Hensley, S.T. Proffitt"

April 1 1889: [A duplicate report, which was actually recorded May 7 1892, as
the original was lost by T.B. Ray, former Clerk of the Court] "To the Clerk of
the Superior Court of Yancey County} Pursuant to an order of the Superior
Court appointing me a commissioner to sell the lands of William Ray, deceased,
for partition among the heirs at law... I did this the 1st day of April after
due advertisement as the law directs proceed to sell lands at the Court House
door in the town of Burnsville upon the terms specified in said order.

"Lot No. 1 - To which reference is hereby made when J.G. Wilson became the
purchase of Lot No. One containing 19-1/2 acres more fully described in the
report of the Surveyor and Commissioners appointed by court... at the sum of
Three hundred dollars of which sum he... paid down in cash the sum of Thirty
dollars and I executed his two notes of hand... Lot No. 2 - Barnett Ray became
the purchaser of Lot No. 2 as land was divided as above set forth containing
85-1/2 acres at the sum of Fifteen hundred and Forty five dollars, and paid
down in cash the sum of one hundred fifty four 50/100 dollars and secured the
remainder by his two notes of hand with security... Lot No. 3 - G.D. Ray
became the purchaser... containing 90-1/4 acres and more fully described in
the Surveyors report above referred to at the sum of Two thousand and thirty
dollars, paid down in cash the sum of Two hundred and three dollars and
secured the remainder by his two notes f hand with security.

"Lot No. 4 - N.M. Wilson became the purchaser of Lot No. 4 (on the 1st day of
May 1889 said lot having to be re-sold) containing 50 acres... at the sum of
Two thousand & five dollars, paid down in cash Two hundred 50/100 dollars...
Lot No. 5 - G.D. Ray became the purchaser... containing 49 acres... at the sum
of Two thousand dollars and paid down in cash the sum of Two hundred
dollars.... Lot No. 6 - C.R. Byrd became the purchaser... containing 107
acres... at the sum of Seventeen hundred and eighty dollars and paid down in
cash one hundred and seventy eight dollars... Lot No. 7 - Martha H. & Cora Ray
became the purchasers... containing 115 acres at the sum of Twenty six hundred
and thirty five dollars and paid down in cash Two hundred and sixty three
50/100 dollars...

"I hereby respectfully submit the foregoing report as a DUPLICATE of a report
heretofore filed by me with T.B. Ray, Clerk of the Superior Court of Yancey
County which I am informed and believe is lost -- Commissioner.

"W.H. Gardner, Commissioner being duly sworn says that the foregoing is a true
and perfect report of the lands sold by him as commissioner as above set forth
and amounts paid and amounts secured and how secured. Sworn to and subscribed
before me this May the 7th 1892. {Signed} W.H. Gardner; W.B. Banks, CSC"

April 2 1889: "Received of W.H. Gardner, Commissioner appointed to sell the
lands of William Ray, eleven hundred and fifty two dollars and 50 cents so
much of the 10 percent of the sale of the lands... {Signed} T.B. Ray, CSC.
Attest D.A. Angel"

May 6 1889: "Received of W.H. Gardner... two hundred dollars on the purchase
money as sold today May 6th 1889. {Signed} T.B. Ray, CSC. Attest T.F. Rowland"

May 12 1889: "J. Bis Ray, pleas let Hiram have thirty five dollars and I will
be at Burnsville Monday next and give such a receipt as you want and get the
balance. {Signed} N.M. Wilson"

July 29 1889: "Received of W.H. Gardner... eight hundred and twenty dollars,
so much of the price of the lands as sold by him... {Signed} T.B. Ray, CC.
Attest N.M. Ledford"

November 15 1889: "Six months from date with interest from date at 6 per cent
we promise to pay G.D. Ray on order Six hundred dollars for value received of
him as witness our hands and seals, and we have this day given G.D. Ray an
order to the Clerk of the Superior Court of Yancey Co. for Six hundred dollars
out of the funds that may come into his hands from the estate of Wm. Ray and
when this order is paid by the Clerk the same is to be a credit on this note,
This Nov 15th 1889. E.B. Ray {Seal} W.B. Ray {Seal}"

"The Clerk of the Superior Court... will pay to G.D. Ray on order the sum of
Six hundred dollars out of any monies that may come into his hands from the
Estate of Wm. Ray from personal or real estate, together with interest on the
same up to date of payment. As witness our hand & seals, Mr. G.D. Ray holds
our note for $600.00 and when this order is paid it pays the note. Nov 15th
1889. E.B. Ray {Seal} W.B. Ray {Seal}"

"I accept the within order as Clerk of Superior Court, and agree to pay the
same when the money comes into my hands out of said estate for the said E.B.
Ray & W.B. Ray. {Signed} T.B. Ray, Clk of S. Court for Yancey County"

November 18 1890: "Six months from date with interest from date we promise to
pay G.D. Ray $641.95 received of him as witness our hands and seals, and we
have this day given G.D. Ray an order to the Clerk of the Superior Court of
Yancey Co. for $641.95 dollars out of the funds that may come into his hands
from the estate of Wm. Ray and when this order is paid by the Clerk the same
is to be a credit on this note, This Nov 18th 1890. E.B. Ray {Seal} W.B. Ray
{Seal}"

1890: "Before the Clerk... in the Matter of the Heirs at Law of Wm. Ray on
settlement with T.B. Ray from Clerk... who files the following receipts as
vouchers, ... Total $1,651.33"

April 1891: "Superior Court, Yancey County} William H. Gardner, Commissioner
against N.M. Wilson & Jule A. Abernathy. The plaintiff complaining of the
defendant alleges:

"I. That on the 8th day of January 1889 he was appointed a commissioner by the
Clerk of the Superior Court, Yancey County to sell the lands of William Ray
for partition among the heirs...

"II. That in pursuance of his duties as commissioner and by order of Court he,
after due advertisement as the law directs and in obedience of order proceeded
to sell the lands in lots at the Court House door in the town of Burnsville on
the 6 day of May 1889 to the highest bidder, when N.M. Wilson became the last
and highest bidder of Lot No. 4, which is more fully described in report of
the surveyor who divided the land into lots, a copy of which report is
hereunto attached [See report February 16 1889, above - M. Styles] and asked
to be taken as a part of this complaint marked Exhibit "A" at the sum of two
thousand & five dollars paying to this plaintiff the sum of two hundred 50/100
dollars in cash and executing his two seasonal notes of hand with J.A.
Abernathy as surety for the remained which notes are in the following words
and figures, to wit: $902 25/100, Six months from date with interest from
date, we or either of us promise to pay William H. Gardner, Commissioner, to
sell the lands of William Ray Sr. deceased, nine hundred and two dollars &
twenty five cents, it being purchase money for land for value received as
witness our hands and seals, May 6th 1889. {Signed} N.M. Wilson {Seal}, Jule
A. Abernathy {Seal}. $902 25/100, Twelve months from date with interest from
date, we or either of us promise to pay William H. Gardner, Commissioner, to
sell the lands of William Ray Sr. deceased, nine hundred and two dollars &
twenty five cents, it being purchase money for land for value received as
witness our hands and seals, May 6th 1889. {Signed} N.M. Wilson {Seal}, Jule
A. Abernathy {Seal}"

"III. That the said notes above set forth are still due and owing to this
plaintiff as commissioner as hereinbefore stated, no part thereof having ever
been paid, though the payment thereof has been demanded. IV. That at the time
the defendants executed the above described promissory notes this plaintiff...
executed to N.M. Wilson his certificate of purchase of Lot No. 4... and
plaintiff is now and has been ever since the notes became due ready to execute
to N.M. Wilson his deed for lands in obedience to the decree of Court upon the
payment to him of the sum of Eighteen hundred & four 50/100 dollars, and the
interest thereon, by the defendants, (1) Wherefore the plaintiff demands
Judgment against the defendants.... (2) For a decree that the defendants
specifically perform the specifications of sale and pay off judgment... or
until a commissioner be appointed to sell the lands herein described in this
complaint and that out of the proceeds of sale the commissioner pay off and
discharge judgment, interest, and cost.... Sworn to and subscribed April the
25th 1891, W.B. Banks, CSC"

April 3 1891: "Superior Court, Yancey County} William H. Gardner, Commissioner
against N.M. Wilson & Jule A. Abernathy} Answer. The defendants answering the
complaint of the plaintiff say:

"(1) They admit the allegations contained in paragraph 1st of the complaint,
but aver that as they are advised and believe, the order referred to in said
paragraph is void for reasons stated hereinafter. (2) That they admit
allegations contained in paragraph 2nd... but aver that as they are advised
and believe, said sale was void for want of power in said commissioner and
they aver they ought not to be compelled to pay said note for the reasons
hereinafter stated. (3) They admit no part of said notes have been paid as
stated in paragraph 3rd... but deny that said notes are still due for the
reasons hereinafter stated. (4) They admit the allegations of the 4th
paragraph... except that they deny that they owe anything on said notes. (5)
And for further defense the defendants say:

"That as they are advised and believe the commissioner Gardner can not make a
good title to the land sold by him and bid off by defendant Wilson for the
reason that the proceedings under which he was appointed commissioner and as
such made said sale are irregular and void in the following respects, to wit:
The record of proceedings fails to show that any summons was ever served upon
any of the alleged parties to proceedings and as the defendants are informed
and believe no summons was ever served on all the minors named as parties to
said proceeding. That the petition in proceedings does not disclose who are
plaintiffs and who are defendants and the proceedings upon petition if the
same was received as Exparte are void for the reason that the petition itself
shows that there are a large number of minors who are alleged parties and the
record nowhere shows that any order at any time made in proceedings was
approved by any Judge of the Superior Court and as defendants are informed and
believe no such order of approval was ever made. That the petition shows that
there are a large number of minors who are parties or alleged parties to this
proceeding, and who own a large interest in said land but defendants aver that
said minors are not represented in proceedings by any guardian, guardian ad
litem or next friend or any other person competent or authorized to protect
their interests.

"That so far as appears of record, Commissioner made no report of sale, and if
such report was ever made the record does not show any decree confirming sale
by the Clerk of the Court or any order of the Judge approving such decree and
as defendants are informed and believe no such decree or order of approval was
ever made. That the record nowhere at any place thereof shows that any notice
to the parties was ever given of the time when any order or decree would be
entered therein, and as defendants are informed and believe no such notice was
ever given. Defendants therefore pray judgment that the notes described in the
complaint be surrendered for cancellation and that the plaintiff refund the
cash payment made by defendant Wilson on his bid as shown in the petition and
for such other and further relief as the facts may warrant... Sworn &
subscribed... this the 3rd day of April 1891 {Signed} N.M. Wilson"

November 6 1891: [Note the disparity in the several dates below] "Subpoena
Civil... To the Sheriff of Yancey County... You are hereby commanded to summon
T.B. Ray if to be found in your court, personally to be and appear before His
Honor the Judge of our Superior Court at court to be held at the court house
in Burnsville on the 8th Monday after the 1st Monday in November, then and
there to testify in behalf of the Plaintiff in a certain matter pending,
wherein W.H. Gardner, Plaintiff, and N.M. Wilson, J.A. Abernathy,
Defendants... Issued this 6th day of November 1891. W.B. Banks, Clerk of the
Superior Court... Returnable to office of Clerk Superior Court on 8th day of
April 1893" Endorsed, "Received March 14 1893; Executed April the 3 1893, J.M.
Woody, Sheriff"

November 1891: [No title or cover sheet for the following, but it is a reply
to N.M. Wilson's argument of April 3 1891:] "In this case it appears that
under a former decree of the Court that an order of sale issued to W.H.
Gardner as commissioner to sell the lands described in the petition, and it
appears from the report of Gardner... that he did sell said lands as directed
by said decree. And this day appeared N.H. Malone, Esquire, Attorney for the
parties described in the petition, and moves the court for a confirmation of
the Report of Sale as made by Gardner on publication and reasonable notice to
all the parties in interest. And it has been suggested to the Court that
certain persons interested in the estate were not made parties to this
proceeding at the time of filing the petition and making the order of sale. It
is therefore ordered that summons issue for all the parties not already in
Court to appear and show cause why the Report of Sale shall not be confirmed;
and that notice issue to all the other parties in the cause to appear before
the court and show cause why report shall not be confirmed. And said summons
and said notices shall be returned before me on 31st day of December 1891."

[The following wording was stricken from the records: "And it further
appearing to the court that it is necessary to have an account in this cause
to ascertain various matters of fact, and to ascertain to whom the money is
due which results from the proceeds of sale of these lands, and the amount of
advancements chargeable to either or all of the parties; it is therefore
ordered that S.B. Briggs be and is hereby appointed to take and state an
account in this case upon the following matters:"]

"(1) The amount of the proceeds of the sales of the lands sold. (2) The amount
aid by said W.H. Gardner as Commissioner, to whom and when. (3) The amount of
costs incident to said sale. (4) The number of heirs entitled to the fund, and
the names of each heir, and whether of full age; and if minors their names
and, if guardians, who they are; and if married women, who are they. (5) The
amount of advancements received by each one of the parties in the lifetime of
the said William Ray deceased. (6) What is due each party taking into
consideration advancements less cost of this proceeding. (7) That the CSC
notify said W.H. Gardner and T.B. Ray (the former Clerk of this Court) to
appear and show what moneys or evidence of debt, are in their hands, belonging
to the estate. (8) Any other matters which the parties may desire (if relative
to a complete knowledge of the facts.)"

[Although the following two-page document is undated, it appears to have been
prepared in compliance with N.M. Wilson's request to have all the heirs, both
plaintiff and defendant named:]

"Living - (1) Hannah Ray & husband Barnett; (2) Burton Ray; (3) Elizabeth Ray
& husband D.M.

"Heirs of Deceased Parties: (1) Thomas Ray's heirs: Cora Peterson & husband
J.C. (2) Hiram Ray's heirs: Hattie Whittington & husband H.A. (3) Margaret
Wilson's heirs, wife of N.M. Wilson: (a) W.B. Wilson of age, (b) Hiram Wilson
of age, (c) J. Monroe Wilson of age, (d) Zeb Wilson, under 21, N.M. Wilson
guardian. (4) Polly Edwards heirs, husband C.W. Edwards [Cornelius]: (a) J.W.
Edwards [John W.] of age, (b) Martha Jane King wife of W.J. [William] of age,
(c) James Edwards of age, (d) Thomas Edwards of age, (e) Lilly A. Ray wife of
J. Ray of age. (5) Settled with in full and claims nothing: J.H. [John Henry]
Ray's heirs: (a) Robert Ray of age, (b) Jennie Peterson, wife of Palmer of
age, (c) McElroy Ray of age, (d) Lowring Ray of age, (e) Lula J. Harrell, wife
of J. Harrell of age, (f) Priscilla Ray a minor, (g) Ida J. Ray a minor, (h)
Isaac Ray a minor. (6) Thursa Anderson heirs: (a) Brejetta Jarvis wife of
Robert, (b) Margaret George wife of William, (c) Thursa Bryant wife of
William.

"Plaintiffs: David M. Ray & wife Elizabeth, Barnett Ray & Hannah, Burton Ray,
J.C. Peterson & wife Cora, Robert Jarvis & wife Brejetta, William George &
wife Margaret, William Bryant & wife Thursa.

"Defendants: H.A. Whittington & wife Hattie, W.B. Wilson, Hiram Wilson, James
Monroe Wilson, Zeb Wilson, N.M. Gardner, J.W. Edwards, Martha King & husband
J.W. King, James Edwards, Thomas Edwards, Lillie A. Ray & husband J. Ray,
Robert Ray, Jennie Peterson & husband Palmer Peterson, Lowring Ray, Julie J.
Harrell & husband J. Harrell, Ida Ray, Isaac Ray, Priscilla Ray"

"David M. Ray & wife, Burton Ray and others, vs. Hattie Whittington and H.A.
Whittington} In this it appearing to the satisfaction of the court that a-b-c-
d- parties to this suit are nonresident of the State. It is therefore ordered
that publication be made for six successive weeks in a newspaper published in
Asheville, requiring said parties to appear before the Superior Court of
Yancey County at Burnsville on the 31 day of December 1891 to show cause, if
any they have why the report of sale made in this case shall not be confirmed;
or why said sale should not have been made; otherwise said sale will on that
date be confirmed. W.B. Banks, CSC" [It appears that the notice was not run in
the Asheville newspaper, because another order for publication came from Mr.
Banks three months later.]

February 11 1892: "David M. Ray & wife Elizabeth, [Stricken - "Barnett Ray &
wife Hannah"], Burton Ray, J.C. Peterson & wife Cora, Robert Jarvis & Wife
Brejetta, William George & wife Margaret, William Bryant & wife Thursa, Heirs
at law of William Ray, Sr., Deceased, Against:

"H.A. Whittington & wife Hattie, W.B. Wilson, B. Ray & wife Hannah, Hiram
Wilson, J. Monroe Wilson, Zeb Wilson by N.M. Wilson guardian, J.W. Edwards,
J.W. King & wife Martha, James Edwards, Thomas Edwards, John Ray & wife
Lillie, Robert Ray, Palmer Peterson & wife Jennie, McElroy Ray, Lowring Ray,
J. Harrell & wife Lula J., Priscilla Ray, Ida Ray, Isaac Ray, Heirs at law of
William Ray, Sr.

"It appearing to the satisfaction of the Court that McElroy Ray, Lowring Ray,
J. Harrell & wife Lula J., Priscilla Ray, Ida Ray, Isaac Ray, parties to this
suit are non-residents of this State. It is therefore on motion... on behalf
of the plaintiffs in this cause of action ordered that Publication be made for
six successive weeks in the "Democrat", a newspaper published in the City of
Asheville requiring parties to appear before the Clerk... at the court house
in Burnsville N.C. on the 7th day of May 1892 to show cause if any they have
why the Report of Sale of lands of William Ray, Sr., shall not be confirmed or
why said sale should not have been made otherwise said sale will on that day
be confirmed. W.B. Banks, CSC, this February 11th 1892"

Several summons were issued in Yancey and Madison counties on that same date:
(1) McElroy Ray, Lowring Ray, Lula J. Harrell, Priscilla Ray, Ida Ray, Isaac
Ray, Anna W. Ray. Endorsed, "Due search made & not to be found in my county,
this February 11th 1892. L.M. Woody, Sheriff Yancey County" (2) Zeb Wilson and
guardian N.N. Wilson, indicating service was made on March 11 1892. (3) H.A.
Whittington, wife Hattie Whittington, W.B. Wilson, Hiram Wilson, J. Monroe
Wilson, endorsed "Served March 11 1892 on all but Hiram Wilson" (4) J.W.
Edwards, J.W. King, wife Martha King, James Edwards, Thomas Edwards, Lilly A.
Ray, husband John Ray, endorsed "Served March 11 1892 as to all but Lilly A.
Ray & husband" (5) Palmer Peterson, wife Jennie Peterson, endorsed "Served
March 25 1892" (6) To Sheriff of Madison County, for Hiram Wilson, endorsed
"Served April 4 1892. S.B. Candler, Sheriff, Madison County, by reading this
to the above named Wilson" (7) To Sheriff of Madison County, for Robert
Jarvis, wife Brejetta Jarvis, William George, wife Margaret George, William
Bryant, wife Thursa Bryant, endorsed "Served 23 April 1892 by reading the
within to parties above named. C.B. Candler, Sheriff"

February 15 1892: "Office of Superior Court for Yancey County. To Mr. T.B.
Ray, Esquire, Late Clerk of the Superior Court: It is on motion of... the
plaintiffs in the case of D.M. Ray & wife & others vs. H.A. Whittington & wife
& others, heirs at law of William Ray, Deceased. You are hereby notified to
appear before the Clerk... on the 7th day of May 1892 to make a full and
complete settlement account for and pay over all moneys or other thing of
value that came into your hands as such Clerk. Given under my hand and seal of
office this February the 15th 1892. W.B. Banks, CSC." Endorsed, "Received
February 20th 1892. Served March 15th 1892 by delivering a copy of the within
notice to T.B. Ray... by Sheriff, McDowell County.

"To William H. Gardner, Commissioner Appointed to sell the lands of William
Ray, Sr., Deceased: Upon motion of... plaintiffs you are hereby notified to
appear... on the 7th day of May 1892 to make settlement and account for all
moneys and notes that may have gone into your hands as such commissioner...
February the 15 1892. W.B. Banks, CSC" 

March 3 1892: From the "Asheville Democrat" newspaper - "Notice to Absent
Defendants... It appearing to the satisfaction of the court that Barnett Ray
and wife Hannah, McElroy Ray, Lowring Ray, J. Harrell and wife Lula J.,
Priscilla Ray, Ida Ray, Isaac Ray, Anna W., child of Mary Ray, widow of J.H.
Ray, deceased, parties to this suit, are non-residents of this State, it is,
therefore, on motion of... plaintiffs in this cause of action, ordered that
publication be made for six successive weeks in THE DEMOCRAT, a weekly
newspaper published in Asheville, N.C. requiring the said parties to appear
before the clerk of the Superior Court for the County of Yancey, at the Court
House in Burnsville, N.C. on the 7th day of May 1892 to show cause... why the
report of sale of lands of William Ray, Sr., deceased, shall not be confirmed,
or why said sale should not have been made, otherwise said sale will on that
day be confirmed."

March 7 1892: "Asheville, N.C., March 7th 1892 To W.B. Banks, Esquire, Clerk
&c, &c. I read your letter and have had the notice of publication filed which
is enclosed as printed. Please file this in the papers. I have given the
notices to the Sheriff of Madison County who has agreed to execute them and
wait for the fees until the final judgment. I will try to come over on the 7th
May if possible, if not I will write you instructions. We are now on the right
road to have the matter settled, and I hope we will push every inch of ground.
This matter must be settled. I think on motion of those who owe the sale notes
we can take judgment in your court on these notes. I will look into this and
let you know soon. Please make a report of all matters in the decree drawn by
me in your Court. If there are minors, please appoint Guardian ad litem and
notify him of such appointment. {Signed} W.H. Gardner"

May 7 1892: "David M. Ray & wife Elizabeth, and others -vs.- H.A. Whittington
and wife, and others} Heirs at Law of William Ray, Deceased. This cause coming
on to be heard upon the question of a confirmation of the sale of the lands
sold by W.H. Gardner... of William Ray, Deceased, petition having been filed
upon the affidavits of D.M. Ray, Esquire, and a decree of court had to sell
lands and it appearing... that all of the Legatees to estate had not been made
parties by service of summons. Therefore upon motion of W.H. Malone, Attorney
for the Plaintiffs, summons having issued to the defendants in this case to
appear at my office in Burnsville on the 7th day of May 1892 to show cause if
any they may, why the sale of said land shall not be confirmed. The parties
appeared in court and filed no answer and the commissioner W.H. Gardner having
filed his report of sale... that more than twenty days have elapsed since the
filing of the same and no exceptions having been file, And it further
appearing... that all the parties have had notice of the motion to confirm and
that publication has been duly made as to the non residence that the minors
are all represented by guardian, it is therefore ordered, adjudged and decreed
that the report of sale made by W.H. Gardner... be and the same is hereby in
all things confirmed. And... W.H. Gardner... be required forthwith collect the
purchase money and pay the same into court and he is ordered to make title to
the purchasers on the payment of the purchase money and the case is retained
for further orders as to the accounting of the parties and the distribution of
the money upon a further settlement in this case. This the 7th day of May
1892. W.B. Banks, CSC"

[Note: The following wording was stricken from the end of the above record:
"...Respectfully ask for an appeal from Clerk confirmation of the aforesaid
case. This 24th day of May 1892. {Signed} D.M. Ray & Wife Elizabeth; Wm.
Bryant & wife Thursa"]

"D.M. Ray & wife Elizabeth & Burton Ray} Plaintiffs vs. H.A. Whittington &
wife Hattie} Defendants} In the Superior Court, Special Proceedings. The
plaintiffs complaining of defendants allege:

"That William Ray died intestate in the County of Yancey and State of North
Carolina... leaving him surviving the following heirs at law, to wit: Hannah
Ray, Burton Ray, Elizabeth Ray; heirs of the body of Thursa Anderson
(deceased) viz, Robert H. Anderson, Brejetta, wife of Robert Jarvis, Margaret,
wife of William George, Thursa, wife of William Bryant; heirs of Mary Edwards,
deceased, viz, John Edwards, Thomas Edwards, James Edwards, Martha, wife of
William King, Lillie Ray, wife of John Ray; heirs of J.H. Ray, deceased, as
follows, Robert Ray, Jennie Peterson, wife of Palmer Peterson, McElroy Ray,
Loraine Ray, Julie Harrell, wife of J. Harrell, Priscilla Ray, Ida Ray, Isaac
Ray; Margaret Wilson (deceased) wife of N.M. Wilson, heirs of her body as
follows viz, W.B. Wilson, Hiram Wilson, James Monroe Wilson, Zebulon Wilson,
heirs of Thomas Ray (deceased), Cora Peterson, wife of J.C. Peterson; heirs of
Hiram Wilson (deceased) viz, Hattie Whittington, wife of Hiram Whittington.

"Whereas the real estate of William Ray (deceased)... has been ordered to be
sold on or about the year 1889 on a petition for partition by sale by the
heirs of William Ray at law and where as no return can be found in Court made
by the Commissioner of the sale... and whereas the minor heirs of said estate
have never been legally notified of said sale, and whereas the Superior Court
Clerk has not confirmed said sale, and whereas we the heirs at law of William
Ray understand and have good reasons to believe, that no money has been paid
into the Clerks office for distribution among heirs and also that the notes
given for said land has been due for more than twelve months. Therefore we
believe and hold that the whole and all the special proceedings in the
aforesaid partition is null and void by reason that the parties minor heirs
were not notified and return of sale not properly made by Commissioner in the
case. Therefore we pray the Court to order a partition of said lands among the
heirs at law and we will ever pray &c. We the heirs of William Ray give our
reasons for a partition of said lands:

"(1) That we condemn and impeach the former proceedings of partition of sale
for mistake. (2) That we condemn and impeach former proceedings for fraud. (3)
That we condemn and impeach the former proceedings for collusion."

"This 7th of May 1892. {Signed} D.M. Ray & wife Elizabeth Ray; W.J. King &
wife Martha J. King; W.P. Bryant & wife Thursa; N.M. Wilson, agent for Z.P.
Wilson & Monroe Wilson & W.B. Wilson" [See Insanity records of James Monroe
Wilson, Yancey County, wherein his father Nelson M. Wilson was appointed his
guardian]

March 14 1893: Summons issued to the following: (1) N.M. Wilson and Jule A.
Abernathy, Yancey County, endorsed "Executed April the 3 1893. L.M. Woody,
Sheriff" (2) T.B. Ray, McDowell County, "to make settlement and account for
any and all moneys that may have come into his hands as Clerk of the Superior
Court of Yancey County," endorsed "Served March 18th 1893 by delivering a copy
of the within summons to T.B. Ray, G.H. Gasdin, Sheriff McDowell Co." (3) W.H.
Gardner, Yancey County, endorsed "Served March 14 1893"

July 14 1893: Summons issued to T.B. Ray, McDowell County, endorsed "Served
July 18th 1893 by delivering a copy of the within summons to T.B. Ray"

August 1 1893: Summons issued to N.M. Wilson and Jule A. Abernathy, Yancey
County, endorsed "Received August 11th 1893. Served"

October 5 1893: Summons issued to the following: (1) T.B. Ray, McDowell
County, endorsed "Served October 18 1893" (2) H.H. Proffitt, Buncombe County,
endorsed "Served October 20 1893 by reading the within to H.H. Proffitt. J.A.
Brookshire, Sheriff"

October 14 1893: Summons issued to N.M. Wilson and Jule A. Abernathy, endorsed
"Served October 16 1893"

October 16 1893: "Motion for Judgment: W.H. Gardner, Commissioner to Sell land
of Wm. Ray, vs. N.M. Wilson & Jule A. Abernathy} Complaint. The Plaintiff W.H.
Gardner came to sell the land... complaining of the defendants alleges:

"1st - The plaintiff alleges that he was appointed... Commissioner to sell the
lands of the Estate of Wm. Ray, Sr., deceased, and as such commissioner filed
his bond which was accepted by the court, and that as such commissioner sold
the land at the court house door in the town of Burnsville on the 6th day of
May 1889. At which time N.M. Wilson became the last and highest bidder at the
sum of two thousand & five dollars, and N.M. Wilson paid the sum of $200
50/100, it being 10 per cent on bid. And executed and delivered to this
plaintiff his two promissory notes of $1,804.50 with Jule A. Abernathy as
Security... being sworn says that he is worth eighteen hundred dollars above
all exemptions. 2nd - That the two above named notes are past due and unpaid.
That no part thereof has been paid. That demand has been made by the plaintiff
of the defendant and they refuse to pay. Wherefore he prays the court, 1st
judgment for the sum of eighteen hundred and four dollars & 50 cents, with
interest on the same... and for a decree to sell the following lands to pay
the above amount, it being the purchase money... [description of the land] ...
containing 50 acres, being tract No. 4 on the survey, and for the cost of this
action."

October 26 1893: "W.H. Gardner, Commissioner to Sell land of Wm. Ray, vs. N.M.
Wilson & Jule A. Abernathy} This cause came on for trial on this 26 day of
October 1893, and by consent of the parties this case was continued until the
28 day of October 1893 at one o'clock p.m. W.B. Banks, CSC"

October 28 1893: "W.H. Gardner, Commissioner to Sell land of Wm. Ray, vs. N.M.
Wilson & Jule A. Abernathy} This cause coming on to be heard it being with
motion in the case of D.M. Ray & wife et al vs. H.A. Whittington & wife et al,
heirs at law of William Ray, deceased. Summons was issued for the defendants
on the 14th day of October 1893 and delivered to the Sheriff of Yancey who
hath returned the same marked Executed on the 16th day of October 1893, for
the recovery of two notes as described in the complaint signed by N.M. Wilson
& Jule A. Abernathy which were acknowledged by the defendant, and upon motion
of attorneys for the Plaintiff it is adjudged and ordered by the court that
the plaintiff recover judgment against the defendants for the sum of two
thousand two hundred and forty six dollars with interest on eighteen hundred
and four 50/100 dollars from the 28th day of October 1893 until paid together
with the cost of this action.

"And it further appearing to the satisfaction of the court from the face of
the notes and the complaint filed that the said notes were given for the
purchase money for the lands described in the plaintiffs complaint. It is
therefore decreed, ordered by the court that W.H. Gardner... make or cause to
be made a good and sufficient deed of conveyance to the said N.M. Wilson for
the land... and deposit... with the Clerk... on or before the 26 day of
February 1894. And that upon the payment by N.M. Wilson of the amount in full
of this judgment, interest & cost... that in that event the Clerk... is to
deliver the deed to N.M. Wilson. But in default of N.M. Wilson or his legal
representative to pay the sum of $2,245.80, together with the interest on the
sum of $1,804.50 on the 26 day of February 1894, then W.H. Gardner shall
proceed to sell the land... at the Court House door... after 1st advertising
the same at the Court House door and three other public places in the county
for 30 days, to the highest bidder for ready money. And to make and deliver to
the purchasers agent a sufficient deed of conveyance as full and ample a
manner as his appointment as commissioner will warrant. And to pay purchase
money in to the office of the Clerk... W.B. Banks, Clerk..."

"D.M. Ray & wife, Burton Ray & others, vs. Hattie Whittington wife of H.A.
Whittington & others} Appeal. In this cause, W.H. Gardner... vs. N.M. Wilson &
Jule A. Abernathy. The defendants appeal from the judgment of the Clerk of the
Superior Court rendered against them on October 28 1893 and for cause of
appeal and as error alleges:

"1st - That the Clerk has no power to enter judgment in this proceeding as
against a purchaser at the sale. (2) Because the petition and record herein
shows that no parties are named as plaintiffs or defendants except two, to
wit, D.M. Ray and Hattie Whittington, and the petitioner shows there are many
other parties. (3) That the proceeding shows to be adversary and no summons
was served on any of the defendants. (4) The petition shows there are a number
of minors and there was no service on any one of them or on any guardians or
that any guardian ad litem was appointed for any of them or that any of them
sue by their next friend. (5) That there was no summons served on any of the
defendants whoever they may be before judgment. (6) There was no answer filed
by any of the defendants or guardians or guardians ad litem and no decree
entering judgment for the want of such answers. (7) That the record does not
show that the minors were represented by next friend or guardian (8) That
there was no legal notice of confirmation of sale because there was no one
representing the minors by guardian or next friend, and if there had been
there was no certificate of publication for service by affidavit as required
by law. (9) That this sale being ordered by the Clerk the same was made before
he had acquired jurisdiction of the parties to the action. (10) That the order
for the sale having been made before the service of summons the clerk had no
power to order the sale. (11) That the notice to confirm the sale (if had on
the defendants) could not vest the power in the clerk to confirm a sale made
before service of summons."

"D.M. Ray and wife and others, the Heirs at Law of William Ray, deceased}
Partition. This is a suit for the sale of the lands for distribution among the
heirs... The sale was regularly made... There being no exception to the Report
of Sale, notice was issued to all the resident parties and publication as to
non-resident parties, the report of sale was confirmed by me (and because of
some minors in the case who have guardians ad litem and regular guardians) the
sale was confirmed by Judge Armfield (?) one of the Judges of the Superior
Court. On notice a judgment was rendered against the appellant (Wilson) for
the amount due on a sale note in favor of the Commissioner who made the sale.
The said Wilson has given no satisfactory reason for the appeal. Papers sent
up. W.B. Banks, CSC"

May 1894: "D.M. Ray .... vs. H.A. Whittington ... and N.M. Wilson} Partition
Proceedings. Appeal From the Clerk. This cause came on to be heard before the
Honorable Robert W. Winston, Judge presiding at the Spring Term 1894 of Yancey
Superior Court, upon the appeal of N.M. Wilson from the judgment rendered
against him in the cause by the Clerk... and upon the exceptions filed by the
defendant N.M. Wilson; and arguments of counsel being heard the court finds
the following facts:

"1st - That all of the parties in this proceeding (being the heirs at law of
Wm. Ray deceased) who are residents of the State are parties properly in court
and represented by counsel in this case; and were present in person before the
Clerk. 2nd - That the non-resident parties have been properly made parties to
this proceeding by publication in the Asheville Citizen, a newspaper published
in Asheville, N.C. for the time and in the manner required by law. 3 - That
the report of sale has been properly confirmed on full notice, to all the
parties, and the court being of opinion that the exceptions of the defendant
Wilson to the judgment rendered against him are insufficient in law, the same
are overruled. And the action of the Clerk... is in all ways confirmed. The
defendant N.M. Wilson will pay the costs of the appeal... {Signed} Robert W.
Winston, Judge Presiding"

"Spring Term. D.M. Ray & wife Elizabeth Ray.... vs. T.B. Ray, Jule A.
Abernathy, J.W. Burton, W.H. Gardner, H.A. Proffitt & A.J. Burton} The
plaintiffs complaining of the defendants allege:

"I. That on the [ ] day of [ ] 188[ ] William Ray died intestate leaving him
surviving the above named plaintiffs his heirs at law. That at the time of his
death the intestate was seized and possessed of large and valuable boundaries
of land that descended to his heirs at law. That after the death of William
Ray, on 29 day of September 1888 a petition was filed before the clerk of the
Superior Court of Yancey County asking that lands be sold... for partition
among heirs at law. II. That by an order, T.B. Ray, Clerk of the Superior
Court... W.H. Gardner was duly appointed commissioner to sell lands upon the
terms set forth in order or decree, a copy of which decree is hereunto
attached and marked Exhibit "A" and asked to be taken as a part of this
complaint."

[Note: To avoid unnecessary duplication, refer to the Order of Survey, dated
January 8 1889 above, for the text of Exhibit "A".]

"III. That in obedience to said decree, W.H. Gardner, Commissioner, sold the
lands described... as aforesaid for the sum of Twelve Thousand Two Hundred &
Ninety Five dollars, receiving in cash on the day of sale 10 percent of the
purchase money for which said lands sold... IV. That on the dates of the
receipts set forth in Exhibit "C", 1889, T.B. Ray was Clerk of the Superior
Court... having duly qualified as such... and having executed and delivered
his bond... with the sureties on the same whose names appear on the bond, a
copy of which bond is hereunto attached and marked Exhibit "B" and asked to be
taken as a part of this complaint."

[Note: See dates April 2 1889, May 6 1889, and July 29 1889, above, for the
text of Exhibit "C". Exhibit "B" is the bond secured by T.B. Ray upon taking
office as Clerk of the Superior Court of Yancey County. His bond sureties, on
December 6, 1886 in the amount of $11, 000, were J.W. Burton $4,000, J.F. Sams
$2,000, J.G. Wilson $4,000, A.J. Burton $1,000. The following year, T.B. Ray
was again elected Clerk, and secured a bond on December 2 1887, with sureties
totaling $14,000: Jule A. Abernathy $3,000, J.W. Burton $4,000, William H.
Gardner $4,000, J.G. Wilson $1,000, H.A. Proffitt $1,000, A.J. Burton $1,000;
this is included as an Exhibit "D".]

"V. That on the date set forth in Exhibit "C" W.H. Gardner... paid into the
office of the Clerk... the sum amounting to twenty one hundred and seventy two
50/100 dollars of the purchase money of lands hereinbefore referred to and the
same was received by the said T.B. Ray... who executed his receipt to W.H.
Gardner... for the same a copy of which is hereunto attached and asked to be
taken as a part of the complaint, said copy marked Exhibit "C." VI. That said
commencement of this action and before the said T.B. Ray turned over the
Clerks office to his successor in office, W.B. Banks, demanded of T.B. Ray
said money on that part of the same due these plaintiffs and the defendant
failed and refused to pay over to said heirs said money or any part thereof.
VII. That as these plaintiffs are informed and believe, when the defendant
T.B. Ray, Clerk, turned over to his successor in office W.B. Banks the said
T.B. Ray... failed and refused to turn over and deliver to his successor the
money or any part thereof. VIII. That since T.B. Ray surrendered office...
these plaintiffs have demanded of him... the money... paid to him by said
Commissioner, T.B. Ray has refused and still fails and refuses to pay over or
account for said money. IX. That by means of such refusal and failure on the
part of T.B. Ray... to pay over and account for the money aforesaid so placed
in his hands... these plaintiffs have been damaged in the sum of twenty one
hundred and seventy two 50/100 dollars, with interest from the dates of the
receipts in Exhibit "C" of this complaint. Wherefore the plaintiffs demand
judgment against the defendants for the sum of ten thousand dollars to be
discharged upon the payment to the plaintiffs by the defendants the sum of
twenty one hundred and seventy two 50/100 dollars, together with interest...
together with the cost of this action to be taxed by the clerk."

May 25 1894: "D.M. Ray & wife vs. H.A. Whittington & others} In this case it
is agreed that the record, orders & judgment shall constitute the case on
appeal for Supreme Court, and that appeal bond is fixed at $25 and time given
to file the same. That appeal was prayed in open court -- notice of appeal
waived."

Fall Term 1894, Yancey County Superior Court: "D.M. Ray et al Heirs at law of
William Ray, Deceased vs. T.B. Ray, Jule A. Abernathy, J.W. Burton, W.H.
Gardner, H.A. Proffitt, A.J. Burton} This cause coming on to be heard at the
present term of this court before his Honor W.R. Allen, Judge presiding. By
the consent of the defendants it is made on motion of... attorneys for the
plaintiffs... ordered, adjudged and decreed that the plaintiffs recover of the
defendants, T.B. Ray & his sureties on his official bond as Clerk of the
Superior Court of Yancey County to wit: Jule A. Abernathy, J.W. Burton, W.H.
Gardner, H.A. Proffitt & A.J. Burton, J.G. Wilson the sum of ten thousand
dollars to be discharged upon the payment of such sum as the Clerk of this
Court upon settlement may find was paid by the said commissioner W.H. Gardner
to T.B. Ray Clerk heretofore said & has not been paid out and disbursed by
T.B. Ray... to make such settlement and file the amount in his office before
the Spring Term 1895. No exception to issue until after Spring Term of 1895 of
this Court."

April 5 1895: "Yancey County, N.C. We the undersigned heirs of William Ray
deceased petition the Superior Court... that in the sale of the lands of
William Ray it appears that lot No. 4 known as the N.B. Ray lot is now
advertised to be sold on 6th of May 1895 for the purchase money. Said sale is
not on time but for ready cash paid down. We the undersigned object to sale
for ready cash by reason that we believe this to be a hard time and a great
scarcity of money in so much that the lands will not bring their worth, so we
ask the Superior Court to decree in said sale that the heirs be allowed to bid
to the amount of what is due them from said estate and said bid be counted to
them as ready cash paid down and we will ever pray &c. {Signed} W.J. King,
E.B. Ray"

April 17 1895: "Came to me the undersigned Justice of the Peace, M.H. Ray.
Certified my oath that she had received from the estate of William Ray, 1
horse, 1 milk cow worth about $100.00. Sworn before me this the 17 day of
April 1895 {Signed} T.J. Edge, JP"

April 27 1895: "Statement of property received by Polly Edwards from William
Ray, deceased: One tract of land $800.00; one mare $75.00; one cow $12.00; two
sheep $2.00; one sow $3.00. Total $892.00. This statement made by C.W. Edwards
this April 27 1895.

April 29 1895: "Invoice for Burton Ray the amount of goods & chattels that
Burton Ray has received from his father William Ray, deceased, to wit, article
1st, one tract of land valued by my father at $800.00, 1 heiver [heifer]
valued by my father $9.00. He gave me five dollars cash to pay doctor bills.
{Signed} E.B. Ray. Sworn to before me Wilson Hensley a Justice of the Peace
this April 29th 1895"

May 6 1895: "Received of W.H. Gardner the commissioner appointed by court to
sell the lands of William Ray by W.B. Banks, CSC, two thousand four hundred
and seventy dollars $2470), so much on the amount due me from the estate of
William Ray and this receipt shall be a voucher in the settlement of the
estate. This May 6th day 1895. {Signed} Elizabeth 'x' Ray, D.M. Ray. Attest
T.P. Ray"

June 1 1895: "D.M. Ray et al... vs. Hattie Whittington et al...} A settlement
having been filed with me in this case and the amount due each heir having
been set out therein and the heirs at law of the said William Ray having
examined the same and being desirous that this estate be wound up and approved
by the court, do hereby agree that the Clerk of the court and the Judge of the
Superior Court at Fall Term 1895 enter their respective judgments confirming
the judgment in this case, this the first day of June 1895, and it is further
agreed that all attorneys fees shall be allowed to both parties in the will
contest and in the settlement of this case by their filing their receipts from
the same. {Signed} H.L. 'x' Ray"

June 6 1895: "D.M. Ray et al... vs. Hattie Whittington et al...} Exception to
report by N.M. Wilson... J.C. Peterson & D.M. Ray, heirs at law of William Ray
deceased, being advised and now believes that N.M. Wilson and his wife
Margaret received a deed from William Ray for lands as and to them made, in
which deed $1000 was the consideration and as this affiant is informed and
believes the said N.M. Wilson has filed his affidavit in which he says the
lands so covered were worth only $700 and in said affidavit he admitted the
consideration to have been $1000. This affiant therefore asks that N.M. Wilson
be charged with $1000 on the land... instead of $700 reported by him. {Signed}
J.C. Peterson; D.M. Ray... Sworn to and subscribed... this 6th day of June
1895. W.B. Banks, CSC"

June 8 1895: "D.M. Ray et al... vs. Hattie Whittington et al...} Notice. To
N.M. Wilson. You will hereby take notice that an exception has been filed
before me, to your report of advancements upon affidavits setting forth that
your land was advanced to you at the value of $1000, when you have reported it
at $700. You will therefore appear before me at my office and show cause if
any you can why your advancement should not be put at $1000 instead of $700.
You will appear on the 18th day of June at 1 o'clock p.m. {Signed} W.B. Banks,
CSC" Endorsed, "Executed by leaving a copy of this summons at the house of the
defendant"

June 18 1895: "David M. Ray & wife, et al vs. H.A. Whittington and wife, et
al} J.C. Peterson and D.M. Ray having filed affidavits excepting to the
valuation of the land advanced to Margaret Wilson, wife of N.M. Wilson by her
father William Ray, the land N.M. Wilson having given in the value of a tract
of land to be $700, and states himself under oath that the consideration in
the deed from William Ray to Margaret Wilson was $1000, notice having been
served upon N.M. Wilson to appear before the Clerk of the Superior Court... on
the 18th of June 1895 to show cause if any he may why he shall not be charged
with the $300 to make the advancement of $1000. Whereupon the following
proceedings were had, to wit:

"N.M. Wilson being present who was guardian of the children of Margaret his
wife who is now deceased and admits the fact to be that the consideration in
the deed... was $1000, and that the date of deed, a deed of record from Book 6
Page 100 of William Ray & Jane Ray his wife to Margaret Wilson dated March the
22 1869, deed containing 208 acres. The statement of N.M. Wilson under oath as
to the advancements to his wife Margaret by William Ray, deceased, of which
the following is a copy:

"N.M. Wilson returns the following inventory received of the estate of William
Ray as follows: one tract or piece of land worth $700 at the time received
consideration of the deed $1000. {Signed} N.M. Wilson, Guardian. Sworn to and
subscribed... this January 11 1889. {Signed} T.B. Ray, CSC"

"J.G. Wilson being sworn says that he knows the lands... deeded to Margaret
Wilson... was worth $1000 at the date of the deed and the land is now worth
$1500. On his cross examination says he was acquainted with the land. "It was
in bad cultivation. I know a part of the land. I heard William Ray say he
offered D.M. Ray and wife a piece of land and asked me if I thought it was
worth as much as Margaret's. He said he valued Margaret's land at $1000. Did
not hear him say what he paid for it."

"N.B. Ray being sworn says that he knows the land and it was worth $1000 in
1869. It is now worth $1500 or $1600. On cross examination, says he has been
over the lands, does not know the number of acres, that William Ray showed him
the land. "I have heard father say that Margaret was worth more to him than
any of the rest of his daughters. I heard father say he had give her that land
& valued it at $1000. My recollection is that he, William Ray, paid $800 for
the land."

"Defendants Witness. W.B. Banks being sworn says, "I have been acquainted with
the land 60 or 65 years. It was worth at the time of the date of the deed, was
worth $700. I think I could have purchased land worth more than that at $2 per
acre at that time. Cross examination. I knew William Ray, do not know how much
land he owned, do not know the number of acres in the tract. It may be worth
$1000 at this time."

"Defendants Witness: D.A. Angel says he has known the land 45 years and at the
date of the deed it was worth about $800. Cross examination. "I do not know
the number of acres. A good long line runs with Cane River. The soil back from
the river is good clay soil. The land at this time is worth about $2000. The
buildings are about the same or not so good as in '69. A portion of the land
next to the river is sandy and won't hold. One building has been put on the
land; it is an improvement. I think in the whole of the improvement, I do not
know whether they have increased or decreased. I think that land was about
equal to the best land in the county at that time. I remember the time the
house was put at the river, it was put there for a grocery. It was an old
home. It would cost about $200; do not know how long it was used, about 2 or 3
years, situated on the swamp road leading from Burnsville to Asheville, about
2-1/2 miles from Burnsville."

"R.B. Anglin says he thinks the land was worth about $800 at the date of the
deed. Cross examination. My age is 64. I knew William Ray. He was a good judge
of land. A portion of the land is a good clay soil. Do not know the number of
acres. Do you know the McCanless house at the River? That's where N.M. Wilson
put up a good set of stables on the land. The house and stables ought to be
worth $200. The land is worth $1600 at the time. W.B. Banks recollected, and
says such house and stable could be build for $30. The house was used as a
grocery."

"Plaintiffs Witness: Sid McCanless being sworn says the land in controversy
was worth $1000 in the year 1869, does not know what it is worth now. The land
at the time of the deed was in bad condition."

"C.W. Edwards... says that he knows the land was worth at the time of the deed
$1000. At this time it is worth $1500 or $2000. Four or five acres of the land
next to the river is sandy; the balance is good flat clay except the mountain
land. He finds that sandy land is as easy improved as other land."

"Plaintiffs Witness: T.B. Ray... says that he knows the land in dispute and
says the land in the year 1869 was worth $1000. It is worth at this time
$2000. Cross examination. What was the price of the other land at that time?
$350. The land in dispute was worth the most. William Ray's judgment at the
time of the date of the deed was good. Says that there was a good deal of
difference in the land deeded to Margaret Wilson and the land across the River
deeded to Hiram Ray. The land deeded to Hiram Ray was worth a great deal more
according to the consideration recited in the deed."

"Plaintiffs Witness: James McCampbell... says that he knows the land in
dispute at the date of the deed from his knowledge of that land and other
lands surrounding, "I think it ought to be worth about 5 or 6 dollars per
acre. I think it is worth ten dollars per acre at this time. Cross
examination. "I have been in this county about 22 years." Question: How long
since you came to this county before you knew this land? "Immediately after I
came. Could not purchase as good land as that for $2.50 per acre. I would
rather have clay land. Some of the bottom land won't hold manure."

June 18 1895: "David M. Ray et al vs. Hattie Whittington et al} Before the
Clerk. I find as a fact from the affidavit of N.M. Wilson, guardian of the
children of Margaret Wilson, deceased, that William Ray, deceased, valued the
land that he conveyed to Margaret Wilson on the 22nd day of March 1869 at
$1000. I find from the deed from William Ray to Margaret Wilson which is
registered in book 6 page 100 that the consideration in said deed is $1000,
and that the deed is for 208 acres of land. I find as a fact from the within
J.G. Wilson that the land described in deed... was worth at the date of the
deed $1000, and that it is now worth $1500. I find as a fact from the evidence
of N.B. Ray that the land was worth $1000 in the year 1869 and that it is now
worth $1500 or $1600. I find as a fact from the evidence of T.B. Ray that the
land conveyed by William Ray to Margaret Wilson in 1869 was worth $1000 and
now worth $2000. I find as a fact from the evidence of Sid McCanless that the
land in controversy was worth $1000 in the year 1869. I find as a fact from
the evidence of C.W. Edwards that the land described in the deed... was worth
$1000 and it is now worth from $1500 to $2000. I find... from the evidence of
James McCampbell that the land described in the deed, it containing 208 acres,
was worth 5 or 6 dollars per acre. Estimating at $5.50 per acre, amounts to
$1,144 and that it is now worth 10 dollars per acre and the character of all
these witnesses were proven to be good. I find from the defendants with W.B.
Banks (Senior) that the land described in the deed... was worth $700 at the
date of the deed... I find from the evidence of D.A. Angel that the land...
was worth in 1869 $800. I find from the evidence of R.B. Anglin that the land
was worth at the date of the deed $800.

"This being a contention concerning the value of the tract of land conveyed to
the wife of N.M. Wilson by William Ray in which that N.M. Wilson as guardian
for the children of Margaret Wilson and give the same in his report as
guardian as an advancement to his wife by her father at the sum of $700. I
find as a matter of law from the facts above stated that the valuation of said
land on the 22nd day of March 1869 was one thousand dollars. And it is
adjudged, decreed and ordered that the children of Margaret Wilson, deceased,
be charged with one thousand dollars in real estate for the value of the land
conveyed to her by her father... in the distribution of the estate of William
Ray, and that N.M. Wilson... be taxed with the cost of this action to be
charged to the heirs at law of Margaret Wilson... Given under my hand and seal
this June the 18th 1895. {Signed} W.B. Banks, CSC"

July 6 1895: "David M. Ray & wife, and others vs. Hattie Whittington and
others} Exceptions to Report of Nathan M. Anderson, Husband of Thursa
Anderson} Nelson M. Wilson, husband of Margaret Wilson who was an heir at law
of William Ray, being duly sworn says that he is advised and believes that the
report of the advancement named, made by Nathan M. Anderson, Husband of Thursa
Anderson by William Ray, deceased, is defective and incorrect in that there
was advancement as this affiant is informed and believes made to Nathan
Anderson and his wife Thursa Anderson of one slave of the value of $1000. This
affiant is informed and believes that even if it was not an advancement the
said Nathan Anderson & wife had the service of the same and should account to
the heirs for the same from date of the marriage of Nathan Anderson and wife
until the death of his wife Thursa Anderson and that Nathan Anderson should
account for the same to the heirs of William Ray or be charged with the sum of
$1000 for the service of said slave. That as this affiant is informed &
believes the parties named herein received as advancement the property above
named and that they have not accounted for the same. {Signed} N.M. Wilson.
Sworn to... this the 6th day of July 1895. W.B. Banks, CSC"

"N.M. Wilson vs. N.M. Anderson} N.M. Anderson, defendant, answering the
complaint of N.M. Wilson the plaintiff alleges: That the complaint of N.M.
Wilson is untrue, therefore denied. That for further defense the defendant
avers, That the father of Thursa Anderson, William Ray, permitted a small
colored girl about 4 or 5 years old to stay with his wife, that the girl came
to his house about the year 1854 and remained there until 2nd day of August
1859, at which time this affiants wife [Thursa] died, and that colored girl
was taken back to former house, and that her services was not worth the
victuals and clothing that she furnished her during this time and that he nor
his wife never had a bill of sale to said girl, and that they never received
said girl as an advancement from the estate of William Ray, deceased. {Signed}
N.M. Anderson"

July 15 1895: "State of Tennessee, County of Unicoi} I, W.B. McNabb, Clerk of
the Circuit Court of the county of Unicoi and State of Tennessee, which court
is a court of record and having a seal which is hereto attached, do certify
that W.S. Tucker, who is to me well known as the deputy sheriff of said county
and who being duly sworn says that as such deputy sheriff he has full power to
serve any and all legal process and that on the 15th of July 1895 he served
the summons hereto attached upon Hannah Ray the defendant named in said
summons by delivering a copy of summons to her."

August 24 1895: "State of North Carolina, Yancey County, Before W.B. Banks,
Clerk. N.M. Wilson vs. C.W. Edwards} This being a case in the settlement of
the estate of William Ray by this plaintiff to charge C.W. Edwards & wife
Polly with the advancement of [one] Negro girl at $1000. This cause coming on
to be heard upon the complaint and answer the plaintiff N.M. Wilson comes into
court and declines to prosecute his case any further and upon his own motion
takes a non-suit, wherefore it is adjudged by the Court that the cost of this
proceeding be taxed against the estate of William Ray, deceased. This August
the 24 1895. W.B. Banks, CSC"

"N.M. Wilson vs. Hannah Ray} Answer. Hannah Ray answering the complaint of the
plaintiff N.M. Wilson alleges:

"1st - That the complaint of the plaintiff is not true. Therefore it is denied
in total. And for further answer the defendant avers that her father William
Ray had in his possession a Negro girl which was the property of her
grandmother. That about the year 1859 her father permitted the girl who was
then about 8 years old to stay with them. That she never had any bill of sale
for the girl, and she never hired the girl. That she clothed and fed the girl
during the time she stayed & this fully paid for all the services she
rendered. 2nd - That there was no contract of hire or otherwise for said
services. 3rd - That the girl was not an advancement from her father William
Ray to her as part of his estate & wherefore she demanded judgment for the
cost of this action. {Signed} Hannah 'x' L. Ray. Sworn & subscribed... August
24th 1895. W.B. Banks, CSC"

"N.M. Wilson vs. Nathan Anderson} Both heirs at law of William Ray. This cause
came on for trial on this August the 24th 1895. Plaintiff Witness: Nathan
Anderson says that he had the service of a Colored girl about 5 years.

"She was 4 or 5 years old when I took her. I think her services was not more
than her victuals & clothes. I never had any bill of sale for her nor did my
wife hire her. She was not worth her victuals & clothes while she stayed. I
gave her plenty to eat, gave her clothes. My wife died the 2nd day of August
1859. The girl went to William Ray's at that time and remained there. Never
was anything said to me about her coming or going away."

"Redirect: "My wife brought her there. It saved me of hiring another girl."

"2nd witness: D.M. Ray says that a girl 5 years old would not be worth more
than victuals and clothes. 3rd witness: C.W. McIntosh. Question: What do you
think a girl 5 years old would be worth? Answer: Nothing."

"N.M. Wilson vs. Nathan Anderson} This being a case in the settlement of
William Ray, deceased, by the plaintiff to charge Nathan Anderson & wife with
the advancement of one Negro girl at $1000. This cause coming on to be heard
upon the complaint and answer, and after hearing the evidence of the
Plaintiff, the defendant introduced to me testimony and I find as a fact from
all the testimony of the plaintiff that the Negro girl was never given to the
defendants by William Ray as an advancement and I find as a further fact that
the girl was only 5 or 6 years old when she went to stay with this defendant,
and remained with him for about 5 years and I find from the evidence that her
services was not worth more than her victuals & clothes. And I find as a
matter of law that the defendant Nathan Anderson be charged with nothing, and
that the cost of this proceeding be paid out of the estate of William Ray,
deceased. This August the 24th 1895. W.B. Banks, CSC"

October 22 1895: "David M. Ray & wife Elizabeth, et al vs. H.A. Whittington
and wife, et al} This cause coming on for a final settlement with W.H. Gardner
the Commissioner appointed by court to sell the lands of William Ray and the
heirs at law of William Ray. Whereas the heirs at law... had an agreement
among themselves that those of the heirs who had purchased land at sale should
have a credit on said purchase to the extent of their interest in the estate;
that settlement has been made and their several interests passed to their
credits and the foregoing settlement sets out in full every item in said
estate. There is yet remaining a portion of the purchase money unpaid with the
interest and all computed to the first day of November 1895. It is therefore
ordered, adjudged and decreed by the Court that W.H. Gardner... proceed to
collect and pay into court the remaining of the purchase money of the various
lots sold by him... and to make the purchases a proper deed for the various
lots purchased by them and it is further ordered... that the foregoing
settlement is in all things confirmed. This October the 22nd 1895. W.B. Banks,
CSC"

"From the foregoing judgment, Cora Peterson one of the parties in interest,
appeals to the Judge of the Superior Court. From the foregoing decree, W.H.
Gardner appeals as to the commissions allowed him."

"Cora Peterson, formerly Cora Ray, daughter of Hester Ray, being interested in
the settlement of the estate of William Ray and entitled to receive 1/7 of the
entire amount of said estate appeals from the judgment of W.B. Banks, Clerk of
the Superior Court of Yancey County rendered in the above entitled cause on
October 22nd 1895, and assigns the following as grounds of error: The
settlement of W.H. Gardner appointed by the Court is erroneous.

"1st - In that it appears from said settlement that the interest of Cora Ray
in said estate on April 1st 1889 was more than the amount of the notes of Cora
Ray executed on said date for $2371.50 and Cora Ray is charged with interest
on notes to November 1st 1895 to the amount of $936.74, notwithstanding the
fact that her interest in the estate is in excess of the notes given for the
purchase of property belonging to the estate. 2nd - That no interest is
charged others of the heirs of William Ray on advancement made long since the
death of William Ray, now deceased. 3rd - That the estate of William ray is
charged with $2653.02 costs in four cases before the Clerk and in a
controversy over the will of the said William Ray together with attorneys fees
improperly allowed. That the estate... is in no way liable for attorney fees
when the attorneys were employed by some of the individual heirs at law. And
the estate is in no way liable for the costs in suits between the heirs. 4th -
That the commissioner W.H Gardner fails to charge himself with interest on
funds paid to him as commissioner and which he has not paid out to the heirs
at law."

"David M. Ray & wife, et al vs. H.A. Whittington and wife, et al} This cause
coming on to be heard on appeal from a judgment of the Clerk rendered October
22 1895. It is considered by the Court that the judgment by the Clerk be
overruled and set aside, and the commissioner, W.H. Gardner be required to
collect the amount due from the purchase money of the lands sold by him and
pay the amount to the Clerk who shall proceed according to law. The Clerk may
accept as cash receipts from the heirs for such amounts as they may clearly be
entitled to receive from the estate of William Ray. That said commissioner
shall accept from the heirs as purchases their receipts as cash for such
amounts as they Clerk may certify to, and to heirs as final settlements will
be entitled to. {Signed} Henry R. Bryson, Judge Presiding"

October 24 1895: "Summons for Relief} To the Sheriff of Yancey County --
Greeting: You are hereby commanded to summon E. Burton [Ray], Hannah Ray, N.M.
Anderson, N.M. Wilson for Margaret Wilson, C.W. Edwards for his heirs, Martha
H. & Cora Ray... to appear before the Judge of our Superior Court... on the
30th day of October 1895..."

January 14 1896: "D.M. Ray & wife, Burton Ray et al vs. H.A. Whittington &
wife et al}This cause coming on for settlement of the estate of William Ray,
deceased, before the Clerk this 14th day of January 1896. The following is the
amount of notes and the ten percent paid on day of sale on the 1st day of
April 1889: [details omitted]

"For Lot no. 1, J.G. Wilson $135; For Lot no. 2, Barnett Ray $695.25; Lot no.
3, Garrett D. Ray $913.33 1/3; Lot no. 5, G.D. Ray $900.00; Lot no. 6, C.R.
Byrd $801.00; Lot no. 7, Martha H. and Cora Ray $1, 185.75. [Subsequent notes,
plus interest, the total came to $10, 708.49.] May 6 1895, D.M. Rays purchase
Lot no. 4, $2,470.00. Less costs, disbursements &c, including will suit
$1,725.63. Plus interest on notes for 6 months to make the settlement date
April 1 1890, $139.50, Less other costs $70.00. Total advancements to the
heirs, $5, 679.89. Less amount set apart to pay interest to the heirs who
bought no land, $1,150.00. Subtotal $16,052.25. Lot no. 4, sold to N.M. Wilson
for $2,005.00. He paid 10% cash $200.50. May 6 1895, bought by Elizabeth Ray,
wife of D.M. Ray for $2,470.00. Seven heirs entitled. Amount set apart to pay
interest to the heirs who bought no land & commissions $1,500.00. Total Estate
$15,702.25. Amount due each heir $2,243.17"

Other items: (1) "Martha & Cora Ray, amount due from estate $2,243.17. Less
advanced by William Ray $100.00. Amount of their land purchase $2,514.78. Plus
interest to May 18 1896 $136.37. Amount due estate $506.98" (2) "E. Burton
Ray, amount due from estate $2,243.17. Less advanced by William Ray $814.00.
Interest to May 18 1896 $525.93. Total amount due $1,955.10" (3) "Polly
Edwards, amount due from estate $2,243.17. Less advanced by William Ray
$1,142.00. Interest to May 18 1896 $405.23. Total amount due $1,506.40" (4)
"D.M. ray & wife, amount due from estate $2,243.17. Less advanced by William
Ray $352.84. Interest to May 6 1895 $578.44. Total $2, 468.77. Less land
purchase $2,470.00. Amount due estate $1.23" (5) "N.M. Wilson & wife, amount
due from estate $2,243.17. Less advanced by William Ray $1,085.00. Interest to
May 18 1896 $426.20. Total due $1,584 37" (6) "Hannah Ray, wife of Barnett,
amount due from estate $2,243.17. Less advanced by William Ray $1,117.35. Less
amount of Land Purchase $1,473.90. Amount due estate $525.42" (7) "N.M.
Anderson & wife, amount due from estate $2,243.17. Less advanced by William
Ray $1,068.00. Less 3/4 of $1,175.17 to G.D. Ray $881.37. Interest on $293.80
from April 1 1890 to May 18 1896 $108.11. Total due $401.91" (8) "G.D. Ray, 2
notes Lot no. 3 with interest added for 12 months, $1, 938.16. Less credit by
3/4 Anderson heirs $881.37. Interest to May 18 1896 $388.86. Less principal
and interest on 2 notes for lot no. 5, May 18 1896 $2,570.40. Total due from
G.D. Ray $4,016.05"

February 14 1896: "D.M. Ray & Wife, Burton Ray et al vs. H.A. Whittington &
wife et al, Heirs at Law of William Ray} Judgment. This case having been
referred to his Honor Henry R. Bryson, Judge Presiding at Fall Term 1895 with
a decree directing how the settlement should be made between the heirs at law
of William Ray, deceased. And in obedience to said decree, I W.B. Banks...
have made the foregoing settlement between the heirs of William Ray, and it is
the Judgment of the court that the foregoing settlement be and is hereby in
all things confirmed, given under my hand and seal, this February the 14 1896.
W.B. Banks, CSC... We the undersigned heirs at law of William Ray do hereby
certify that we have examined the foregoing settlement made by W.B. Banks,
CSC, and do hereby consent and agree that the said settlement be in all things
confirmed in witness whereof we have hereunto set our hands this the 14th day
of February 1896... [not signed]"

March 20 1896: "To Hannah Ray, Principal, and C.W. Edwards and W. Hensley,
Sureties, Greeting. You are hereby notified as Administratrix of your husband
Barnett Ray, deceased, and as one of the distributees of William Ray,
deceased, that unless you pay to me the balance due me at the sale by me as
commissioner as in above entitled case, I will on the 1st Monday in June make
a motion before the Clerk of this Court for judgment against you for the sum
of one thousand three hundred and ninety dollars and 50 cents & interest, as
the Administratrix of your deceased husband Barnett Ray for the amount of
purchase money which motion you are hereby notified will be made... on the 1st
Monday in June proximo and unless you show cause to the contrary on said day,
the commissioner will take judgment against you for the land bought by your
deceased husband and ask for a resale of the same as provided by law. {Signed}
W.H. Gardner, Commissioner, May 20th 1896." Endorsed, "Service accepted this
May 20 1896, Hannah 'x' Ray" 

May 21 1896: "To D.M. Ray & Wife, Greeting. You are hereby notified that
unless you pay to me as commissioner the sum of two thousand four hundred and
seventy dollars the amount of your bid at the sale made by me and accumulated
interest on or before the 15th day of June 1896, I will move the Court on said
day for judgment against you for a resale of the land bought by you on said
day. Unless you show to the contrary said judgment will be entered as above
stated. May 21st 1896. {Signed} W.H. Gardner, Commissioner." Endorsed, "Served
June the 2nd 1896. J.S. Huskins, Sheriff"

"To Martha H. and Cora Ray, Principal, and C.R. Byrd, Surety, Greeting. You
are hereby notified that unless you pay to me as commissioner the sum of two
thousand three hundred and seventy one dollars & fifty cents, the amount of
your bid at the sale made by me and accumulated interest on or before the 15th
day of June 1896, I will move the Court on said day for judgment against you
for a resale of the land bought by you on said day. Unless you show to the
contrary said judgment will be entered as above stated. May 21st 1896.
{Signed} W.H. Gardner, Commissioner." Endorsed, "Served June the 2nd 1896.
J.S. Huskins, Sheriff"

"To G.D., Principal, and J.C. Peterson, Surety, Greeting. You are hereby
notified that unless you pay to me as commissioner the sum of three thousand
six hundred and twenty seven dollars, the amount of your bid at the sale made
by me and accumulated interest on or before the 15th day of June 1896, I will
move the Court on said day for judgment against you for a resale of the land
bought by you on said day. Unless you show to the contrary said judgment will
be entered as above stated. May 21st 1896. {Signed} W.H. Gardner,
Commissioner." Endorsed, "Served June the 2nd 1896. J.S. Huskins, Sheriff"

May 21 1896: "To D.M. Ray & Wife, Greeting. You are hereby notified that
unless you pay to me as commissioner the sum of two thousand four hundred and
seventy dollars the amount of your bid at the sale made by me and accumulated
interest on or before the 15th day of June 1896, I will move the Court on said
day for judgment against you for a resale of the land bought by you on said
day. Unless you show to the contrary said judgment will be entered as above
stated. May 21st 1896. {Signed} W.H. Gardner, Commissioner." Endorsed, "Served
June the 2nd 1896. J.S. Huskins, Sheriff"

"To Martha H. and Cora Ray, Principal, and C.R. Byrd, Surety, Greeting. You
are hereby notified that unless you pay to me as commissioner the sum of two
thousand three hundred and seventy one dollars & fifty cents, the amount of
your bid at the sale made by me and accumulated interest on or before the 15th
day of June 1896, I will move the Court on said day for judgment against you
for a resale of the land bought by you on said day. Unless you show to the
contrary said judgment will be entered as above stated. May 21st 1896.
{Signed} W.H. Gardner, Commissioner." Endorsed, "Served June the 2nd 1896.
J.S. Huskins, Sheriff"

"To G.D., Principal, and J.C. Peterson, Surety, Greeting. You are hereby
notified that unless you pay to me as commissioner the sum of three thousand
six hundred and twenty seven dollars, the amount of your bid at the sale made
by me and accumulated interest on or before the 15th day of June 1896, I will
move the Court on said day for judgment against you for a resale of the land
bought by you on said day. Unless you show to the contrary said judgment will
be entered as above stated. May 21st 1896. {Signed} W.H. Gardner,
Commissioner." Endorsed, "Served June the 2nd 1896. J.S. Huskins, Sheriff"

October 28 1896: "Order for Referee} This cause coming on to be heard upon the
appeal of Cora Peterson, G.D. Ray & Hannah Ray from the judgment of the Clerk
of the Superior Court rendered on the 28th day of October 1896. It is
considered by the Court that the said judgment be confirmed in all things,
except the action of the Clerk in charging the heirs at law of William Ray
interest on amount due by them as the purchase money for land bid off at the
sale by W.H. Gardner, except when such amounts are due by said heirs or any of
them is an excuse of the interest of such heir or heirs in the estate of
William Ray at the time of the sale of real estate by W.H. Gardner in this
case, and except in the further action of the Clerk in setting apart $500.00
for the purpose as he stated in a statement attached to said judgment to pay
interest to the heirs who bought no land & commissions. And further except the
failure of the clerk to charge those of the heirs of William Ray who were
advanced their credits with interest on such advancements from the time they
were made. That this cause is referred to P.A. Cummings to take an account and
report fully the interest of each of the heirs in the estate... at the time of
the sale... of the real estate of said decedent, charging each of the heirs
with any advancement that they may have received from the advancement. Further
to ascertain & report whether such of the heirs advanced were chargeable with
interest on this advancement from the time they were made, so charging the
heirs or not as he finds this matter of land and report fully the amounts due
by such of the heirs... {Signed} W.L. Norwood, Judge Presiding, Holding Court
in the 10th Judicial District"

"Exceptions} G.D. Ray, one of the parties to this action excepts to the report
of the Clerk in this case filed. (1) Because he failed to allow said Ray
credit on the day of sale for the three-fourths interest of N.M. Anderson
amounting to $887, making said Ray pay interest on said sum for one year. (2)
That said Clerk deducted moneys out of said fund where he should not have don
so for the purpose of paying to the heirs who did not purchase."

"From the judgment of W.B. Banks... rendered on the 28th day of October 1896,
Cora Peterson appeals to the Superior Court at this time and assigns as
grounds of error the following, to wit:

"(1) That the clerk charged the said parties with interest on the amount bid
by them for lands of the estate from the time of such purchase, without first
deducting an amount equal to their interest in the estate. (2) Because the
Clerk in calculating and stating the total value of the estate of William Ray
at the time he undertook to ascertain the value of each share, improperly
deducted $1,500 for the purpose he states to pay interest to the heirs who
bought no land and commission. (3) Because the Clerk fails to charge those of
the heirs... who were advanced by their _?_ with interest on such advancements
from the heirs they never received."

"W.H. Gardner except to the report of W.B. Banks, CSC in the above action for
that he allows the commissioner only $205.00, when this commissioner believes
he should be allowed more in case of extra trouble and exceeding expense.
{Signed} W.H. Gardner"

"This cause coming on to be heard and the same being heard, it is ordered and
adjudged that the report herein set forth be and the same is the judgment of
this court. It is further adjudged by the Court that time be allowed until the
Fall Term 1896 of the Superior Court of this County for the parties to appeal
from this judgment and order and this Court reserves the right at any time
[to] correct any mistake in the said judgment while the matter is pending in
this Court. It is further adjudged & decreed by the court that so soon as the
funds are paid into court that the Clerk of said court proceed to disburse
them according to the report herein filed and any surplus, if any there be, be
disbursed among the heirs per strife. And it is further ordered and adjudged
by the court that the commissioner W.H. Gardner proceed to collect and pay
into court all money due the estate of William Ray, deceased, instantly and
that the clerk be allowed a reasonable fee for disbursement. Given under my
hand & seal this October 28 1896. W.B. Banks, CSC"

"At Chambers, Fall Term Superior Court, Yancey County} This cause coming on to
be heard at the present term of this Court before his Honor W.L. Norwood,
Judge Presiding, upon the appeal of W.H. Gardner... for partitioning from the
allowance made him by the Clerk... And it appearing to the Court that [he] has
been at a great expense and extra trouble in the sale of lands and the
collection of the notes for the same. It is now on motion... for cause,
ordered and adjudged by the court that W.H. Gardner... be and he is hereby
allowed a commission of five percent upon the gross sales of all the lands
sold by him... and upon the interest on the same up to the time said notes
were collected. {Signed} W.L. Norwood, Judge"

December 21 1896: "On Appeal} This was an action originally commenced before
the Clerk for sale and partition of the estate of Wm. Ray deceased, all the
heirs at law... being parties to the proceedings. It was agreed by all the
parties thereto that in said proceedings there should be a complete settlement
of the interest of each heir in estate, and that the heirs who had been
advanced by William Ray in his lifetime should account for such advancement as
in law and equity they are required to do, and that such of the heirs as are
indebted to the estate by purchase of the land at the sale... in this cause
[by] W.H. Gardner, should be entitled to a credit on such indebtedness equal
to their interest in the said estate. This cause had several times been heard
before the Clerk from whom then won appeals to the Superior Court, the last
judgment of the clerk was signed on October 28th 1896 and from this
judgment... the following parties appealed to the Superior Court, to wit, G.D.
Ray and Cora Peterson, and there was also an appeal by W.H. Gardner the
commissioner appointed to sell the land, from the order of the Clerk fixing
his allowance as said commissioner as provided by the statute and in refusing
to allow more than is therein prescribed. On the grounds of the appeal of
these various parties from said judgment of the Clerk are fully set out in
these writings... The matter involved in said appeals from said judgments of
the clerk dated October 28 1896, came on for hearing before His Honor W.L.
Norwood, Judged, at Fall Term 1896 of Yancey Superior Court, whereupon he
signed... judgments... And from the said judgments above excepted to by G.D.
Ray, Hannah Ray, E. Burton Ray & Cora Peterson, four of the parties to this
action, the said Rays and Peterson appeals to the Supreme Court. It is
admitted in this case and issued as a fact, that commissions on the
advancements coming into the hands of W.H. Gardner as fixed by Section 1910 of
the 1st Volume of Code would amount to $205.00. Notice of appeal is waived.
Appeal bond fixed at $205.00. It is agreed by counsel for all parties that
appellants shall have 30 days to make... an appeal and appealee shall have 60
days thereafter to answer..."
June 7 1897: "This cause coming on to be heard before His Honor S.B. Adams
Judge. It is made to appear to the Court as follows, to wit: That prior to
Fall Term 1896 of the Superior Court of Yancey County, there was a judgment of
the Clerk... which, among other things, adjudged that the commissioner... W.H.
Gardner, who was appointed to sell certain lands and partition the proceeds,
was entitled to the amount for this services as provided by the code. It is
further made to appear... that when the case was heard, upon appeal from the
Clerk at Fall term 1896... there was a discussion of Counsel in open court and
a judgment rendered confirming the judgments... in certain respects and over-
ruling it in certain respects. That the report was affirmed as to the
allowance of W.H. Gardner commissioner without specifically mentioning said
item, but by the language "the report is in all things confirmed except",
etc., and the said allowance is not within the exceptions. It is further made
to appear... that some time during the week of the Superior Court... His Honor
Judge Norwood signed another judgment at chambers reversing the ruling of the
Clerk allowing the commissioner the amount of commissions allowed by the
Clerk, and allowed for his services 5 percent of all amounts coming into his
hands, whether principal or interest.

"This last mentioned judgment was signed at chambers in the presence of some
of the attorneys for some of the parties in interest, but some of the parties
in interest in this case were not present in person or by attorney and had no
notice that any such judgment would be granted or applied for. It is further
made to appear... that the parties and their attorneys who were not so
notified had no notice of such order until after the Court had adjourned. It
further appears... that some of the parties who were represented by attorney
at the time said judgment was signed and who objected to the same and appealed
content that an agreement was had by which the attorneys were to have 30 days
to serve case on appeal from the last mentioned judgment, and that within the
30 days one of the attorneys for W.H. Gardner stated he had no recollection of
such agreement, and because of the failure of attorney to recollect such
agreement, if any there was, there was no case on appeal served. And it
further appearing from the statement of the counsel who made the agreement on
behalf of the appellant that such agreement was made, and by statement of
counsel for Gardner that he did not remember such agreement. The Court seeing
that the two judgments of Judge Norwood above mentioned are in conflict and
contradictory, the court being of the opinion that any order allowing 5
percent to a commissioner appointed to sell land for partition is clearly
erroneous, the court, upon motion of the attorney for Cora Peterson, who was
not represented at the time of the judgment allowing W.H. Gardner 5 percent
was signed, considers that the judgment of the Court confirming the judgment
of the Clerk and allowing the Commissioner the amount of commissions provided
by the statute is the judgment which should control. It is therefore
considered that W.H. Gardner be allowed as commissions for his services the
sum of $205.00 the amount allowed by the Clerk in his judgment and which was
affirmed by His Honor Judge Norwood. It is further ordered that this cause be
referred to P.A. Cummings, Esquire, to report to next term of court as ordered
by the order of His Honor Judge Norwood at last term of the Court."

"The above judgment was rendered in open Court in the presence of Counsel for
all parties, and the Court instructed Counsel for the parties in whose favor
judgment was rendered to reduce the judgment then rendered in writing, that
the Court might sign same. Thereupon said judgment was reduced to writing, and
at the request of Mr. J.S. Adams, attorney for W.H. Gardner, the judgment was
handed to the attorney for his inspection, who kept same in his possession
until after the adjournment of Court for the Term, when the matter was called
to the Court's attention and the Court stated that the judgment has been
rendered in term, and offered to sign said judgment. When matter was called to
the Judge's attention after the adjournment of Court, Mr. J.S. Adams...
expressed his willingness to have it signed at that time, but his associate
counsel declined to give his consent, and consent was therefore withheld. At
the request of Counsel in whose favor the judgment was rendered as a matter of
fairness and justice the foregoing statement is made by me and the Clerk of
Yancey Superior Court is directed to file this with the papers in the case.
June 7 1897 {Signed} Spencer B. Adams, Judge Presiding"

November 24 1897: "Petition for Partition of Estate of Wm. Ray} This cause
having been referred to the undersigned [signature missing] by his Honor W.L.
Norwood, Judge of the Superior Court and notice having been given to all the
parties, I proceeded on the 24th day of November 1897, at Burnsville, to hear
the same. Some of the parties were present in person and others by attorney.
It was agreed that no other testimony was necessary than the record in the
cause, including the report made by W.B. Banks, Clerk, on October 28 1896.
After a careful investigation of the whole record, I beg leave to submit the
following report:

"(1) I find as a fact that all the heirs at law of Wm. Ray, deceased, were
made advancements during the lifetime of their ancestor, and have been paid in
full and claim no interest in the estate... except the following: Barnett Ray
& wife Hannah, M.H. Ray & Cora Peterson, N.M. Wilson & wife, E. Burton Ray,
Polly Edwards, N.M. Anderson & wife, and D.M. Ray & wife Elizabeth,
representing seven shares. (2) I find... that the heirs have been advanced the
following sums by their ancestor: Barnett & Hannah Ray $1,117.35; Martha Ray &
Cora Peterson $100.00; N.M. Wilson & wife $1,085.00; D.M. Ray & wife $352.84;
E. Burton Ray $814.00; Polly Edwards $1,142.00; N.M. Anderson & wife
$1,068.00. Making a total of $5,679.19. (3) I find... that the land sold by
W.H. Gardner... on the 1st day of April 1889 was sold to the following persons
and at the price named: Lot No. 1 J.G. Wilson $300.00; Lot No. 2 Barnett Ray
$1,545.00; Lot No. 3 G.D. Ray $2,030.00; Lot No. 4 was first sold to N.M.
Wilson for $2,005... It was afterwards sold and D.M. Ray bought for $2,470.00.
Lot No. 5 G.D. Ray $2,000.00; Lot No. 6 C.R. Byrd $1,780.00; Lot No. 7 Martha
& Cora Ray $2,635.00. Making a total of $12,960.50.

"(4) I find from the foregoing... that the estate to be distributed consists
of sale of lands $12,960.50; Advancements $5,679.19, making a total of
$18.639.69. (5) Judge Norwood's order contains these words, "The fees charged
by Clerks of Superior Court and Attorneys in the cause be allowed." I
therefore find as a fact that the following are proper charges against the
fund to be distributed... $2,078.34... (6) Leaving net balance of $16,561.35.
This amount distributed among them, making each share of $2,635.91. (7) I find
as a fact that the settlement of the amount due for purchase money by each of
the heirs who purchased, and other purchasers, and the settlement with each of
the heirs for their distributive share is as follows: [See record of January
14 1896 for the distributions]

January 10 1898: "For value received, I hereby transfer, assign and set over
to G.D. Ray or order, my fee as allowed by judgment of Judge Norwood on a
report of the Clerk... and as found by P.A. Cummings, Esquire, amounting to
$60.00 and being in the matter of the settlement of the estate of William Ray,
deceased, and which said judgment declares for amount to be paid out of
estate. W.H. Gardner"

May 23 1898: Report of P.A. Cummings "... Total amount due heirs by estate $7,
491.93... Conclusions of Law:

"(1) I find as a conclusion of law, that the heirs at law are not charged with
interest on advancements. (2) I find as a conclusion of law, that the heirs at
law are entitled to have their distributive share, respectively, entitled upon
their purchases of land as of the date of sale of land for partition. (3) I
find... that the commissioner appointed to sell the lands for partition is not
entitled to any extra compensation beyond that allowed by statute, Section
1910 of The Code. (4) I find... that J.G. Wilson is indebted to the estate of
William Ray, deceased, in the sum of Three hundred and twenty & 73/- dollars,
with interest upon the sum of Two hundred and seventy dollars, from May 23rd
1898 until paid and that the same is a lien upon Lot No. 1 sold by the
commissioner. (5) I find... that D.M. Ray and wife, Elizabeth Ray are indebted
to the estate... in the sum of Five hundred and forty & 32/- dollars, with
interest on Four hundred and fifty-six & 93/- dollars, from May 23 1898 until
paid and that the same is a lien on Lot No. 4, sold by the commissioner. (6) I
find... that G.D. Ray is indebted to the estate... in the sum of Twenty eight
hundred and twenty eight & 80/- dollars, with interest on the sum of Eighteen
hundred and twenty seven dollars from May 23 1898 until paid and the same is a
lien upon Lot No. 3... (7) I find... that G.D. Ray is indebted to the
estate... in the sum of Twelve hundred and seventy nine & 79/- dollars, with
interest on the sum of Eight hundred and twenty six & 56/- dollars from May
23rd 1898... the same is a lien upon Lot No. 5... (8) I find... that the
estate of William Ray, deceased, is indebted to Hannah Ray in the sum of Four
hundred and fifty-six & 00/- dollars. (9) I find... that the estate of William
Ray... is indebted to Martha Ray & Cora Peterson in the sum of Two hundred and
twenty five & 71/- dollars. (10) I find... that the estate of William Ray...
is indebted to E. Burton Ray in the sum of Twenty three hundred and seventy
six & 12/100 dollars. (11) I find... that the estate... is indebted to Polly
Edwards in the sum of Eighteen hundred and seventy three & 42/- dollars. (12)
I find... that the estate... is indebted to N.M. Wilson in the sum of Nineteen
hundred and seventy nine & 20/- dollars. (13) I find... that the estate... is
indebted to N.M. Anderson in the sum of Four hundred and ninety six & 66/-
dollars. {Signed} Respectfully submitted, P.A. Cummings, Referee."

May 23 1898: "David M. Ray & wife, et al vs. H.A. Whittington and wife, et al}
In the Superior Court} Exceptions to Report of Referee P.A. Cummings in this
case filed the 29th of December 1897 for this:

"1st - That said referee made a mistake in the amount advanced to the said
D.M. Ray & wife, in that the referee states in his report that the amount
advanced to them was $352.84 when in fact the record shows that the only sum
advanced to said parties was the sum of $232.35. 2nd - For this that said
referee failed to compute and allow to D.M. Ray & wife interest on their
distributive share of the estate of William Ray (to wit) The sum of $2133
56/100 over and above all advancements, from the 1st day of April 1889, the
date of the 1st sale from which date referee declared the distributive share
due each heir to the date of the last sale of Lot No. 4, to wit, on the 6th
day of May 1895 making six years one month and five days the interest for
which time would amount to the sum of $780 52/10 which added to the amount of
their distributive share would make due them on the 6th day of May 1895, when
they became the purchasers of Lot No. 4 at the resale of the same the sum of
$2914 08/100, which would have left due these heirs after deducting the
purchase money for Lot No. 4 (to wit, the sum of $2470.00) the sum of $544.08
the interest on this sum from the 6th day of May 1895 to the 23rd day of May
1898 to $105.29, which would come due said D.M. Ray & wife to this date the
sum of $649.37. That said referee allowed to the heirs other than D.M. Ray &
wife interest on their distributive shares from the 1st day of April 1889."

May 28 1898: "W.H. Gardner... excepts to the report of P.A. Cummings as to
item in paragraph 5 of said report allowing... the sum of $205.64, and appears
on page 4 of said report.

"1st - For that the referee ignored and disregarded an order of court made
herein and signed by agreement before Judge L.L. Greene presiding at Fall Term
1897, ordering referee to set aside 5 percent of the sale fund to abide the
order of its distributions after motions entered to strike out the order of
Judge Norwood... said 5 percent. (2) That referee erred and exceeded his
authority in disregarding a judgment of court filed and taken in this cause in
that he proceeded to override said judgments and decided the law as appears in
conclusions of law No. 3 on page 6 of said report."

May 28 1898: "D.M. Ray and wife, Exceptions to Cummings Report} This cause
coming on to be heard at the Fall Term of Yancey County Superior Court before
His Honor A.L. Coble, Judge Presiding, upon the report of P.A. Cummings,
referee in this case, and the exceptions to the same, D.M. Ray & wife
Elizabeth Ray one of the distributees in this case. And it appearing to the
court that the referee in this case was in error in that he charged the
distributee with the sum of Three hundred and fifty two 84/100 dollars, when
the referee should only have charged the distributee with the sum of Two
hundred and thirty two 35/100 dollars, and it further appearing to the court
that the referee failed to allow to Elizabeth Ray on the sum of Twenty one
hundred and thirty three 56/100 dollars the interest as allowed to other
distributees in case, to wit, from the 1st day of April 1889 to 6th day of May
1895.

"It is now on motion of J.S. McElroy, Attorney for D.M. Ray and wife and by
consent of the attorneys who represent the other distributees in case, ordered
and adjudged that case be referred to W.B. Banks, Clerk of this Court to
correct the errors above set forth in this judgment and to reapportion the
amount of estate... in accordance with this correction... It is further
ordered... that the commissioner W.H. Gardner execute to the purchasers of the
land, who according to the report of P.A. Cummings referee, have paid for
their lands, deeds for each lands, as so appear to have been paid for.
{Signed} Albert L. Coble, Judge Presiding"

Spring Term 1899 [Not dated, but marked "#1"]: "D.M. Ray... vs. H.A.
Whittington... Judgment} This cause coming on to be heard upon the corrected
report of P.A. Cummings, Commissioner, the same having been referred to the
Clerk of Yancey Superior Court to make certain corrections, it is now by
consent of all parties adjudged, considered and decreed by the court that the
same be and it is hereby in all respects confirmed, except that it shall not
conflict with or in any way prejudice the claim of W.H. Gardner. It is not
intended that his claim shall in any way be dealt with or passed upon in this
decree. But in all other respects the corrected report is hereby confirmed and
W.H. Gardner is ordered to execute deeds on the purchases upon the payment of
the funds and said receipt to be due by them. {Signed} T.A. McNeill, Judge
Presiding"

[Not dated, but marked "#2"]: "This cause coming on to be heard upon the
motion of the parties plaintiff and defendants to set aside the Judgment and
ordered rendered and made by Judge Norwood at the Fall Term 1896, allowing the
Commissioner W.H. Gardner five per cent commission on the gross amount of the
purchase price of the lands sold by him under the decree rendered in this
cause and W.H. Gardner and the parties having agreed upon a compromise that
the commissions to be allowed to W.H. Gardner... shall be the sum of Five
hundred dollars. It is now adjudged and ordered that upon all settlements
between Gardner and the Clerk of this Court and the parties plaintiff and
defendant, W.H. Gardner shall be allowed to retain.. the sum of five hundred
dollars. T.A. McNeill, Judge Presiding"

March 11 1899: "The Clerk... shall pay to J.S. McElroy twenty five dollars of
any money that may be in your office due us from the estate of William Ray...
{Signed} D.M. Ray & wife Elizabeth Ray, by D.M. Ray"

April 26 1899: "Received of J. Bis Ray, Clerk of the Superior Court of Yancey
County by the hands of J.S. McElroy, fifty dollars on the part due Lodusky
Rice of the estate of William Ray, deceased, of which she is an heir and which
she has assigned to me. {Signed} H.L. Rice"

April 28 1899: "Cane River, N.C. [To:] Mr. J. Bis Ray, Clerk of the Superior
Court, Yancey County, N.C., you will please let C.L. McPeters have one hundred
and twenty two dollars & 10 cents in money from your office which is due me as
part of my estate from my father William Ray (deceased) and this shall be your
receipt for the same in final settlement. {Signed} Elizabeth 'x' Ray"

May 1 1899: "Burnsville, N.C. For value received we hereby transfer and assign
to G.D. Ray all of the amount due us from the estate of William Ray and due us
as heirs to said William Ray, deceased... Given under our hands and seals.
Z.P. Wilson {Seal} W.B. Wilson {Seal} Hiram Wilson {Seal} N.M. Wilson as
Guardian of J.M. Wilson {Seal}"

May 2 1899: "Burnsville, N.C. To W.H. Gardner, Commissioner. You will please
pay G.D. Ray or order $422.50 being so much an amount due to me as the
representative of John W. Edwards, Thomas Edwards & James Edwards, heirs at
law of Polly Edwards. {Signed} C.W. Edwards"

May 29 1899: "Received of W.H. Gardner... as follows: Order from D.M. Ray &
wife, $101.24; G.D. Ray $1,913.88; C.W. Edwards $422.50; N.M. Wilson $1,
319.38; E.A. Watson, attorney [for D.M. Ray], $60.00. {Signed} J. Bis Ray"

"Burnsville, N.C. To W.H. Gardner... You will please pay G.D. Ray or order one
hundred and one dollars and twenty four cents ($101.24) out of moneys coming
to us from the estate of William Ray. {Signed} D.M. Ray, Elizabeth Ray"

June 2 1899: On stationery: "G.D. Ray & Son, Dealers in General Merchandise.
Hats, Caps, Boots, Shoes, Dry Goods, Notions, Hardware, Groceries, Country
Produce, etc. Burnsville, N.C. June 2nd 1899. To the Clerk of the Superior
Court of Yancey County, N.C.: You will please pay to the order of G.D. Ray
$10.00 out of any moneys that you may have in your hands that is due me from
the estate of William Ray, deceased, as an heir of Polly Edwards, deceased.
Witness my hand & seal this 2nd day of June 1899. Martha 'x' King {Seal}.
Witness, C.W. Ray"

August 10 1899: "North Carolina. Yancey County} Affidavit of W.P. Bryant, as
to age of Thursa Bryant's children: This day personally appeared before me, J.
Bis Ray, CSC, W.P. Bryant, who being duly sworn deposes and says: That some 5
or 6 years ago he was appointed guardian by W.B. Banks, then CSC of Yancey
County, N.C., to the following named children, heirs of Thursa Bryant,
deceased, to wit:

"Loduska Bryant, age 22 years; Flora Bryant, age 18 years; Lizzie Bryant...
17; John Bryant... 15; Jeter Bryant... 13; Robert Bryant... 9; Willie
Bryant... 6. The ages given above are their ages as of today... in round
numbers. {Signed} W.P. Bryant"

October 26 1899: On stationery: "Ray's Hotel [now the Nu-Wray Inn] G.D. Ray,
Proprietor; 2,840 feet above the sea. Burnsville, N.C., D.M. Ray being duly
sworn says there was due him from W.H. Gardner as appears from the report of
commissioners as considered by J. Bis Ray the sum of two hundred and seventy
two 08/100 dollars, of which has been paid since said order... {Signed} D.M.
Ray"

October 27 1899: "Superior Court, Fall Term 1899. D.M. Ray & others vs. H.A.
Whittington} Motion to Attach W.H. Gardner, Commissioner, For Contempt. J.C.
Peterson, being duly sworn says, that in above cause said W.H. Gardner was
duly appointed commissioner to sell the lands of Wm. Ray, that upon full
reference the amounts in his hands arising from the sale of said lands have
been fixed and settled and determined and the said W.H. Gardner ordered to
execute deeds to the purchasers and pay over said moneys to those entitled to
the same as distributees, or into the Clerk's office for their use and
benefit. That affiants wife, Cora Peterson and M.H. Ray are distributees of
said estate and said moneys, all of which as shown by the record of said
proceedings is hereby referred to and asked to be taken as a part of this
affidavit, that there is found to be due said Cora Peterson & M.H. Ray from
said funds in the hands of W.H. Gardner, the sum of seventy two and 50/100
dollars.

"That a fund in the hands of Gardner has been allowed... to pay the costs of
the parties incurred in this proceeding and is in the hands of Gardner... and
has not... been so applied. That affiant has paid for his wife Cora Peterson
in costs... that should be repaid by Gardner out of said fund the sum of
twenty eight dollars. That as affiant is informed and believes, Gardner made
settlement with some of the distributees, but fails and refuses upon demand to
comply with the order of the Court and pay over to said affiant and his wife
Cora Peterson & M.H. Ray the above sums. Wherefore parties move the court to
attach to Gardner as for contempt and enforce the payment of sums due them.
{Signed} J.C. Peterson. Sworn to and subscribed... 27th day of October 1899"

"Superior Court, Fall Term 1899. D.M. Ray & others vs. H.A. Whittington}
Affidavit of W.M. Buckner. Rule for Contempt. W.M. Buckner being duly sworn
says that he adopts as his own the foregoing affidavit of J.C. Peterson as to
the proceeding and the duties and failure to perform said duties of W.H.
Gardner in this case and says, that the report of the referee as finally
amended and confirmed shows that there is due H[annah] L. Ray from said estate
and in the hands of W.H. Gardner the sum of three hundred and three and 96/100
dollars and that there is an order on file in the Clerk's Office in this cause
from said H.L. Ray, that said money coming to her shall be paid to affiant
W.M. Buckner. that there is due H.L. Ray certain moneys as complained by her
in Gardner's hands the amount of which affiant cannot ascertain. That W.H.
Gardner has failed at time of making this affidavit, and refused and still
fails and refuses to pay over said sum to H.L. Ray as affiant, as her
appointee an assignee after demand made. That affiant's grandmother H.L. Ray
bid off the tract of land at the sale of said lands by W.H. Gardner and the
purchase money was fully paid, settled and satisfied to Gardner, and said B.
Ray and H.L. Ray assigned their said interest, right and claim to affiant and
affiant sold said land to James Byrd. That Gardner makes no objections to
executing a deed on account of said assignments but recognizes the same and
says he will execute a deed to Byrd, but has failed to do so.

"Wherefore affiant prays that he be attached as for contempt and compelled by
the Court to pay over to affiant said sum of money and execute said deed and
pay the costs of this proceeding. {Signed} W.M. Buckner... this 27th day of
October 1899"

"Superior Court, Fall Term 1899. D.M. Ray & others vs. H.A. Whittington}
Motion for Contempt. W.H. Gardner, being duly sworn deposes & says in answer
to the motion to attach him for Contempt for disobedience of an order of Court
heretofore made, and in the affidavits filed herein alleged to have been made
as follows:

"(1) He admits he was appointed a commissioner as in said affidavit stated to
sell the lands belonging to the estate of William Ray, deceased, which order
is referred to and made part of this answer. (2) That D.M. Ray & wife, M.H.
Ray, and Barnett Ray and wife Hannah L., were heirs and distributees as the
decree will show and were entitled to such shares as the court ordered. (3)
That as such commissioner he made report to this Court of his sale, made under
order of Court, which is here referred to, as part of this affidavit. That
after the failure to pay on the part of one of the purchasers he was ordered
to resale one lot and make report. (4) That as such commissioner he was only
commanded to report sales to the Court, which he did... (5) That after several
delays at the last term of this court, an order was signed by consent of the
parties who represent the heirs and counsel for affiant allowing him the sum
of five hundred dollars in full of his fees and services as such commissioner.
(6) That after said sale this affiant was ordered to collect from those who
bid at the sale, & the lands having been sold in lots according to
attachment... on file & referred to as part of this answer. That at such sale,
several of the heirs and distributees became purchasers. That a decree
heretofore filed herein & directed this affiant to take receipts from such
purchasers in settlement for the amount bid by them is such sums as in said
decree named and that such receipts should be taken in settlement for the
purchase price of the land. (7) Affiant admits that he was ordered to collect
and make titles, but avers that he is willing and since said decree has been
read, to make title whenever the purchaser should pay & present this affiant
with affiants certificate of purchase issued to them, but avers his
unwillingness since he is under bond, to make any of these purchasers a deed
except upon surrender of his certificate of purchase. (8) That he admits he
has made deed to Cora Peterson & M.H. Ray since this motion was made, but
avers the reasons for not making said deed sooner is that J.C. Peterson,
husband of Cora Peterson, demanded that deed to be made to him & his wife Cora
whose _?_ while affiant knew that said Cora and _?_ M.H. Ray had paid from the
_?_ and the consent of M.H. Ray & his wife Cora not on said certificate
endorsed & that since entering this motion they have presented said
certificate of purchase and affiant has made deed to Cora Peterson & M.H. Ray,
the purchasers. (9) Replying to the refusal to make deed to James Bryant as
assignee of Buckner the assignee of Hannah Ray as in the affidavit of Buckner
alleges, he says, That more than 3 months ago he told Buckner who files an
affidavit, he was ready and willing to make deed at any time he presented him
with certificate of purchase duly transferred, and to who was transferred. And
affiant avers that as he _?_ his duty to the Court & his obligations to his
bonds, and the twenty thousand bond filed herein, he is required by the court
in full discharge of his bond to make deed..."

(10) That there are other purchasers whom he has not made deeds and who have
paid up for same, but only for the reason they have not called for same. (11)
Affiant further avers in answer to the allegations in the affidavits that any
sum was by decree of Court awarded or transferred to affiant to pay costs
herein is untrue. (12) That any allegations that there is any decree or report
filed herein showing that affiant was or has made any unwillingness by any
order of this Court, or report made to the Court, cannot be shown and is
therefore untrue. (13) Affiant avers these facts to be that: (a) He was
appointed commissioner. (b) He made sale. (c) He reported to the court as
required. (d) He was ordered to collect, make titles, and pay into court, and
this he has done. (14) Affiant further avers that he has faithfully performed
his duty, as commissioner and has paid to the Clerk of this Court the purchase
money for which the land was sold, or filed receipts from such purchasers as
are distributees in such amounts as by decree ordered to be so taken. Also the
five hundred dollars allowed to affiant as his commissions as before stated.
Wherefore this affiant asks to be discharged from this contempt and for his
costs in this motion incurred. Sworn to and subscribed before me October 27
1899. J. Bis Ray, CSC. {Signed} W.H. Gardner"

October 30 1899: "W.M. Buckner et al vs. W.H. Gardner, commissioner} J.F. Byrd
being duly sworn says that he is the holder of a certificate of purchase from
W.H. Gardner for one tract of land, said certificate being assigned to him by
Hannah Ray. That Gardner has told Byrd to present his certificate and he,
Gardner, was ready to execute to him a deed for said land. That he has now
produced the money. {Signed} J.F. Byrd... this 30 October 1899"

January 1 1900: "This agreement made & entered into this 1st day of January
1900 between Cordelia Peterson & J.W. Horton of the county of Yancey.
Witnesseth: That Cordelia Peterson has this day leased unto J.W. Horton for a
period of 12 months from date at the rental of $2.50, payments to be made
monthly, 2/3 in cash, 1/3 in trade, the premises known as the Nate Boon Ray
house and lot in the town of Burnsville, N.C., excepting the out house of two
rooms once occupied by N.B. Ray, and the said J.W. Horton is to keep the
premises in good repair as to fences, buildings, &c. Give under our hands and
seals the day and year above written. J.W. Horton {Seal} Cordelia Peterson
{Seal}"

May 18 1900: "D.M. Ray ... vs. H.A. Whittington ...} This cause coming on for
hearing upon the motion of J.C. & Cora Peterson, W.M. Buckner and D.M. Ray to
attach W.H. Gardner in above cause for contempt in not paying to them or into
Clerk's office for their use, the moneys found to be due them by the report of
P.A. Cummings as confirmed, and said motion having been continued by the
parties to be heard at this time and being heard, It is on motion ordered and
adjudged that the motion to attach W.H. Gardner be allowed, and that Gardner
is hereby ordered to pay into the Clerk's office for the parties, the sum of
one hundred and eight 90/100 dollars due D.M. Ray, less the pro rata share of
D.M. Ray in $295 balance commission allowed Gardner; the sum of seventy three
& 64/100 dollars due Cora Peterson and M.H. Ray less their pro rata share of
$295 balance of allowance; the sum of three hundred and three and 96/100
dollars due W.M. Buckner as assignee of H.L. Ray... less the pro rata share of
H.L. Ray of $295...

"That said money be paid by W.H. Gardner on or before the 1st day of November
1900. A capias will be issued by the Clerk of Superior Court of Yancey County
to the Sheriff of Yancey County for W.H. Gardner and he will be imprisoned in
the Court House jail of Yancey County from November 1st 1900 until the above
order is complied with by Gardner, that Gardner pay the costs of this contempt
proceeding. May 18 1900, Thomas J. Shaw, Judge Presiding"

Spring Term 1900: "It appearing to the court that there are no other orders or
matters needed in this case, it is ordered that this suit be taken from the
docket and that W.H. Gardner be discharged from liability and acquitted from
further performance... when the judgment against him at this term is paid.
Thomas J. Shaw, Judge Presiding (Minute Docket 314; Judgment Docket 2 / 254)"

"Judgment} This cause coming on to be heard before His Honor Thomas J. Shaw,
Judge, and it appearing to the Court by an inspection of the record herein
that after the confirmation of the report of P.A. Cummings in which an
allowance of $205.00 was awarded to W.H. Gardner as compensation for his
services by consent of all parties hereto, said allowance was fixed by a
judgment of Court at the sum of $500.00 and it further appearing that Gardner
and all the parties hereto have settled their distributive shares according to
the report of P.A. Cummings as amended and it further appearing by the
judgment awarding Gardner $500.00 leaves the sum of $295.00 which is due by
the distributees herein. It is now on motion of counsel for Gardner adjudged
that judgment be entered against the representation of Burton Ray for the
distributive share of Burton Ray in the $295.00 aforesaid, to wit: The sum of
$42.14 judgment is extended against Hannah L. Ray for $42.14, D.M. Ray & wife
Elizabeth Ray $42.14 and against the heirs at law of Margaret Wilson, to wit:
W.B. Wilson, Hiram Wilson, Zeb Wilson, N.M. Wilson as guardian of Monroe
Wilson, for $42.14, and against the heirs of Mary Edwards wife of C.W.
Edwards, to wit: John W. Edwards, James Edwards, Thomas Edwards and Martha
King, wife of W.J. King for $42.14, and against G.D. Ray assignee of the
fourth interest of the share of Thursa Anderson, deceased, to wit, $31.60, and
against W.F. Bryant guardian of the heirs of Thursa Bryant, deceased, $10.53.

"It is further ordered and adjudged by the court that the $42.14 herein
adjudged due and owing by D.M. Ray & wife shall be applied by the clerk of
this court as a credit on the judgment rendered at this term of this court...
against Gardner, and that the $42.14 herein adjudged owing by Cora Peterson
shall be applied by the Clerk of this Court as a credit on the payment needed
at this term of the court, in favor of Cora Peterson and against Gardner. And
the $42.14 herein adjudged due and owing by H.L. Ray shall be applied by the
Clerk... as a credit... in favor of H.L. Ray and against Gardner. And when the
Clerk of this Court so applies said credits to D.M. Ray & wife, Cora Peterson
and Hannah L. Ray, shall be discharged from the judgment rendered... Thomas J.
Shaw, Judge Presiding" (Minute Docket 315; Judgment Docket 2/222)

August 19 1900: "Received of J. Bis Ray, CSC of Yancey County, N.C. two
hundred and ninety eight and 70/100 dollars money due me from the estate of
W.M. Ray deceased, as assigned to me by Jim, Will and Tom Edwards as heirs of
Polly Edwards, deceased. {Signed} C.W. Edwards"

September 15 1900: "In the Superior Court} To W.H. Gardner, Receiver: You will
take notice that a motion will be made before his Honor the Judge holding the
Superior Court for Yancey County at Burnsville, N.C. on October 15 1900, to
have you attached for contempt for your failure to pay over the money due to
Martha King and husband and C.W. Edwards and wife, as found to be due by
Cummings in his report filed in this cause. Of this you will take due notice."
Endorsed, "Served by leaving a copy of within notice to within named W.H.
Gardner, this October 5 1900. John Hutchins, Deputy Sheriff"

September 25 1900: "D.M. Ray... vs. H.A. Whittington... In Superior Court.
Notice} TO J.G. Wilson, J.W. Burton, A.J. Burton, Jule A. Abernathy, J.W.
Hurst and [blank] Moore, executrix of W.M. Moore, deceased. You will take
notice that a motion will be made before his Honor the Judge holding the
Superior Court for Yancey County, at Burnsville, N.C., on the 15th day of
October 1900 to have you made a party in the above entitled cause and to
obtain peremptory judgment against you and each of you as sureties for W.H.
Gardner, Receiver, because of his failure to make payment to Martha King, wife
of W.J. King and Mr. C.W. Edwards and wife, as found to be due by Cummings in
his report in above entitled cause. Of this you will take due notice. This
September 25 1900." Endorsed, "Served by leaving copy of within notice to each
of the parties herein named. October 5th 1900. John Hutchins, Deputy Sheriff"

October 6 1900: "D.M. Ray... vs. H.A. Whittington...} This cause coming on to
be heard before His Honor W.B. Councill, Judge, upon motions by C.W. Edwards &
wife, W.J. King & wife (representing Polly Edwards) which motions as follows:

"1st - To attach W.H. Gardner for contempt of court for failure to pay over to
the movers in this case representing the share of Polly Edwards the money
found to be due her by the report of P.A. Cummings as consented by J. Bis Ray,
to wit: Seventeen hundred & twenty one 35/100 dollars. 2nd - For judgment
against the bondsmen of W.H. Gardner for said sum.

"After hearing arguments of counsel and considering the papers in this case,
it is considered by the Court that W.H. Gardner is bound by report of P.A.
Cummings as consented by J. Bis Ray, as appears from said report & he is
estoppled to deny that at the date of the confirmation of same it was correct.
It is further ordered & adjudged that J. Bis Ray take an account of all the
disbursements made & money paid by Gardner since the coming in of said report
of Cummings and the application of such payments and report to the next term
of this court an itemized statement of his findings. Either party to this
proceeding is allowed to file objections to any of such items. The above
motions are therefore continued to await the... said report. The cost of this
action to be born equally by the parties. It is further ordered by the court
that Gardner be allowed to file answer in contempt proceedings. {Signed} W.B.
Councill, Judge Presiding" (Judgment Docket 2/245). "W.H. Gardner objects to
the foregoing judgment & order of reference... and appeals to the Superior
Court"

"C.W. Edwards and W.J. King being duly sworn in obedience in this motion to
attach W.H. Gardner as for contempt, to say: That they refer to the record in
this cause and as to that it be taken as part of this affidavit and especially
into amended report of P.A. Cummings the exceptions of W.H. Gardner entered
into judgment and decree confirming the same. That it appears from amended
report as confirmed that there was in the hands of W.H. Gardner and due to the
estate of Polly Edwards $1,721.38. That C.W. Edwards represents the facts on
three of the four children, and W.J. King his wife the remaining child. That
nothing whatever has been paid Mrs. W.J. King on her one fourth of said amount
though the same has often been demanded of W.H. Gardner. That there has been
paid on the other 3/4 shares to C.W. Edwards by W.H. Gardner by a note of
Edwards in $700, for which he holds receipts, leaving $500 (about) still due
and unpaid and which Gardner fails and refuses to pay though often demanded.

"That as affiants are informed & believe after an order was made on full
hearing in open court at law attaching W.H. Gardner as for contempt in not
paying to Cora Peterson & Buckner certain sums due to them, and order was
signed about the time of adjournment of court and after the counsel making
motion had left the court, giving judgments against the heirs & distributees
and in favor of W.H. Gardner for certain sums, without any notice or process
to said parties, and also a judgment that no further orders or motions wee
needed in this cause, that it go off the docket & that Gardner be discharged
from further liability after his paying Buckner & Peterson. That these
affiants were surprised at this time to find that such orders had been made &
had no knowledge or notice of the same until this term. That they are advised
that said case wasn't in the docket for the purpose of said motion of Buckner
& Peterson and for Gardner to pay said amount. That all interest of the
parties had been nulled by the confirmation of report."

May 16 1901: "Superior Court. Spring Term 1901. David M. Ray... vs. H.A.
Whittington...} This cause coming on to be heard before His Honor E.W.
Timberlake, Judge presiding, upon the report of the Clerk of the Court as
Referee, and the exceptions thereto filed by the heirs at law of Polly
Edwards, deceased, and the same being considered, it is ordered and adjudged
that the report be... confirmed in all respects; it is further ordered that
the referee be allowed the sum of twenty five dollars in payment of his
services herein. It is further ordered that the case for contempt herein
against W.H. Gardner, Commissioner, be dismissed. {Signed} E.W. Timberlake"

Footnote: "In this case the representatives of the share of Polly Edwards,
C.W. Edwards & Martha King except to the judgment of the court signed by
Honorable E.W. Timberlake, Judge, and for his failure to sustain their
exceptions to the report of J. Bis Ray filed May 16 1901, and appeal to the
Supreme Court. Notice of appeal waived. Bond fixed at $25.00. Appellant
allowed until next term of this court to send case an appeal. {Signed} E.W.
Timberlake" (Minute Docket 416, Judgment Docket 257)

May 18 1901: "Superior Court, Spring Term 1901} W.H. Gardner, Commissioner,
answering the motion to attach him for contempt of court for failure to pay
off certain heirs of William Ray, deceased, says he has endeavored to always
comply with all orders and decrees made by the court in the action entitled
D.M. Ray et al vs. H.A. Whittington et al. That as commissioner, he was
required to give bond and his bond required him to settle with the Clerk of
the Superior Court. That as he is advised and believes, it was no part of the
duty to pay or settle with any of the heirs of said William Ray, deceased.
That he has had many settlements with the Clerk of this Court, the present
Clerk and other Clerks, and that he has always paid the amounts found due by
said Clerks and has held himself ready to pay all just decrees. That upon a
settlement of the estate of William Ray, this affiant is informed and believes
that he has paid out not less than $1,774.07 more money than ever came into
his hands as commissioner and more than all the notes & interest on the same.
That he feels that as commissioner, being held by bond, to pay over to the
Clerk of the Court the amount coming into his hands that he should not be
liable to pay anything more than all sums coming into his hands, less his
commissions, which by agreement of all parties has been adjudged to be
$500.00.

"That at Spring Term of this Court upon hearing the facts in this case, His
Honor Judge Shaw signed judgment discharging this affiant as Commissioner from
further liability as commissioner upon the payment of certain sums found then
due by this affiant, all of which has been fully paid by said Commissioner.
That as this affiant is advised and believes the amount due by the purchasers
of lands of the sale of William Ray by Gardner and the only sum which this
affiant is chargeable with is a great deal less than the amounts which are due
by the heirs and amounts coming to heirs from sale. That as an instance of
such disparagement there was paid on day of sale 10% of the purchase price of
said lands and this affiant is informed and... due to 6% interest on same...
and that a deficit of $894.80 was caused in this way.... And he does not feel
bound by law or equity to make good this deficit. Therefore he asks to be
discharged from said rule. {Signed} W.H. Gardner. Sworn to and subscribed
before me this 18th day of May 1901. {Signed} J. Bis Ray, CSC"

May 23 1901: "David M. Ray... vs. H.A. Whittington...} The heirs at law and
assignees and representatives of Polly Edwards, to wit: W.J. King & wife
Martha, and C.W. Edwards, except to the report of J. Bis Ray, Referee
appointed by the order of Honor W.B. Councill, Judge at Fall Term 1900 of the
Superior Court of Yancey County, upon the following grounds, to wit:

"1st - The report states an account of other matters than those referred to
said referee by Judge Councill in that referee after finding that the amount
now due to the heirs of Polly Edwards or their assignees under the report of
P.A. Cummings as heretofore corrected by J. Bis Ray is eight hundred & five
66/100 dollars, after allowing W.H. Gardner all credits, a statement of
account due other heirs in the amount of the estate of William Ray; amount
chargeable to W.H. Gardner, and the amount that came into the hands of Gardner
and interest on the fund; what is styled in his report as a reconciliation,
that is to say the parties except to all of the report as being unauthorized
and outside of the scope of the reference to J. Bis Ray by Judge Councill
which is after the sentence in said report "Balance due her (Polly Edwards)
$805.66. 2nd - The receipts exhibited by Gardner to J. Bis Ray numbered 1-7,
9-25 because they and each of them are for payments to attorneys of Gardner
for services rendered him in resisting the efforts of the heirs to enforce
payment of money due them, and for payments to the Clerk of this Court for
money due other heirs and parties than those excepting to this report. 3rd -
The referee failed to close his report when he had found the amount due to
Polly Edwards on those entitled to her estate to be $805.66. The said parties
excepting move for judgment against W.H. Gardner and his bonds for $805.66,
and that the rule against W.H. Gardner for failure to pay such sums so found
to be due by the commissioning report, the J. Bis Ray report and the various
judgments of this court be enforced. This May 23 1901"

June 18 1901: "David M. Ray... vs. H.A. Whittington...} This was a proceeding
by the heirs at law of William Ray for the sale of lands of William Ray and
partition of the proceeds of such sale among the heirs. The proceeding was
commenced on (the Clerk will put in date). On (Clerk will insert date) W.H.
Gardner was appointed Commissioner to make sale of said land by the following
order (The Clerk will here copy the order in full) and gave bond as follows
(Clerk will copy bond). W.H. Gardner sold said lands as commissioner and held
the proceeds it being the only and entire estate of William Ray, deceased.
There was an order of reference by Judge W.L. Norwood at [blank] Term
189[blank] of Yancey Superior Court, to P.A. Cummings, Esquire, referee. The
order of reference is as follows: (The Clerk will here copy order of
reference). P.A. Cummings reported to the court fully at Spring Term 1898 of
Yancey Superior Court, and upon exceptions being filed, the said report was
referred to J. Bis Ray for correction and was corrected and the corrections
reported to the Superior Court of Yancey County at [blank] Term [blank]
thereon. The following exceptions were filed to the said report of P.A.
Cummings by W.H. Gardner Commissioner (the Clerk will here copy the said
exceptions in full).

"Also the following exceptions were filed by the other parties to the report
of Cummings upon which it was referred to J. Bis Ray for correction as
aforesaid (Clerk will here copy exceptions). The report of P.A. Cummings as
corrected found that all the estate of William Ray was in the hands of W.H.
Gardner and that aid estate in hands of Gardner was indebted to the various
heirs in amounts showed in said report. The following is the corrected report
of P.A. Cummings (The Clerk will copy in full the corrected report). After
filing said exceptions by W.H. Gardner, Commissioner, to the report of P.A.
Cummings, and before the Spring Term, 1900, of the Yancey County Superior
Court, the following orders were made (the Clerk will here copy each order
signed and minuted of the court in this case in the order in which the same
were made including the statement by Judge Adams on file in the papers in the
case). There was a motion by certain of the parties thereto, before Shaw,
Judge at Spring Term, 1900, of Yancey Superior Court, for judgment against
W.H. Gardner, for certain sums found due by said report, and to attach said
Gardner for contempt.

"The affidavits filed and orders made at said Term are as follows: (The Clerk
will here copy affidavits, orders and minutes in this cause made at Spring
Term, 1900, in the order in which the same were made). There was a motion
heard before Judge Councill at Fall Term, 1900, of Yancey Superior Court, as
follows: (the Clerk will here copy fully the notices, motions and affidavits
upon which the motion before Judge Councill was based.) The following order
was then made by Judge Councill and the case was referred to J. Bis Ray,
referee (The Clerk will here copy fully the order of Judge Councill of
reference and all orders made by him at said term.) The said referee reported
to Spring Term, 1901, of the Superior Court of Yancey County and his report
was as follows: (Clerk will here copy that report). The following exceptions
were filed to said report (Clerk will here copy exceptions). The following
additional affidavits were filed before his Honor Timberlake, Judge (Clerk
will here copy affidavits filed at Spring Term, 1901). The motion which was
made before Judge Councill and the exceptions to the report filed at Spring
Term, 1901, were heard before His Honor Timberlake, Judge at said term and
judgment was rendered as follows: (Clerk will here copy said judgment in full)

"The representatives of the share of Polly Edwards, to wit: C.W Edwards and
W.J. King, who are parties to this action, except to the judgment signed to
Judge Timberlake and to his failure to sustain the exceptions to the report
filed by J. Bis Ray filed May 16, 1901, and appeal to the Supreme Court.
Notice of appeal waived. Appeal Bond fixed at $25. Until July 22, 1901,
allowed by consent to appellants to make statement of case on appeal. By
consent this shall constitute the entire record for the Supreme Court and is a
proper statement of case on appeal. Case on appeal served by appellants June
18, 1901. J.T. Perkins and Justice & Pless, Attorneys for appellants, Edwards
and King" Endorsed, "Service of the within case on appeal accepted, this July
1st 1901, Hudgins & Watson, Attorneys for W.H. Gardner." "Time allowed till
July 23rd 1901 to serve case on exceptions. July 1st 1901. E.J. Justice,
Attorney for King et al"

September 2 1901: "Yancey County: In the Supreme Court. D.M. Ray et al,
Plaintiff, Against H.A. Whittington et al, Defendant} Supreme Court Appeal
Bond: Whereas at Spring Term 1901, the above named Defendants recovered
judgment against the Plaintiffs in the Superior Court of said County as
appears by said judgment. And whereas, the appellant intend to appeal from the
said judgment to the Supreme Court. Now, therefore, we C.W. Edwards and J.M.
Edwards of the County of Yancey and State of North Carolina, undertake,
pursuant to the statute that the said appellant shall pay all costs that may
be awarded against Plaintiffs on such appeal, not exceeding twenty-five
dollars. {Signed} C.W. Edwards, J.M. Edwards. Witness, R.L. Young."

"Justification of Sureties: Yancey County. J.M. Edwards, above named, being
severally sworn, say each for himself, that he is a resident of the State of
North Carolina, and worth double the sum specified in the above undertaking,
over all his debts and liabilities, and exclusive of property exempt from such
execution. {Signed} J.M. Edwards. Sworn to and subscribed before me this 2nd
day of September 1901. J. Bis Ray, Clerk Superior Court"

November 15 1902: "Summons for Relief. W.H. Gardner against D.M. Ray and wife
Elizabeth, N.M. Wilson, W.B. Wilson, H.T. Wilson, Z.P. Wilson, C.W. Edwards,
James Edwards, J.W. Edwards, Thomas Edwards, W.J. King & wife Martha, J.C.
Peterson & wife Cora, Hannah Ray & D.M. Buckner} To the Sheriff of Yancey
County... You are hereby commanded to summons... the Defendants above named,
if they be found within your County, to be and appear before the Judge of our
Superior Court, at a Court to be held... at the Court House in Burnsville on
the 13th Monday after the 1st Monday in September 1902 and answer the said
complaint within that term, the Plaintiff will apply to the Court for the
relief demanded in the complaint, and the cost of this action to be taxed by
the Clerk. Herein fail not."

"We acknowledge ourselves bound unto the defendants above named in this
action, in the sum of two hundred dollars, to be void, however if the
plaintiff W.H. Gardner shall pay to the Defendant all such costs as the
Defendants may recover of the Plaintiff in this action. Witness our hands and
seals this 15th day of November 1902. {Signed} W.H. Gardner, J.E. Edwards"

"Justice's Court, Burnsville Township. W.H. Gardner against C.W. Edwards}
State of North Carolina, to any Constable or Lawful Officer of Yancey County,
greeting: You are hereby commanded to summon C.W. Edwards to appear before
D.A. Angel, J.P., at his office in Burnsville Township... on the 22nd of
November 1902 at 11 o'clock a.m. to answer the Complaint of the above named
Plaintiff, W.H. Gardner for the non-payment of the sum of $120 dollars, with
interest on $120 dollars from the 15th day of May 1900, due by contract and
demanded by said Plaintiff. Herein fail not and of this summons make due
return. This 15th day of November 1902. {Signed} D.A. Angel, J.P." Endorsed,
"Served November 16, 1902. W. Burleson, Sheriff, G.B. Beaver, Deputy Sheriff"

November 22 1902: "W.H. Gardner vs. C.W. Edwards} To the Superior Court of
Yancey County: An appeal having been taken in this action by the defendant
C.W. Edwards, the Justice of the Peace before whom the same was issued in
pursuance of a notice of an appeal, do hereby certify and return the following
proceeding had by and before me in the said action. The plaintiff complained
to the amount of $120.00, the defendant denied the right of the plaintiff to
recover on the grounds that said amount had been settled for. Both justices
offered evidence upon the claims so made by them and after hearing the
evidence, I rendered a judgment in favor of the plaintiff and against the
defendant on the 22nd day of November 1902 for the sum of $120.00 & for
further sum of $1.20 cost of this action. I also certify that on the same day
the defendant served notice of appeal in open court and at same time paid me
my fees of 30 cents, all of which I send together with process & papers in the
cause as to the plaintiff. November the 22nd 1902. {Signed} D.A. Angel, J.P."

April 29 1903: "Superior Court, Spring Term 1903: W.H. Gardner vs. C.W.
Edwards, Martha King & Husband W.J. King} Complaint: Plaintiff complaining of
the defendants alleges:

"(1) That William Ray, late of said county, died intestate leaving valuable
real estate in said county which descended to his heirs at law. (2) That the
heirs at law of William Ray are: (a) the children of E.B. Ray, deceased; (b)
The heirs of Hannah Ray, deceased; (c) The heirs of Thursa Anderson, deceased;
(d) The heirs of Margaret Wilson, deceased; (e) The heirs of Hiram Ray,
deceased; (f) The heirs at law of John H. Ray, deceased; (g) The heirs at law
of Thomas Ray, deceased; (h) Elizabeth Ray, living; (i) The heirs at law of
Polly Edwards, deceased, making nine in all.

"(3) That lately in our Superior Court said heirs filed their petition for
sale and partition of the lands of William Ray, deceased. That in said
proceedings it was alleged that John Henry Ray had received advancements from
his father William Ray, in his, William Ray's, lifetime equal to any share of
his father's estate to which he might be entitled. It was also alleged that
Hattie Whittington, the sole heir of Hiram Ray, deceased, had received through
her father by descent the quantity of land advanced to her said father equal
to his said share in said estate. And that the lands of which William Ray died
seized were decreed to be divided among the said heirs of William Ray after
the agreement and consent of the representatives of Hattie Whittington and the
representatives of John Henry Ray to the fact that they have received their
distributive shares of said estate during the lifetime of William Ray,
deceased, and the proceeding was had and the distribution made was among and
between the heirs and the representatives of such as said proceeding will
show. (4) That the defendant C.W. Edwards intermarried with Polly Ray, now
deceased, and is the assignee of three of the four heirs at law of Polly
Edwards, deceased, and that Martha King, wife of W.J. King owns the other one
fourth of the estate descending to Polly Ray from William Ray, deceased. (5)
That the plaintiff W.H. Gardner was appointed a commissioner to sell said
lands and was required to collect the purchase money and pay out under the
orders of the Court, and without the court making an intelligent investigation
as to what moneys came into his hand, forced him by proceedings in contempt,
and at the insistence of these defendants to pay large sums of money in excess
of what was received by him as such commissioner, which sums of money were
paid under protest by him. (6) That by a decree of the Court entered by Judge
Timberlake, the report of the clerk of this court, acting as referee, finding
that said commissioner, W.H. Gardner, had paid to the heirs of William Ray...
the sum of $1,774.07... which was duly adjudged and confirmed by his Honor
E.W. Timberlake, Judge at Spring Term of this Court for the year 1901, in the
final decree taken in said cause. And the proceedings dismissed from the
docket of this Court. (7) That C.W. Edwards and Martha King and husband W.J.
King are liable and due this plaintiff one seventh of said sum, to wit, the
sum of $253.43, as appears in said judgment entered as aforesaid. Wherefore,
plaintiffs judgment against these defendants for one seventh of said judgment
of $1,774.07 and interest on said one seventh from the 21st day of May 1901
until paid... to be taxed by the Clerk..."

January 7 1904: "Superior Court, Fall Term 1903. W.H. Gardner vs. D.M. Ray &
Wife & Others, and W.H. Gardner vs. C.W. Edwards} Answer. The defendants in
the above entitled action, (having lodged a motion to consolidate the same,
and the action of W.H. Gardner vs. C.W. Edwards, being a single item involved
in the case of W.H. Gardner vs. D.M. Ray and others, heirs at law of William
Ray) answering, say:

"(1) That paragraphs 1, 2, 3, 4 of the complaint in the above entitled case
(first case) is admitted to be true. (2) That allegation 5 as to the
appointment of W.H. Gardner, commissioner only, is admitted to be true but it
is denied that the Court without making an intelligent investigation of the
moneys in his hands attached him for contempt of Court, or that he was made to
pay anything in excess of what was due from him to the heirs making the motion
referred to, but on the contrary it is alleged as will be hereinafter shown,
that the amounts due from him to each of the distributees, was rightfully
ascertained and adjudged by the Court, and that except as to those
distributees who forced payment by said attachment, he is still due and owing
these defendants. (3) That allegation 6 is denied as alleged in the said
complaint and reference is made to said order of Judge Timberlake as
hereinafter shown. (4) That allegation 7 of the complaint is denied, and every
part thereof, and on the contrary, these defendants refer to the report of J.
Bis Ray finding that under the corrected report there is still due the heirs
of Polly Edwards $805.65 after all credits whatsoever, including the$120.00
sued for by the plaintiff in the above case against C.W. Edwards, has been
allowed to the plaintiff W.H. Gardner."

"Second Defense and Counter-Claim: (1) And for a second defense and counter-
claim in this action these defendants allege and plead that at Fall Term 1896
all matters whatsoever involved in the settlement of said estate between the
said W.H. Gardner and the distributees thereof including all questions of the
allowance of interest was referred to P.A. Cummings to take and state an
account thereof, which order is hereby referred to and asked to be taken as a
part of this answer. (2) And that in December 1899 the said referee P.A.
Cummings filed an account showing the amounts due from the estate of William
Ray in the hands of W.H. Gardner commissioner, which is hereby referred to and
asked to be taken as a part of this answer, as the same was corrected by J.
Bis Ray, and especially that the net balance due the heirs was $7407.14, and
that the amounts due the heirs of Polly Edwards was $1, 721.35. (3) That W.H.
Gardner, commissioner filed exceptions to the said report thereby making
himself a party to the same as held by subsequent judgments in the cause which
said exceptions and judgments are hereby referred to and asked to be taken as
a part of his answer. (4) That at the Spring Term 1899 report of P.A. Cummings
as corrected by J. Bis Ray showing said amounts due the distributees and heirs
of the estate of William Ray, was confirmed by consent of all parties, only
leaving open the amount of commissions of W.H. Gardner, and later at said Term
by consent of all parties W.H. Gardner was given and allowed $500.00
commissions which he was in no wise entitled to by law and which was to be in
full of all claims whatsoever of the said W.H. Gardner in and to the funds,
commissions or otherwise in the said estate, which said orders are hereby
referred to and asked to be taken as a part of this answer.

"(5) That at Spring Term 1900 a judgment in the case of D.M. Ray and others
vs. H.A. Whittington & others was rendered by Judge Shaw, finding that all
parties herein have settled their distributive shares according to the
Cummings report as amended, and that the amount due from the distributees
after an allowance of $500.00 to W.H. Gardner was made, was the balance in the
sum of $295.00, and that each distributee should pay his proportion of the
balance of allowance in the sum of $42.14, to be credited on the amounts due
the distributees from Gardner, according to the report of P.A. Cummings as
amended, and the said judgment and also the judgment attaching W.H. Gardner
for contempt of Court in not paying the amounts due the defendants, Cora
Peterson, W.M. Buckner and D.M. Ray at Spring Term 1900 is hereby referred to
and asked to be taken as a part of this answer. (6) That report of P.A.
Cummings as corrected by J. Bis Ray and as confirmed by said judgment showing
amounts due the defendants, C.W. Edwards and W.J. King and wife representing
Polly Edwards, from the estate of William Ray in the hands of W.H. Gardner,
and Gardner failing and refusing to pay the same to Fall Term 1900, the
defendants obtained a rule on Gardner to show cause why said amounts should
not be paid over to them, or in default of such payment that he is attached
for contempt of the Court; and at Fall Term, Honorable W.B. Councill, Judge
presiding, it was adjudged that W.H. Gardner is bound by the report of P.A.
Cummings, referee, as corrected by J. Bis Ray as appears from report, and he
is "estopped to deny that at the date of the confirmation of the same it was
correct." And it was ordered by J. Bis Ray to take an account of the
disbursements made by Gardner since the coming in of corrected report, and the
application of such payments, motions to attach Gardner for contempt and for
judgment for the amount so shown to be due Edwards and King representing Polly
Edwards were continued; and Gardner objected to the judgment of Councill,
Judge, and excepted and appealed to the Supreme Court, but abandoned his said
appeal, and the said judgment of Councill, Judge, is hereby asked to be taken
as a part of this answer, and is pleaded as an estoppel on Plaintiffs. (7)
That in May 1901 J. Bis Ray filed his report under the order of Councill in
which he finds that under the Cummings corrected report and his own report of
the moneys and interests in the matter of the estate of William Ray since the
Cummings report and its confirmation, that the estate of William Ray (which
was in the hands of W.H. Gardner) is due Polly Edwards as an heir thereof
$1,721.35 less receipts... $905.69. Balance due her $805.66. And the $120.00
(C.W. Edwards to use W.H. Gardner, May 1900), the defendants are advised and
believe, is the receipt upon which W.H. Gardner sues C.W. Edwards in one of
these actions. And the defendant pleads the finding and report of referee,
which is asked to be taken as a part of this answer as an estoppel upon the
plaintiffs and a counter-claim in favor of the defendants C.W. Edwards and
Martha King, wife of W.J. King, against the plaintiff W.H. Gardner, of which
said sum 3/4 is due to C.W. Edwards and 1/4 to Martha King and husband W.J.
King.

"(8) That the judgment of Timberlake at Spring Term 1901 confirms the report
of J. Bis Ray, and discharges the rule for contempt against W.H. Gardner
commissioner, but does not change or alter the said reports nor affect the
judgment of Councill in the contempt proceeding that W.H. Gardner was bound by
the report of P.A. Cummings and estopped from denying his liability for the
amounts therein found to be due. Which judgment is also asked to be taken as a
part of this answer. Wherefore defendants plead the said reports, judgments
and orders as estoppels upon W.H. Gardner from denying the amounts due from
the estate of William Ray in his hands to C.W. Edwards and Martha King and
other defendants; and defendants plead the amounts so found due them as a
counter-claim and cross-action against the plaintiff W.H. Gardner, and ask for
judgment against W.H. Gardner for amounts with interest thereon from the date
of said finding. (9) That if W.H. Gardner ever had any cause of action against
these defendants or any of them (which is hereby expressly denied) for moneys
over-paid to the estate or otherwise, the same was not paid to these
defendants, and if paid at all, was paid with a full knowledge of all the
facts, and was paid more than three years before the commencement of this
action and the settlement of estate under the report and decrees and
confirmation thereof, and the same is barred by the statute of limitations,
which these defendants plead to the same. Wherefore these defendants ask that
they go hence without day and recover of the defendant W.H. Gardner the
respective amounts found due them by report, and for costs of action to be
taxed by the Clerk." "Filed January 7 1904, J.P. Gibbs, CSC"

April 1904: "W.H. Gardner vs. C.W. Edwards, W.J. et al } The above cause
coming on for hearing and a jury trial being waived and being heard before
Honorable T.J. Shaw, Judge presiding, after hearing the evidence and argument
of counsel it is adjudged that the plaintiff is not entitled to recover and
that he take nothing by his writ; it is further adjudged that defendants C.W.
Edwards and W.J. King are not entitled to recover of plaintiff on their
counter-claim and that defendants recover of plaintiff and J.E. Evans, surety,
the costs. Thomas J. Shaw, Judge Presiding"

"From the foregoing judgment that defendants C.W. Edwards & W.J. King are not
entitled to recover against plaintiff upon their counter-claim set up in the
answer, said defendants appeal in open court." (Minute Docket 123, 124;
Judgment Docket 8D, J.P. Gibbs, CSC)

May 6 1904: "W.H. Gardner vs. C.W. Edwards} Judgment. This cause coming on to
be heard before his Honor T.J. Shaw, Judge, on an appeal having been taken
from a judgment rendered by D.A. Angel, Justice of the Peace, and a jury trial
having been waived on consent of all parties and it being agreed by all
parties that his Honor Thomas J. Shaw should find the facts. And after hearing
the evidence and argument of counsel, it is on motion of Hudgins & Watson and
J. Bis Ray, attorneys for W.H. Gardner, ordered and adjudged by the court that
the plaintiff W.H. Gardner have and recover judgment against C.W. Edwards the
defendant for the sum of one hundred and twenty dollars, the principal from
this the 6th day of May 1904 until paid and cost of this action to be taxed by
the Clerk. It is further ordered and adjudged that this judgment is not
affected by a judgment rendered at this term in the case of W.H. Gardner vs.
C.W. Edwards, W.H. Buckner, D.M. Ray and others, heirs at law of William Ray,
deceased. This judgment for one hundred & twenty dollars and interest on same
from November 15 1902 until paid. {Signed} Thomas J. Shaw, Judge Presiding"

May 31 1904: "W.H. Gardner vs. D.M. Ray & wife & others} This was an action
tried before Honorable T.J. Shaw at Spring Term 1904 of Yancey County Superior
Court, a jury trial being waived. The action grew out of the proceeding of
Whittington & Ray, for partition of the lands of William Ray deceased. In that
proceeding the plaintiff in this case W.H. Gardner was appointed commissioner
to sell the lands of William Ray and sold the same, collecting a percent of
the purchase money and taking notes for balance, which he afterwards
collected. The whole matter was referred to P.A. Cummings to state an account;
Cummings filed his report (which the Clerk will here copy as amended by Bis
Ray). May 28th 1898 W.H. Gardner filed exceptions to the Cummings report. At
Spring Term 1899 the Cummings report was confirmed as corrected by J. Bis Ray.
That report showed that there was due the heirs of Polly Edwards and heirs of
William Ray, $1,721.35. At Spring Term 1900 some of the heirs at law other
than those of Polly Edwards moved to attach W.H. Gardner as for contempt for
not paying the amounts found due them, and the court held that W.H. Gardner
and all the parties had settled the amount of their distributive shares
according to the amended Cummings report, and Gardner was attached and
required to pay the amount due the moving heirs.

"At Fall Term 1900 the heirs of Polly Edwards moved to attach W.H. Gardner as
for contempt for not paying over the $1,721.35 found to be due them, and the
proceeding coming on for hearing, Councill, Judge Presiding, made an order
holding that W.H. Gardner was estopped from denying that the Cummings report
was correct as corrected and confirmed and was bound thereby, and referred to
the Clerk, J. Bis Ray, to ascertain and report the amounts paid out and to
which Gardner was entitled to credit since the date of the Cummings report.
(Clerk will here copy the judgment of Councill, Judge). J. Bis Ray, Clerk,
found and reported that Gardner had paid out since the Cummings report where
there was due Polly Edwards heirs $1,721.35, the sum of $905.69, leaving a
balance due her of $805.26 (The Clerk will here copy report of J. Bis Ray).
Upon this report at Spring Term 1901, Judge Timberlake confirmed the report
and discharged the rule for contempt, but did not find that Gardner did now
owe this $805.66 (here Clerk will copy order of Timberlake, Spring Term 1901).
The defendants C.W. Edwards and W.J. King, the representatives of the share of
Polly Edwards, pleaded this $805.66 as a counter-claim and cross-action to the
plaintiff's demand in this case as shown in the answer and accepted to the
ruling of the Court that they were not entitled to recover the same.

"There was judgment denying the right of C.W. Edwards and W.J. King and wife
representing Polly Edwards share, to recover to which the said defendants
objected and excepted, and appealed to the Supreme Court, time allowed to
serve statement on appeal by consent... The foregoing, together with the
record in Gardner vs. D.M. Ray & others, is tendered by appellants as a proper
statement of the case on appeal. This 31st day May 1904"

July 5 1904: "W.H. Gardner vs. D.M. Ray & wife & others} Counter case on
appeal tendered by W.H. Gardner plaintiff appellee. This was an action tried
before his Honor Thomas J. Shaw, Judge, at Spring Term 1904 of Yancey Superior
Court, a jury trial being waived. The action grew out of a partition
proceeding among the heirs of William Ray deceased, W.H. Gardner having been
appointed a commissioner to sell the lands of Ray.... W.H. Gardner was
required to give a bond in the sum of $20, 000.00 as commissioner for the
faithful performance of the duties of his office as Commissioner and for the
payment of fund into the office of the Clerk of the Superior Court of Yancey
County... The commissioner W.H. Gardner sold the lands in pursuance of the
order of the Superior Court... W.H. Gardner made his reports of sale which was
duly confirmed by Court... By consent of all parties the case was referred to
P.A. Cummings to take and state and account between the heirs at law of
William Ray... Exceptions were filed by certain of the heirs at law to the
report of Cummings... Said reports of Cummings was then referred to J. Bis Ray
to be corrected... At Spring Term 1899 a judgment confirming the corrected
report was signed... At Spring Term 1900 Superior Court a judgment was signed
finding as a fact that W.H. Gardner had settled according to the report of
Cummings... After said judgment was signed at the same term of court another
judgment was signed acquitting and discharging the commissioner from further
liability... and from judgment there was no appeal. At the Fall Term 1900
there was a motion heard before Judge W.B. Councill... order was then made by
Judge Councill and the case was referred to J. Bis Ray, referee. The referee
reported to Spring Term 1901... by which report it is shown that W.H. Gardner
had paid out to the heirs of William Ray the sum of $1,774.07 in excess of the
amount that came into his hands as such commissioner... exceptions were filed
to said report of J. Bis Ray. The motion which was made before Judge Councill
at the Fall Term 1900 and continued and the exceptions to the report filed at
Spring Term 1901, of J. Bis Ray referee, were heard before his Honor
Timberlake, Judge, at said term and judgment was rendered... From the judgment
so rendered the representatives of the share of Polly Edwards, to wit, C.W.
Edwards and W.J. King & wife, and who are the appelants in this case, excepted
to the judgment signed by Judge Timberlake, and appealed to the Superior Court
but failed to prosecute the appeal... action was dismissed. The plaintiff in
this action at the Fall Term 1902 brought this action to recover of the heirs
of William Ray the amount found to have been over paid by him as commissioner
and found in the report of J. Bis Ray to be $1,774.07... The plaintiff
appellee was allowed ten days from the 28th of June 1904 to serve counter
case... The plaintiff appellee, tenders the foregoing as counter case on
appeal and a proper statement of the case. {Signed} J. Bis Ray, Attorney for
Plaintiff"

January 23 1907: "David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et
al} AFFIDAVIT. W.H. Gardner being first duly sworn says that at Spring Term of
the Superior Court 1900 there was rendered in favor of W.H. Gardner a judgment
against W.B. Wilson, H.T. Wilson, Z.P. Wilson, N.M. Wilson guardian of Monroe
Wilson for the sum of $42.14 and that no part of judgment has been paid but
that the same is due..., wherefore W.H. Gardner prays the court that notice
may issue to defendants to show cause if any they can why execution shall not
issue on judgments. {Signed} W.H. Gardner... this 23 day of January 1907"

March 16 1908: "David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et al}
Notice to Defendant: To the Sheriff of Yancey County, Greetings: Whereas, in
the above titled cause judgment was rendered in favor of W.H. Gardner,
commissioner and against J.W. Edwards, James Edwards, Thomas Edwards, Martha
King, wife of W.J. King, at the Spring Term of 1900 of the Superior Court held
for said county, for the sum of $42.14, and interest on the same until paid,
which judgment was docketed on the judgment docket of court at Spring Term of
1900, which judgment stands upon said docket satisfied; W. H. Gardner, the
plaintiff, having made oath that said judgment has not been satisfied in full:

"You are therefore commanded to make known to the defendants that they appear
before the clerk of this court at his office in Burnsville on the 15th day of
April 1908, and show cause, if any they have, why execution should not issued
on judgment for the amount still unpaid, and have you then and there this
notice... James. B. Hensley, Clerk of Superior Court"

April 15 1908: "David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et al}
W.B. Wilson, answering the notice of the mover in this proceeding, viz: W.H.
Gardner, says, that he is along with Monroe Wilson, deceased, Z.P. Wilson,
deceased, and H.T. Wilson, heirs at law of Margaret Wilson, deceased, who was
an heir at law of William Ray, deceased. (2) That the administration of the
estate of William Ray, deceased occupied the courts for a number of years, and
that the above parties represented the interest of their ancestor in said
suit. (3) That at the Spring Term of the Superior Court of Yancey County,
judgment was rendered against the above heirs in their individual capacity for
the sum of $42.14, when said cause was referred to J. Bis Ray, as referee to
take and state and account of the administration of said estate. That prior to
said order of reference the mover herein, to wit: W.H. Gardner had been duly
appointed a commissioner to sell the lands of the said William Ray, deceased,
and distribute the proceeds among the said heirs, the above named parties
being included. That said referee make and file his said report at the Spring
Term, 1901, of the Superior Court of Yancey County, showing that this mover
herein, had been duly credited with said judgment, by this proceeding
attempted to be revived, in the sum above stated, but by said report $29.84 is
due on said report after crediting said judgment to said Gardner, by the heirs
of Margaret Wilson above stated, in their several and individual capacities,
and this party pleads his rights as an individual in said judgment, hereby
offering the report of J. Bis Ray, Referee, the record of Judgment confirming
the said report and all papers in the cause and pleads same forever as an
estoppel against said mover in bar of any claims arising out of above suit.
{Signed} W.B. Wilson. Sworn to and subscribed before me this the 15th day of
April, 1908. Jas. B. Hensley, Clerk Superior Court"

April 15 1908: "North Carolina, Yancey County} In the Superior Court, Before
the Clerk} David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et al} J.M.
Edwards answering the notice issued by W.H. Gardner in the above entitled
cause, to receive judgment against him and his co-heirs of Polly Edwards,
deceased, says:

"(1) That the affiant and Thomas Edwards John Will Edwards and Martha J. King
are the children and heirs at law of Polly Edwards, deceased. That their
ancestor Polly Edwards was an heir at law of William Ray, deceased, and as
such inherited an estate from her ancestor, which said estate by law descended
to above parties. (2) That the setting up and administering the estate of
William Ray occupied the courts for a number of years, and in the course of
said proceedings the move in this proceeding, to wit: W.H. Gardner was
appointed a Commissioner to sell the lands of William Ray and make
distribution of the proceeds. (3) That at Spring Term 1900 of the Superior
Court of Yancey County, judgment was rendered in said cause in favor of the
plaintiff as alleged in the notice issued herein, and at said term, as affiant
is informed and believes, said cause was referred to J. Ray, Referee to make a
report of the administration of said estate, and to show the court the status
of the estate in the hands of said commissioners, to whom any interest in his
hands was due, if any, as an heir thereof. That said referee filed his report
at Spring Term 1901... showing a balance due to the above named heirs of Polly
Edwards, after allowing to W.H. Gardner, the judgment of Spring Term 1900, in
the sum of $42.14 against these defendants and heirs, in the sum of $805.66,
and that the report of J. Bis Ray was duly confirmed by a judgment duly
entered at Spring Term 1901, which said report, judgment and all the papers in
the above entitled cause are offered & plead as an estoppel against the said
W.H. Gardner for any claim, title or interest against these heirs in
proceeding or arising therefrom. {Signed} J.M. Edwards... Jas. B. Hensley,
Clerk Superior Court"

April 15 1908: "David M. Ray, et ux, et al vs. H.A. Whittington, and wife, et
al} This Cause coming on to be heard before me, upon notice issued and served
upon J.W. Edwards, James Edwards, Thomas Edwards, Martha King to revive
judgment in the sum of $42.14 and being heard and after hearing the proof and
contentions of the parties, I refused to revive judgment for the reason that
the report upon which judgment was given in favor of W.H. Gardner, showed the
sum of $805.66 to be due the said parties in the cause in which W.H. Gardner
secured his judgment to J.W. Edwards, James Edwards, Thomas Edwards, and
Martha King. From this order the said W.H. Gardner appealed to the Superior
Court in term. This the 15th day of April 1908... James B. Hensley, Clerk"

"David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et al} This cause
coming on to be heard before me, upon notice issued and served upon W.B.
Wilson, to revive judgment in the sum of $42.14, and being heard, and after
hearing the proof and contentions of the parties, I entered judgment against
the defendant W.B. Wilson, in the sum of $10.53 being the pro rata share of a
judgment secured in the cause by W.H. Gardner, commissioner, against W.B.
Wilson, Z.P. Wilson, H.T. Wilson and N.M. Wilson, guardian of Monroe Wilson. I
refused to revive judgment against W.B. Wilson for the pro rata share due on
judgment by H.T. Wilson, Z.P. Wilson, and Monroe Wilson. The said W.B. Wilson
paid into my hands as Clerk... the sum of $12.00 same being cost, interest and
principal on his pro rata part of judgment. From this judgment the said W.H.
Gardner appealed to the Superior Court in term. This the 15th day of April
1908... James B. Hensley, Clerk"

Spring Term 1910: "David M. Ray, et ux, et al vs. H.A. Whittington, et ux, et
al} This cause coming on to be heard upon motion of W.H. Gardner,
commissioner, to revise judgment against the heirs at law of Polly Edwards,
upon appeal from the Clerk of this Court & being heard. And it appearing to
the Court that the mover herein is not entitled to have said payment revised,
this on motion ordered that mover take nothing by his motion & that same be
disallowed & heirs at law of Polly Edwards recover of W.H. Gardner the cost in
their behalf. {Signed} W.B. Councill, Judge Presiding"

End of the estate file.