This is the second installment in a series of nine posts in which I transcribe the will of my Revolutionary War ancestor, Captain Thomas Hemphill.  In the first post, we learned that Captain Thomas’ will was contested by two of his children and a son-in-law, and that the date usually seen for his death may be wrong.  Let’s see what page two¹ has to offer.

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Transcript

This Cause was then Continued from Court to Court until

March Term 1830.  When came the parties aforesaid by their

Attorneys aforesaid and also a jury to try the Truth of the

Issue aforesaid to wit

1 Charles Duncan             5 William Connally            9 John Kincaid

2 Wm L Baird                     6 George Corpenning       10 James McCall

3 Willliam Murphy          7 James Avery                    11 Jacob Mull

4 John Fleming                 5 Benj Burnett                     12 James H Perkins

The Jury find the paper writing offered for probate is the

last will and testament of Thomas Hemphill deceased and

that he did devise. that the same was proven to be the last

will & Testament of the Said Thomas Hemphill dec^d by the

oath of Adam Jourdan one of the Subscribing witnesses there

to and by proof of the handwriting of Robert Logan the

other Subscribing witness, who it is proven is dead.  Also

proof of the handwriting of the Testator Tho^s Hemphill de^d.

and his acknowledgement that it was his last will &

Testament   Which is in the following words of [??????]

State No Carolina }          January 12^th 1824.  I Thomas Hemphill

Burke County }                 of Said State and County, do make &

Ordain this as my Last Will & Testament. And first I

will and bequeath my immortal Soul to God who gave it

and my Body to be buryed in a decent, and Christian

manner at the discretion of my Executors. And all the real

and personal property that God has bestowed on me in the

Course of his providence, I dispose of in the following man

ner (viz). In primus, I will and bequeath to my son by

Law John Young Three tracts of Land in Bumcomb County

in the upper Settlements on French Broad River. The titles for

Said Land will Show their situation and Dementions.

Item.  I will and bequeath to my Son Andrew one tract of Land

lying on Silver Creek known by the name of MacCluskeys tract

one tract in Buncomb County of which Postell formerly

lived, one tract in Said County lying on flat Creek below James

Whitaker’s land.  Item.  I will and bequeath to my Son Thomas

the whole of that s of Land which I bought from John Davidson

and on which I now live, also one hundred acres lying on

What I learned from this page

The copy of the will starts on this page, so we are starting to get to the meat of things.  The verdict in the appeal is also noted on this page:  the jury found the will to be valid in a session held in March 1830.

The will was dated 12 Jan 1824, so we know that Captain Thomas was still alive at that time and was a resident of Burke County, North Carolina.  (The area where he lived became part of McDowell County upon that county’s creation in 1842.)

He named John Young as his son-in-law and bequeathed to him three tracts of land in Buncombe County, NC.  John was married to Thomas’ oldest daughter, Rosannah.  (Asheville is in Buncombe County and borders present-day McDowell County.)

He named Andrew as his son and bequeathed him three tracts on land, one on Silver Creek, one in Buncombe County and one in Burke County.  Andrew was either the second or third son, after James.  Silver Creek, I believe, is in an area that remained in Burke County when McDowell County split off.  I need to look into this further.

He named Thomas as his son and bequeathed to him the homeplace, which is on land purchased from John Davidson and one hundred acres. . .

[I have two John Davidson’s in my database (they are father and son);  I must make a note to determine if either of them is the John Davidson from whom Thomas purchased the land.  These Johns are related to theJames Alexander of Buncombe County who married Rhoda Cunningham.]

Check back next Monday for page 3 of Captain Thomas Hemphill’s will.

Captain Thomas Hemphill is the ancestor who really got me interested in genealogy, but I’ve had his will sitting in my inbox ever since it arrived in the mail from the North Carolina State Archives in 2009.  Yes, almost three years.  Why has it been languishing, you ask?

Well, it’s not just a will – it’s a contested will – and all the court papers are included, so this little packet is 9 pages of legal-size paper that needs to be transcribed.  I needed something to motivate me to tackle this project and I can thank Valerie Elkins, my partner-in-crime in US-Records Study Group for assigning us to transcribe a will as part of our Familiar Records Practices chapter.  As soon as I saw the assignment, I knew that the time had come to pull Captain Thomas out of the inbox.

Since it is nine pages, I’m going to transcribe and post it one page at a time as a series.  Here’s page one ¹.

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Transcript

State of North Carolina

Burke County }      At a Court of pleas and quarter

Sessions formed and held for the County aforesaid at the

Court House in Morganton on the fourth Monday in

July AD 1824

The following issue was made up and entered on the record of the Said County Court in the case to wit.

Thomas Hemphill & Polly Hemphill

Legatees & Devisees in Support of the

Will of Thomas Hemphill deceased

Vs

James Hemphill & Moses Whitesides & wife}        Devisavit Vel Non

On the aforesaid fourth Monday in July 1824 Came the Said

Thomas Hemphill & Polly Hemphill by their Attorneys D. F.

Coldwell and A. L. Ervin Esquires. Then also came the said

James Hemphill & Moses Whitesides & wife.  This case between the

Parties had continued over from Court to Court until July

Sessions of the Said County Court 1826.  When Came the parties

aforesaid by their Attorneys aforesaid and also a Jury to try

the truth of the issue, to wit,

1 [???]by Young                5 Samuel Bowman           9 William Caswell

2  Joseph Burnett             6 Lazirus Philips                 10 Zachariah Downs

3  Seth Bradsher               7 Reddick Trumau            11 James McK Onail

4 Henry Paine                    8 Larken Hartley               12 John Rutherford

The Jury finds the paper writing produced is the last

will of and Testatment of Thomas Hemphill deceased.  From

which verdict the Said James Hemphill & Moses Whitesides prayed

an Appeal which was granted to Burke Superior Court to be

held at the Court House in Morganton on the fourth Monday

in September next, having entered into bond with approved

Security.

Copy Record

Attest

James Ervin Clk

The above record now secured and filed in the office of the

Clerk of the Superior Court September 25^th 1826

What I learned from this page:

There is not much of genealogical significance to be gleaned from the first page, but it does confirm some information found in other, derivative sources.  There is also one piece of crucial information implied that conflicts with other sources.  I will need to read the remaining pages to be sure I’m correct, but. . .

Parties to the case:

• Thomas Hemphill & Polly Hemphill – this would be Thomas McEntire Hemphill, Captain Thomas’ youngest son (and my ancestor), and Mary Hemphill, an unmarried daughter.
• James Hemphill & Moses Whitesides & wife – James is either the oldest or second oldest son (Samuel  is not proven; he may not be a son or if he was, he likely died before Captain Thomas).  Moses Whitesides is a son-in-law, having married Elizabeth Ann Hemphill (two of Moses’ brothers married two of Elizabeth’s sisters, so there are three Whitesides sons-in-law – just to keep things confusing).

Date of Captain Thomas Hemphill’s death: 

• I have his death date as 4 May 1826 and the source is his tombstone inscription.  HOWEVER, this particular stone was placed by the SAR in the 1990’s.  His original marker is completely weathered and illegible.
• James Hemphill, Moses Whitesides & wife originally brought suit over the will in July 1824.  They would not have done this unless Captain Thomas was deceased, would they?
• The case continued over until July 1826.  I think the death year on the tombstone has been picked up from this court document incorrectly and that it is really 1824; we’ll call this a hypothesis for now.

Stay tuned for more of this estate file in upcoming posts.

Walter Patton Hemphill, my great-grandfather’s eldest brother.

This photo has tentatively been identified as Benjamin Burgin Hemphill, my 3rd great-grandfather.  If you have information confirming or disproving the identity, please leave a comment.

Jesse Burgin was born 3 Apr 1803 and died 2 Feb 1890.  His wife, Rosamond Burgin, was born 26 Jan 1806 and died 11 Aug 1879.  They are buried at Bethel UMC-Old Cherry Springs Cemetery in Old Fort, North Carolina.  I believe that Jesse and Rosamond were first cousins, but I haven’t proven that yet.

Jesse’s sister, Malinda (Burgin) Hemphill, was my 4th great-grandmother.

On this date in 1859, Joseph B. Burgin obtained a marriage bond to wed his first cousin once removed, Margaret E. Burgin¹.  Their common ancestors were Benjamin Burgin and Leah Mann.

Joseph was Ben and Leah’s grandson, via their son Alney Burgin.  Margaret was Ben and Leah’s great-granddaughter; her father was Benjamin Logan Burgin and her grandfather was Major Ben Burgin.

Benjamin Burgin and Leah Mann are my 6th great-grandparents, making Joseph my first cousin 6 times removed and Margaret my 2nd cousin five times removed.  Margaret is also a step-cousin of mine on the Hemphill side; she is the granddaughter of Margaret Hemphill via Margaret’s first husband, James Young Dysart.  Margaret is my 3rd great-grandmother.

On this date in 1843 in McDowell County in the state of North Carolina, James M. Greenlee made application for a license for a marriage to be celebrated between him and Harriett Rice.  James, my second cousin three times removed, was the son of David Washington Greenlee and Mary Howard McEntire and the grandson of Thomas Young Hemphill McEntire and Martha Hemphill.

Transcription

North Carolina

McDowell County

Source:  McDowell County, North Carolina, “North Carolina Probate Records, 1735-1970″, will book entry for Thomas Bratcher Hemphill pp. 554-555, digital images no. 308-309; “Wills 1869-1903,” digital images, FamilySearch (http://www.familysearch.org: accessed 30 June 2011).

Mary Elizabeth (McEntire) Hemphill – my 2nd great-grandmother.

Malinda Josephine (Hemphill) Butler – my 2nd great-grandmother.