Captain Thomas Hemphill’s Will – The Last Page

This is the last 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. The copy of the contested will as it was transcribed into the court records began on page 2. Pages three and four continued the will copy and began to explain the reasons that the will was contested. Pages 5, 6, 7, and 8 continued the court testimony and page 9 wraps everything up ¹ .

Transcript

or disease, to Such a State of mental imbecility and weakness

as not to be able to dispose of his property rationally and

understandingly; they further should be Satisfied that at

the time the will was made, he had a mind & disposition

to make a will.  The Law required that a will to pass

lands should be subscribed by two disinterested witnesses

in the presence of the testator , when the will was not all

in the handwriting of the testator.  That if Logan one of the

witnesses was dead the law permitted evidence of his hand

writing to be given to the Jury, and they were at liberty to

infer from that evidence, and other evidence in the case

that he Signed in the presence of the testator.  The law

did not require proof that the will was read over to the

testator in the presence of the witness.  If the testator

acknowledged this paper to be his will to the witness and

he was in his senses and subscribed in his presence, by

his permission, it was all the law required to enable the

Jury to infer that he knew the contents.  If there was

any fraude or imposition practiced on him, it then would

not be his will.  The Jury found a verdict in favour

of the will and for the plaintiffs.  the defendants moved

for a new trial for misdirection which was refused

and the plaintiffs had judgment.  Defendants appealed

to the Supreme Court.

State of North Carolina

Burke County }

I Elam A Erwin Clerk of the

Superior Court of Law for Said County, do hereby

Certify that the foregoing Record is a complete

transcript from the papers which remain in my office

the Case Hemphill et al vs. Hemphill et al.

In testimony wherof I have hereunto set

my hand & affixed the Seal of the office at

Morganton the 4^th May 1830.

E A Erwin Clk

Wrapping it Up

This page wraps up the court case in which some of Captain Thomas Hemphill’s descendants contested his will.  The plaintiffs prevailed and the will, as written, was declared to be the last will and testament of Thomas Hemphill.

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