WILL: John Kellet; Venice, Cayuga County, New York, Cayuga co., NY surname: Kellet, Culver, Winslow, Thompson, Sisson, Niblo submitted by Teresa Culver (tbc8 @ cornell.edu) ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/ny/nyfiles.htm Submitted Date: July 31, 2004 This file has been created by a form at http://www.genrecords.org/nyfiles/ File size: 31.2 Kb ************************************************ Source: Vol M Book Of Wills Cayuga County FHL 853224 (or 853223) Pg. 459-473 Written: April 9 1853 Recorded: January 13 1859 John Kellet To The Surrogate of the County of Cayuga. The Petition of Thomas Kellet of the town of Venice County of Cayuga and State of New York, Respectfully showeth That John Kellet late of the town of Venice in the County of Cayuga aforesaid, departed this life on or about the Fourth day of September in the year of our Lord One thousand eight hundred and fifty eight. That the said Deceased was at the time of his death an inhabitant of the said County of Cayuga. That he has left a Last Will and Testament which is dated the Ninth day of April in the year of our Lord One thousand eight hundred and fifty three. That in and by the said Will the said Deceased appointed Hannah Kellett, William Kellet and your Petitioner Executors thereof. That the said Deceased left the following heirs at law and next of kin, to wit Mary Kellet, William Kellet, Sarah Culver of Venice, Hannah Winslow of Ledyard, Eliza Sisson of Auburn Cayuga County, Jane Thompson of Wolcott, Wayne County, Margaret Niblo of the city of New York, John Kellet of the State of Ohio, and your Petitioner, children of the Deceased. That the said Deceased left Hannah Kellet his Widow who resides in Venice aforesaid. That said Will relates to both Real and Personal Estate. That your Petitioner is desirous of proving said Last Will and Testament as a Will of Real and Personal Estate, that the same may be recorded as such in pursuance of the Statute in such case made and provided Your Petitioner therefore prays the Surrogate aforesaid that the necessary steps may be taken before him for that purpose. Dated September 28 1858 Thos. Kellet Cayuga County fs Thomas Kellet, the above Petitioner being duly sworn deposes and says that the facts stated in the above Petition by him signed are true to the best of his knowledge and belief Thos. Kellet Sworn this 28th day of September 1858 before me Jacob R. How Commissioner of Deeds for the City of Auburn The People of the State of New York, by the grace of God free and Independent. To Hannah Kellet Mary Kellet William Kellet Sarah Culver of Venice, Hannah Winslow of Ledyard, Eliza Sisson of Auburn Cayuga County, Jane Thompson of Wolcott Wayne County, Margaret Niblo of the City of New York, John Kellett of the Stae of Ohio, Widow, heirs at law and next of kin of John Kellet late of Venice, Cayuga County, Deceased, Greeting You and each of you are hereby cited and required personally to be and appear before our Surrogate of our County of Cayuga, at his office in Auburn in said County on the Seventeenth day of November next, at ten o'clock in the forenoon of that day, to attend the Proof and Probate of the Last Will and Testament of the said Deceased, which relates to both real and personal estate and is presented for Proof and Probate by Thomas Kellet, Executor therein named, and hereof fail not. In Testimony whereof we have caused the seal of office (L.S.) of our said Surrogate to be hereunto affixed. Witness Jacob R. How, Surrogate of said County, at Auburn the twenty Eighth day of September in the year of our Lord one thousand eight hundred and fifty eight Jacob R. How, Surrogate We hereby admit personal service of a copy of the written citation more than fifteen days before the return day, hereof. Hannah Kellet, Hannah Winslow Mary Kellet, William Kellet Elizabeth Sisson, Margaret Niblo, In Presence of Cayuga County fs. Thomas Kellet being duly sworn deposes and says that he did more than fifteen days since save a copy of the annexed citation on (?) Sarah Culver and Jane Thompson, by delivering to each of them a copy thereof, and at the same time showing to each of them the said citation with the seal of the Surrogate of said County thereon impressed. Sworn this 17th day of November Thos. Kellet 1858 before me Jacob R. How, Surrogate State of New York City and County of Albany fs. George W. Quackenbush of the City of Albany, being duly sworn deposes and says that he is a foreman in the office of the Albany Evening Journal, the State Paper, published in the city of Albany and that the notice, of which the annexed is a printed copy, has been regularly published in said Albany Evening Journal once in each week for Six weeks successively, commencing on the first day of Oct. 1858. Geo W. Quackenbush Sworn before me this 12th day of Nov. 1858 Ph Ten Eyok, Commissioner of Deeds is at a Surrogates Court held at the Surrogates office in the City of Auburn in and for the County of Cayuga, on the Seventeenth day of November A.D. 1858. Present Jacob R. How, Surrogate An Instrument in writing purporting to be the Last Will and Testament of John Kellet late of Venice in said County, Deceased, was offered for Proof and Probate as a Will of Real and Personal Estate pursuant to the Statute. On filing due proof of the publication and service of the citation issued in this matter, the same was now brought on to be heard, when Thomas Kellet and William Kellet, two of the Executors in the said Will named, appeared in person and by Ebenezer H. Ames, Esq. Their counsel, for the purpose of sustaining the validity of said Will, and Sarah Culver, one of the heirs at law and next of kin of the said Deceased appeared in person and by David Wright Esq: her counsel, for the purpose of Contesting the validity of said will, Whereupon the following testimony was produced and taken in open court. In the matter of the Proof & Probate of the Last Will & Testament of John Kellet, Deceased - Cayuga County fs. Eleazer Burnham of Ledyard in said County being duly sworn deposes and says I was well acquainted with John Kellet late of Venice in said County, Deceased. I was present when a certain instrument in writing now here shown to me dated the Ninth day April A.D. 1853 and purporting to be the Last Will and Testament of the said Deceased, was executed. I saw the Deceased execute said instrument by signing his name to the same. I heard him publish and declare the same to be his Last Will and Testament. The Deceased requested me to become a subscribing witness to the execution thereof. I did so and signed my name thereto as such witness in his presence. The said Deceased was in my opinion at the time of the execution of said instrument of a sound and disposing mind and memory and in all respects competent to make and publish a Last Will and Testament and to devise real estate, that he was of full age and under no restraint that I know of. The other subscribing witness to said Will, John L. Cuyler is now Deceased. I was present when the said John L. Cuyler signed his name to said Will as a witness. I saw him sign said Will as such witness at the time of the execution thereof, and at the same time that I signed it as a witness. I drew up said Will at the request of the said Deceased. I have now examined the same carefully and find no alterations or erasures therein since its execution. I believe it to be in the same situation in all respects as it was when executed by the said Deceased. The said deponent on a cross examination by counsel resisting the Will says I don't know who came with Deceased to my office at the time the Will was executed. I had never drawn a will previously for him. The Deceased told me he wanted me to draw his will. I took some memorandum from his directions and there drew the will from the memorandum. I have no recollection of the Deceased bringing any memorandum with him I don't recollect of Deceased being introduced to John L. Cuyler by me. I don't recollect whether the Will was executed the same day it was drawn. I recollect that the Deceased Son John was about at the time the will was made. I have no recollection of his growing (?) the reasons why he made so small a provision for his Son John or of his advising with me in regard to it. The Deceased delivered the Will after it was executed to me and requested me to seal it in an Envelope and keep it in my possession until after his death. If the Deceased brought any memorandum with him I think I should have put it in the Drawer with the Will. The clause of the Will relative to the forfeiture of the Legacies to the daughters in case of a prosecution by them was put in by the directions of the Deceased. Sworn this 17th day of November E. Burnham 1858 before me Jacob R. How Surrogate In the matter of the Proof & Probate of the Last Will & Testament of John Kellet, Deceased - Cayuga County fs. Ebenezer H. Ames of Ledyard in said County being duly sworn deposes and says I was well acquainted with John Kellet, Deceased, in his lifetime and with his handwriting. I have seen him write and verily believe that his signature to an instrument in writing, now here shown me, dated the Ninth day of April A.D. 1858 and purporting to be the Last Will and Testament of the said Deceased is his own genuine signature. I was also well acquainted with John L. Cuyler, one of the subscribing witnesses to said instrument in writing and with his handwriting. I have seen him write and verily believe that his signature to said Will as a subscribing witness is his own genuine signature. The said John L. Cuyler is now Deceased. The said deponent on a cross examination by Counsel resisting the Will says I did business for the Deceased for a number of years before his death. I remember Deceased once spoke to me about making a Will and said he must make a Will. This was some years ago and it is my impression that it was somewhere near the date of the present Will. I think he afterwards stated to me that he had made a Will. I did not know any thing about the Contents of the Will. The Deceased never stated to me any thing about the contents of the Will. I heard in some way that the Will was left in Mr. Burnham's hands. I never had any conversation with Thomas Kellet or William Kellet in reference to the contents of the Will. I do not know of Deceased having any prejudice against any of his children. Sworn this 17th day of November E. H. Ames 1858 before me Jacob R. How, Surrogate, By Consent of parties It is ordered that the further hearing of this matter be adjourned until the thirteenth day of January next at ten o'clock in the forenoon, at the said Surrogate's office Surrogate's office Cayuga County Auburn January 13th 1859 Presents Jacob R. How, Surrogate This matter having been adjourned over to this day, the same was now brought on to be heard, when the respective parties appeared in person and by Counsel. The counsel resisting the Will called as a witness Polly Snyder who being duly sworn deposes and says I reside in Scipio Cayuga County. I formerly lived with John Kellet, Deceased. I went there first two years ago and lived there 4 months. I left there in the Spring and went back the next October and lived there until July last. I heard Mr. Kellet say he did not like the way his will was made. He said this in in (sic) the family in the presence of his wife and his children, William, Thomas, and Mary. The members of the family were talking about the Will. This was the first winter I worked there. I don't know as I recollect of his specifying any particular in which his will did not suit him. I have heard his daughter Mary say that she thought she and William ought to have all there (?) was there. She said this to her Father and mother. This was said the last time I lived there (The counsel supporting the Will objects to the evidence already given by this witness on the ground that it relates to events which took place after the making of the will, and also to all other evidence of what took place after the execution of the will. The witness proceeds. At the time referred to they were talking about the Will. I can't give all the particulars. The old man said he should have the Will just as he wanted it. I don't know as the family made any reply to this remark. I don't recollect of any other conversation in reference to the Will. I recollect of Mary's threatening to leave home two or three times. I heard her threaten both of the times I lived there. She said she was not going to stay there and get nothing for her labor. She said this to her mother. Her father was not present. I never heard William or Thomas say anything about the Will. I never heard Mary say that she knew what the provisions of the Will were. The said deponent on a cross examination says Mary has lived at her Father's house long as I have known anything about the family and had the principal charge of the house and the Work Polly Snyder her mark Sworn this 13th day of Jany. 1859 before me Jacob R. How, Surrogate The counsel resisting the Will called as a witness Jane Thompson who being duly sworn deposes and says I live in Wolcott, Wayne County. I am a daughter of John Kellet, Deceased. I once went out to visit my Father when he was first taken sick, it was in July 1857. I there saw my Sister Hannah Winslow. I told her Father worse & not live long. She said I suppose he will not give me anything. I said what makes you think so. She said the reason was that she had been up to see her Father to influence him to give his son William property. She said she had overcome her Father and induced him to comply with her request. She said her Father was in a rage and would not give her anything. No one else was present at this conversation. I did not know at the time that Father had made a Will Hannah did not say that she knew that Father had made a Will. When I was alone with Father he said that what he had given me I might keep if I had a mind to. He said nothing more in reference to his property. I was there again after Father's death and at his funeral. There was nothing in particular said at this time in the family in reference to the Will. The first time I knew about the Will was when Thomas came down to serve citation for the proof of the Will. He told me the particulars of the Will. He said the reason my Legacy was so small was that the interest had been reckoned on what I had when I was married. I told him the Will was different from what I expected. He did not say that Father said this was the reason why I got so little. Jane Thompson Sworn this 13th day of January 1859 before me Jacob R. How, Surrogate, The counsel resisting the Will called as a witness Hannah Winslow, who being duly sworn deposes and says. I reside in Ledyard Cayuga Co. I am a daughter of John Kellet. I live 3 miles from the residence of my Father. I was frequently at his house during his life time. Previous to making of the present will Father told me he intended making a Will. I did not know at the time that he went to Mr. Burnhams to have his will drawn. I had no conversation with Father as to the disposition of his property before the making of the Will. Some 20 years ago before going to Europe I knew of his making a Will Some years previous to the date of the Last Will. I heard him say that he had destroyed the first Will. I never heard him speak of making any other Will. I had no knowledge or information from any source as to what the provisions of the last will were to be. I never learned the reason of his making his last will at the time he made it. I have talked with him about the disposition of his property before the present will was made. The first conversation with him on this subject was 8 or 9 years ago. While I lived at home he talked more freely with me about his business than with his other children. I left Father's house some 15 years ago He was in the habit of talking to me freely after I left home. For a year previous to making the present Will I had no conversation with him in reference to his Will. The last conversation with him on the subject was at his own house. I don't recollect who were present. He said he intended to make a Will before long or something to that effect. He did not at this time state any of the provisions or the substance of any of the provisions of the will. I never heard him say previous to the present will what he intended to give any of his children. He never told me any thing else except that he intended to make a will. I never heard him say that he intended to leave his boys more than his girls. I heard him say that he preferred the English Laws to the American in regard to dividing property. I never heard him say anything previous to this will about William's leaving him. I once knew of William's going away from home and staying away two or three days. I have no recollection of my father telling me the reasons of William's leaving. I heard the subject talked of in the family. I never heard from anyone that his return depended upon the provisions of the Will. I never heard of William's threatening to go away again before the will was made. I did not know the substance of the will until it was read after Father's death. I had heard Father say what provision he had made in part for Mary. I should think this was about three years before Father's death. He told me he'd given her L1000. This was all he ever told me about the contents of the will. I have heard Thomas and William speak on the subject of Father's making a Will. Neither of them ever requested me to say any thing to Father on the subject. I have no recollection of their speaking as to what would be the contents of the will. I never heard Mother speak of the contents of the will. I heard her say she wanted him to make a will. I never heard Thomas or William say what the contents of the will were before it was read. I have heard my Sister Mary say what she thought some of the provisions of the will were. I have talked with Father since the making of the Will in reference to William's matters. It was three years ago this winter. I went up to Father's on a visit. My Father commenced speaking in regard to William. He spoke of William's not being husevening (?), of his not rising early in the morning. I said to Father that if he would settle with William annually for his labor it would encourage him. He said he thought William ought to be contented with what he saw fit to give him after he had got through with it. I told him I thought it was not proper to depend upon this, but that he ought to settle with him annually. Father seemed excited and thought I meant to dictate to him in regard to his property. He then said no child ever had or ever should dictate to him with regard to his property, that if any one attempted it he would cut them short without a Dollar. I told him I did not intend to dictate to him, and that if he was not satisfied of this fact that I did not wish any of his property, and that he might give it to those who had more need of it. I have mentioned the circumstance of this conversation to members of our family. I may have mentioned it to Mrs. Culver and the rest of my Sisters. I may have mentioned it to Mrs. Culver, but don't recollect particularly the time. My Father said if William was not satisfied with the way in which he was living (?) he might leave My mother and my Sister Mary were present at this conversation and heard it all. I don't commence (?) be of William's threatening to leave at the time the will was made or before, except as I have stated. The boys after they were old enough assisted Father in his writings. I only did it when especially called upon for that purpose. I don't recollect of ever being called upon for that purpose. I don't recollect of ever being called upon by any one to help settle matters between Father and the boys. Father never came to my house to talk about his difficulties with his family Subscribed & Sworn this Hannah Winslow 13th day of January 1859 before me Jacob R. How. Surrogate The counsel resisting the Will called as a witness William Kellet, who being duly sworn deposes and says. I resided in Venice I am a Son of John Kellet. I am nearly 33 (?) years of age. I have resided at my Father's most of the time until his death. I have heard Father say that he was going to make a Will. I don't recollect of hearing him say anything more than his on the subject. I never mentioned the subject to him. I never talked with Mother on the subject. My Father and myself had a little spat when I was 20 (note first numeral is mostly gone; might be 30) years old. It arose because I did not get up as early as he wanted me. I talked of leaving him when the California Fever broke out. I wanted him to fit me out, there was no words or difficulty about it. He said he did not want me to go, but that if I was bound to go he would help me. Father and Mother both said they did not want me to go. I did not make or propose any bargain about staying home. I did not threaten to go if Father did not do certain things. The next time I talked of leaving was in the fall of 1855. I had got tired of living there in the way I was living. I was staying without wages and only had my food and clothing. I told Father I wanted to go West the next Spring. He did not make any objections. I told him I was tired of living as I had done, that it was time I was doing something for myself. I don't recollect that he made any reply. Afterwards, he proposed to buy the Cottrel farm and give me a Deed of it if I would stay in this County. I told him I would like that. He attended the auction, but did not buy the farm. I then expected to go west the following Spring. We had no more talk on this subject until he next March. He called me into the house and told me he wanted to give me a Deed of the Homested and that himself and mother would take a life lease for their support. I told him if he wanted to do so I was willing to do it. I then agreed to stay. After the will was made Father told me he had made it and where I could find it in case any thing happened to him. William Kellet Subscribed & Sworn this 13th day of January 1859 Before me Jacob R. How Surrogate Will I, John Kellet, of Venice in the County of Cayuga and State of New York, aged seventy five years and upwards, desiring to discharge the duty every man owes to his family, by making a just and proper disposition of his worldly Estate; Do make, publish and declare the following to be my Last Will and Testament, hereby revoking all former wills and Testaments by me made. First I do nominate, constritute (?) and appoint my beloved wife Hannah and my two sons Thomas and William and the survivors executrix and executors of this my said Last Will and Testament. Second. I do give and bequeath unto my said wife for and during her natural life, one third part of the income of all the real estate whereof I may (die seized) ? of or entitled to or possessed, and I do also give and bequeath unto my said wife absolutely, and to be at her disposal, all and every part of my household furniture excepting only such part thereof as is hereinafter give to my daughter Mary, which aforesaid provision for my said wife is intended by me to be in bar and in lien ?? and in full satisfaction of her Dower in all real estate whereof I may have been seized at any time during our covertrue (?), and in full of other claims or demands on my real or personal estate Third. I do give and bequeath all my wearing apparel at the time of my decease to my two sons Thomas and William, and to the survivor, which they shall have and retain without means(?) trying or making any other disposition thereof. Fourth. I do give and bequeath unto my oldest daughter Mary, as her aron (?), One hundred and fifty Dollars of my household furniture at my decease, including as part of that sum, such articles as she may have in her possession belonging to me at my decease, which articles of furniture so satisfy the aforesaid bequest to my said daughter Mary is to be received ?) by her at the valuation thereof made by the appraiser of my personal estate, at any time after such appraisal, and I do also give and bequeath unto my aforesaid daughter Mary the sum of one Thousand Dollars in money or in good securities for money, with interest from my decease, and to be paid to her by my Executrix or Executors out of my personal estate before at the expiration of one year from my decease. Fifth To my daughter Jane, wife of George Thompson, of Wayne County, I give and bequeath Two hundred and fifty dollars, and to my daughter Elizabeth, wife of Isaac Sisson Junior I give and bequeath five hundred Dollars, and to my daughter Sarah, wife of Anson Culver I give and bequeath two hundred and fifty Dollars, and to my daughter Hannah, wife of William Winslow, I give and bequeath Three hundred Dollars, and to my daughter Margaret, wife of John Niblo, I give and bequeath four hundred Dollars, which Legacies specified in this fifth clause of my will to my five daughters, Jane, Elizabeth, Sarah, Hannah and Margaret, severally and respectively, I direct my Executrix and Executors to pay to said Legatees respectively without interest in money or good securities for money, at the expiration of one year from my decease, free from any claim or demands upon said Legatees or Legacies for or by reason that I have heretofore made or shall hereafter make any advances or gifts in money or other thing to either of said Legatees or to the husband of either of them, Provided nevertheless, that it shall be lawful for my said Executrix and Executors to set off against such legacies or collect from said Legatees respectively or the respective husbands of said Legatees any securities for money by me me (sic) loaned to any of them, and for which any written security shall remain unsatisfied at my decease. Sixthly And as to all the rest, residue and remainder of my Estate real and personal, and all such as it may exist at my decease in Law or in Equity, in reversion, remainder or in possession (?), I do give, devise and bequeath the same to my two sons Thomas and William in equal portions and to their heirs and assigns forever. Provided nevertheless, that this sixth clause in my will is made upon the express condition trust and confidence, that in case my Son John, to whom I have heretofore made considerable advances, and who, if now living, resides in parts to me unknown, shall within five years after my decease return and make himself known to my Executors or the Survivor, that then and in such case my said Sons, Thomas and William, their heirs, Executors, Administrators, or assigns, shall in thirty days after demand, pay to said John the Sum of four hundred Dollars, or in case my said son John, shall not return and make demand within the time aforesaid above, and Thomas, the Son of the said John, an infant of tender years, shall live until he - the said Thomas, shall arrive to Twenty one years of age, then and in such case, that my said Sons Thomas and William, their heirs, Executors, Administrators, and assigns, do and shall, pay to my said Grand Son, Thomas, said Sum of Four hundred Dollars intended for his said Father in case of his return as aforesaid, but no interest on said Four hundred Dollars shall be demanded in either case. And Lastly It is my will and desire if consistent with law, that my Estate be settled and the Administration closed without any Sale at auction, by paying all legacies and delivering such articles as are specifically bequeathed and further that in case that either of my daughters named in the fifth clause of my will, or the husband of either of them, shall prosecute or institute any proceedings in law or equity to obtain any other or larger share or portions of my Estate than is bequeathed to them in said fifth clause of my will, It is my will that every ? such of my said daughters or their husbands as may prosecute or institute any such proceeding, and their heirs Executors, Administrators, and assigns, be forever prohibited and debarred in law and equity from demanding all and every legacy and portion of my estate real and personal, and any portion of my Estate intended for such person or the wife of such person shall fall into and forthwith become part of my residuary estate and vest in my residuary Legatees and it is my further will that any female being a married woman, and entitled to any legacy or portion of my Estate by the terms of this will may receive and receipt and have and enjoy the same, without the let, hindrance or interference of her husband, his debts or creditors. In witness whereof I have hereunto set my hand and seal, this Ninth day of April Eighteen hundred and fifty three. John Kellet (L.S.) Signed, Sealed and Published and declared by the above named John Kellet the Testator, to be his Last Will and Testament, in our presence, who have hereto subscribed our names at the request of the Testator as witness to the execution thereof in presence of the Testator and of each other. "Twenty five" or 2d line written on an obliteration E. Burnham of Ledyard, Cayuga County New York Jno L. Cuyler of the same place Renunciation Whereas I, Hannah Kellett, widow of John Kellet, late of the town of Venice in the County of Cayuga, Deceased, have in and by the Last Will and Testament of the said John Kellet, Deceased been appointed one of the Executors or Executrix of said Last Will and Testament and being old and infirm, and unwilling to take upon myself the burden of the execution thereof. Therefore I, the said Hannah Kellet, Do hereby renounce all claims and right to the execution of said Last Will and Testament as Executrix thereof. And I hereby request the Surrogate of the County of Cayuga to file this my Renunciation and record the same as provided by law. Dated this 27th day of September 1858. Hannah Kellet her mark Signed in the presence of E. N. Ames, E. Burnham Cayuga County fs. On this 28th day of Sept 1858 personally came before me Hannah Kellet, to me known to be the same person described in and who executed the foregoing instrument and acknowledged the execution thereof for the uses and purposes therein expressed. C. Wheeler L ? Justice of the Peace I hereby certify that the preceding is a true record of the preceeding, proofs, and examinations taken before me in the matter of the Proof and Probate of the last Will and Testament of John Kellet late of the town of Venice in the County of Cayuga, Deceased, as a Will of Real and Personal Estate, and also of the said Will, and that the were recorded on the Thirteenth day of January in the year of our Lord One thousand eight hundred and fifty nine Jacob R. How Surrogate