WILL: Phebe Smead; Locke, Cayuga co., NY surname: Smead, Brown, Sprague, Dutton, Howe, Woodin, Dening, Bray, Cropsey, Stout, Howells, Kellogg, King submitted by Cathy Young (vcyoung at prairienet.org) ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/ny/nyfiles.htm Submitted Date: November 29, 2005 This file has been created by a form at http://www.genrecords.org/nyfiles/ File size: 17.8 Kb ************************************************ Source: Sampubco.com Cayuta co NY Will Book Vol. U page 104 Written: April 5, 1870 Recorded: February 12, 1871 Transcribed from SAMPUBCO copy by V. Cathryn Young Cayuga County, New York Will Book Vol. U, page 104 Phebe Smead To the Surrogate of the County of Cayuga The Petition of Minerva Brown of the town of Locke County of Cayuga and State of New York respectfully sheweth That Phebe Smead late of the town of Locke in the County of Cayuga aforesaid departed this life on or about the 3rd day of August in the year of our Lord one thousand eight-hundred and seventy, That the said deceased was at the time of his death an inhabitant of the said County of Cayuga, That she has left a last will and testament which is dated the 5th day of April in the year of our lord one thousand eight hundred and seventy, That in and by the said will the deceased appointed the Petitioner Executor thereof, That the said deceased left the following heirs at law and next of kin to wit, Your petitioner and Lewis H. Smead of Locke N.Y. children of said dec'd, and Emeline Sprague of Battle Creek, Michigan, Phebe J. Dutton of Geneva N.Y. and Howe of Lockport N.Y., Nephews & Nieces of said dec'd. That said will relates to both real and personal estate the whole value of which will not exceed $600.00, 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 Manerva Brown. --- Cayuga County ss The above petitioner being duly sworn deposes and says that the facts stated in the above petition by her signed are true to the best of her knowledge and belief. Sworn to this 25th day of Manerva Brown November 1870, before me. Wm B Woodin, Surrogate The People of the State of New York, To Lewis H. Smead of Locke N.Y., Emeline Sprague of Battle Creek Michigan, Phebe J. Dutton of Geneva N.Y. and _______ Howe of Lockport N. Y. heirs at law and next of kin of Phebe Smead late of Locke, Cayuga County N.Y. deceased , Send Greeting---Whereas Minerva Brown of Locke Cay. Co. N. Y. has lately applied to our Surrogate of the County of Cayuga for the proof of the will of Phebe Smead late of Locke in said County, deceased which said will relates to both real and personal estate. Therefore you and each of you are cited and required to appear at the office of the said Surrogate in the City of Auburn on the 17th day of January next at ten o clock in the forenoon of that day and attend the probate of the said will. In testimony Whereof We have caused the seal of office of our said Surrogate to be hereunto affixed. Witness Wm B. Woodin Surrogate of the County of Cayuga at the Surrogates office in the City of Auburn this 28th day of November in the year of our Lord one thousand eight hundred and seventy [c] Wm B. Woodin Surrogate Cayuga County ss. Manerva Brown of Locke Cay. Co. being duly sworn deposes and says that she served copies of the annexed original citation on Lewis H. Smead at Locke Cay. Co. on the 1st of December 1870, on Phebe J. Dutton of Geneva N.Y. on the 28th of November 1870, and on Charles Howe at Buffalo N.Y. on the 30th of November 1870. That said service was made by handing to and leaving with each of said persons a copy of said citations and at the same time showing to each the annexed original. Deponent further says she knows the persons so served to be the same persons mentioned and described in said citation as she is [informed] & verily believes. Sworn to Jan'y 17, 1871 Manerva Brown before me. E. A. Woodin Clerk to Surrogate Court Cayuga County ss Patrick [Dening] of Auburn in said County being duly sworn, deposes and says, he served a copy of the annexed original citation (with the seal of the court impressed thereon) on Emeline Sprague at Battle Creek Michigan on the 28th day of November 1871. That said service was made by enclosing said copy in an envelope securely sealing the same, directing it as above mentioned prepaying the legal postage thereon and depositing the same in the Post Office in Auburn NY. on the day above mentioned. Deponent further says that at the time of such service there was a regular communication by mail between Auburn aforesaid and the place above mentioned as he is informed and believes Sworn to before me this Patrick [Dening] 28th day of Nov 1870. E Q Woodin clerk to Surrogates Court State of New York City and County of Albany } ss Mathew Bray of the City of Albany being duly sworn says that he is a foreman in the office of The Argus State Paper, published in the City of Albany and that the Notice of which a printed copy is annexed, has been regularly published in The Argus once in each week for 6 weeks successively commencing on the 1st day of December 1870. Sworn before me this 13th day Mathew Bray of January 1871. Timothy J. [Dovner] Commissioner of Deeds Surrogates Court County of Cayuga} } probate of the last will and testa= } ment of Phebe Smead deceased } I, F.G. Day, do hereby consent to act as Special Guardian In the matter of the proof and of Charles Howe minor, heir at law and next of kin of Phebe Smead late of Locke, Cayuga County N.Y. deceased for the sole purpose of [appearing for ???] and taking care of his interest in the further proceedings in this matter. Witness my hand this 6th day of Feb'y 1871 F. G. Day.--- In Presence of EAWoodin Cayuga County } To. Wm B Woodin Surrogate of Cayuga Surrogate Court } County. The Allegations of Lewis H. Smead one of the next of kin of Phebe Smead late of the town of Locke deceased, against the validity of The last will and Testament of the said Phebe Smead deceased and against the [competency] of the proof thereof. First Allegation. The said Phebe Smead at the time of the Execution of the instrument in writing purporting to be her last will and testament was not competent to make a will. Second Allegation. That the instrument in writing of said was not executed and attested in the manner prescribed by law for the execution and attestation of last will and testaments---Third Allegation. That the execution of the said testament by the said Phebe Smead was obtained by fraud [imposition] and coercion practiced upon the said Phebe Smead by certain [degree] named in said instrument CONTINUE here, or by some other person or persons at the instance and under, and by [the directions] and contrivance and that the said Phebe Smead, at the time of the execution of the said instrument was under the influence, duress and restraint of the said legatee and [?]. Dated Auburn Jan'y 19, 1871. Lewis H. Smead, [per] F. G. Day, his Proctor & Counsel. At a Surrogate Court held at the Surrogates Office in the City of Auburn in and for the County of Cayuga on the 6th day of February [?] Present Wm B Woodin Surrogate In the matter of the proof and } probate of the last will and testa= } ment of Phebe Smead dec'd } John E. Cropsey [sworn] for Proponents [????] in Locke Cay Co. was well acquainted with Phebe Smead. She lived in Locke was present when the instrument was shown to me bearing date April 5th 1870, purporting to the last will & testament of said dec'd was executed I saw her execute it by signing her name at the end. She declared it to be her last will & testament. [?] [?] to me about being a witness to the will. She asked me to witness it. I did so & signed my name as witness at her request. In the presence of Phebe Smead & C. M. Stout. In my opinion she was of sound & disposing mind & memory at the time she executed the will. She was quite an aged lady, she told me she was 82 years of age. She appeared young for that age. I do not know that any restraint was exercised over her. J. E. Cropsey Cross Examined>---I drew the will at my office the day before she signed it. I drew it at her request. She was in the Village at David Howells she sent for me to come & see her. I went in & saw her. Kellogg King came & told me [&] I then went to Howells, saw the decd. When I was talking with her no one was present. I had no conversation with any person about making the will. Don't remember of seeing Mrs. King don't "[ditto mark] of having any conversation with her. Mrs Smead & I went into a room by ourselves & she told me what she wanted & she spoke to me about making her will. She told me how she wanted it made---I took a [missile] of what she wanted. She sd she had let Mrs Brown have some money about $2000 that Lewis was going to live there & that she wanted Mrs. Brown to have the $2000 " " was to furnish him with necessaries---living---clothing &c & at Lewises death it was to be Mrs. Browns. All the rest of her property was to go to Mrs. Brown. She gave no other directions. I told her I would draw the will & see her again. I dont think she sd anything else about her property. I asked her where I sho'd see her with a day or 2. She told me she was going to be at Kellogg Kings. I wrote the will & went up there & saw her there---I saw Mrs. King, Minerva Brown & Mrs Stout---dont recollect of seeing any others---She & I went off into a room by ourselves---I told her I had the will written & read it over & see how she liked it---I read it over to her [ ] She did not say she wanted to submit it to anyone else. she told me the will was correct & as she wanted it. I told her that it was necessary there sho'd be 2 witnesses to the will & that they sho'd see her sign it she asked me if I co'd not be one of them---I told her I could.---I told her she wod have to get some one else. she said she'd have to send for Uriah Spafford---then stopped & asked if Miss Stout co'd not be a witness. I told her yes, she called Mrs C.M.Stout in to the room---no one else in the room She spoke to Miss Stout & told her she wanted her & myself to be witnesses to this instrument. Phebe set down & signed it & then she got up & I said it is necessary you sho'd declare this to be your last will &c in our presence---we all stood around the table. She then declared it to be her last will & testament she seemed very positive about it--- & then I signed it & Miss Stout---I think that after She signed it she requested us to sign. it is my Strong impression that after she made the declaration & signed it she asked us to sign it as witnesses, I am not positive that she signed it before she asked us to witness it she was there in the room when we signed it. it was done on the same table. Mrs Stout signed it after I signed---I saw her sign it---Mrs Smead wanted to know if I wo'd take care of the will. I put it in my pocket---I know no one was in the room when she executed but us 3---Miss Stout left the room 1st dont know that we had any conversation after Miss Stout left. We went out into another room. Mrs. King was there---no one else that I know of J. E. Cropsey Re direct. I took the will & carried it home & kept it & delivered it to the Surrogate. it is in the same condition now as when executed by her---J E Cropsey. In the matter of the proof and probate of the last will & testa= } ment of Phebe Smead deceased } Cornelia M Stout Sworn ways.---I reside in Locke always lived there. I was well acquainted with Phebe Smead in her life time. She died in Locke. I was present when the instrument now shown to me & purporting to be the last will &c of said dec'd was executed---it bears date April 5th 1870. she signed it at Mr King's in Locke. I was present---Mr Cropsey & Mrs Smead were present. No one else---I signed the will at Mrs Smeads request She asked me to sign her last will & testament---I then signed it at her request---Mrs Smead & Mr Cropsey were present when I signed it---In my opinion she was of sound & disposing mind & memory, she was an aged Lady. I don't know that she was under any restraint. I saw Mr Cropsey sign it as a witness. I recollect of hearing Mr Cropsey {sign} read it in Mrs Smeads hearing & presence. We signed after the clause was read. E. M. Stout [x'd] I live in Locke with my father. I was at Mrs Kings at work the day the will was executed---it was April 5, 1870. I made an entry on the 5th of April 1870 that I witnessed the will. I am 19 years of age. I was 18 years old when I witnessed the will was 19 last Dec. on the 8th. I had been at work at Kings about a week---Mrs Smead was boarding there at the time. Mrs Brown was not there at the time the will was executed in the afternoon. don't remember what time Mrs. Brown came there, am sure she came. I was in the kitchen at work. Mrs Smead called me---She came to the kitchen door---s'd she wo'd like to see me---I went into the room---she asked me to witness that " she pointed to the paper on the table---I told her I would---Mr Cropsey read the last clause--she signed it after I came into the room. She was sitting at the table. I stood near her. I saw her sign---he signed it after she did---I then signed it he read the attestation clause before she signed it After Mrs Smead signed it she published & declare it to be her last will & testament---I dont remember any thing else she said---She asked me to be a witness [?] the room both before & after she signed the will She asked me to become a witness to the will before she signed it---After Mr Cropsey signed it. She asked me "Will you sign it now" I don't think I have talked this over with any one since. She published it as her will before & after she signed it. C. M Stout. Proponents rest Cayuga County ss. Minerva Brown being duly sworn says she will well honestly & faithfully discharge the duty of Executrix of the last will & testament of Phebe Smead late of Locke Cay. Co. dec'd according to law Sworn to Feb'y 6, 1871 Manerva Brown before me EAWoodin Clerk to Surrogates Court In the name of God Amen. I Phebe Smead of the town of Locke in County of Cayuga and State of New York of the age of Eighty two years being of sound mind and memory do make publish and declare this my last will and testament in the following manner to wit: First. I leave to my daughter Manervia Brown [have] two thousand dollars and my will is that the said money shall remain in her hand and that she shall at all times furnish at her house a home for my son Lewis Smead furnishing him with all necessary clothing food and medical attendance to make him comfortable during his life and at the death of my son Lewis then my will is that the two thousand dollars or so much as may remain [shal] be and belong to my said Daughter Manervia Brown---Second for fearing that the above sum of two thousand dollars will not a sufficient sum and compensation for the taking care of my said son Lewis I do further give devise and bequeath to my said Daughter Manervia Brown all the rest residue and remainder of all my property both real and personal of whatever name & nature to her and her heirs & assigns for ever hereby empowering her to take possession of the same and to sell all real estate & give a deed of the same and to sell & dispose of the personal property as she may [deein] best---And I hereby appoint my said Daughter Manervia Brown my sole Executor of this my last will and testament and I do hereby revoke any [?] any will or wills heretofore executed by me. In witness whereby I have hereunto set my hand & seal this 5th day of April one thousand eight hundred and seventy. Phebe Smead (SS) Witnesses J. E. Cropsey & C. M. Stout--- Subscribed by Phebe Smead the testator named in the foregoing will in our presents and at the time of making such subscription declared by the testator to be his last will and testament and each of us signed his name as a witness at the end of the will at the request of the testator and in here presence. J E Cropsey residing at Locke Cayuga Co. E.M.Stout residing at Locke Cayuga Co. I hereby certify that the preceding is a true record of the proceedings proofs and examinations had before me in the matter of the proof and probate of the Last will & testament of Phebe Smead late of Locke Cayuga County NY dec'd. And also of said will & that the same was recorded on the 11th day of February 1871. Wm B Woodin Surrogate