Estate of B. H. Smith [Birt H. Smith]

By Sandra Smith Gwilliam, sandyscouter@hotmail.com

Submitted by Gloria B. Mayfield, Rusk Co. Coordinator

FHL film # 1020932
Rusk County Court probate records
Volume J
No. 747 pages 8-14

Estate of B. H. Smith [Birt H. Smith]
page 8
Petition: The State of Texas, County of Rusk
In the probate Court March Term 1863. To the Hon. A. J. Smith, Chief Justice of said County the petition of A. J. Smith a citizen of said county would represent unto your Honor that one B. H. Smith departed this life in the Month of February 1863 leaving a last will and testament in which he appointed your petitioner the executor of the same. petitioner prays that your Honor probate or admit said will to probate at the next term of said Court and that you appoint him executor of said Will and grant all the relief that he is entitled to in the promises and he will ever pray.
N. G. Bagly

Endorsed: Estate of B. H. Smith Petition to probate last will
filed March 7th /63
J. N. Still ccc Rusk county

Notice

Notice: Whereas W. J. Smith has filed his petition in the office of the Clerk of the County of Rusk County praying for the probate & the Executor of the will of B. H. Smith deceased. Notice is therefore hereby given to all parties interested to be and appear at the nest term of the County Court of Rusk County pertaining to estates of deceased persons etc [?]
to be holden on Monday the 30th day of March A. D. 1863, at the courthouse in the town of Henderson, the county seat of said county then and there to show cause if any they can why said application should not be granted.
Henderson March 19th 1863. J. N. Still ccc Rusk Co.

Endorsed: Estate of B. H. Smith Notice filed March 30th 1863
J. N. Still ccc Rusk co

Order to probate will: Estate of B. H. Smith decd. The application of W. J. Smith praying that the last will and Testament
of B. H. Smith decd may be admitted to probate and recorded and that Letters Testamentary may issue to him upon said estate coming on to be acted upon and considered of by the court. And it appearing to the court that the requisite Notice of said application has been given and that there is no opposition [word crossed out] to said application and W. G. Bagly one of the subscribing witnesses to said Last will & Testament appearing in open Court and making affidavit according to law the execution and publication of said will and [continued on page 9]

Testament which affidavit is written thereon. It is therefore ordered by the Court that said Last Will & Testament be admitted to probate and recorded, and that the same be established and declared to be the last will and testament of BH Smith decd. And there[inkblot]upon it is ordered by the court that letters testamentary issue [sic] to said W. J. Smith the executor in  said will named upon his entering into bond payable and conditioned as the law ["requires" crossed out] directs in the sum of [no sum is mentioned.]

Will: The State of Texas, County of Rusk.
In the name of God, Amen. I Birt H. Smith knowing the uncertainty of life and the certainty of Death, do make and constitute this my last will and testament.

1st It is my will and desire after my decease that my body shall be decently interred.[sic]
2nd that all my Just debts funeral and expences [sic] of last sickness shall be first paid out of my means available, that I may leave at my death.
3rd I will and bequeath all my real and personal estate to the following named persons to wit.

WJ Smith, Newton Smith, the heirs at law of Joseph Smith deceased and the heirs at law of Francis Timmons to wit.

Barsheba Ann Timmons & Hannah An[n] Timmons being the only heirs I intend to provide for of said Francis Timmons. Also Elizabeth Morehead, daughter of Bersheba Morehead. Also the heirs of Francis M [Marion]. Smith by him begotten. [Sandra's note: There is no record of him ever being married or having heirs.]

4th Said estate to be divided as follows to wit.
W. J. Smith, Newton Smith the above named heirs of Mrs. F. Timmons as the representative of oath Mother [?], to have one share. The said W. J Smith to have one share which is to be equal to the amount of both of the above named Timmon's heirs. Newton Smith the same amount as W. J. Smith, the Joseph Smith heirs, the Francis M Smith heirs and the heir of Mrs. Barsheba Morehead above and heretofore mentioned to have as the representatives of their parents the same amount as the heirs of Mrs. Timmons and to be divid [sic] as designated to them and no more.

5th It is further my will and desire that this will shall be probated and recorded in the probate Court of Rusk County and that an inventory
[continued on page 10]

page 10
No. 747 Estate of B H Smith

of my estate shall be made and returned in like manner and that the probate Court shall have nothing more to do with my said estate.

6th I further ordain and appoint W. J. Smith my executor to carry out the provisions of my said last will and Testament. In testimony of which I have hereto set my hand and seal using a scrawl for a seal this the 13th day of Sept A. D. 1861 [signed] B H Smith [scrawled seal]
Test: NG Bagly J. E. Jones

The State of Texas County of Rusk

This day personally appeared in the County Court of said County of Rusk & in open court N. G. Bagly one of the subscribing witnesses to the foregoing last will & testament of B H Smith decd. Who being by me duly sworn upon his oath says that he saw the said BH Smith subscribe the said last will & testament, that he subscribed the same in the presence of him the said Bagly & also in the presence of J. E. Jones the other witness thereto that that [sic] the said B H Smith then and there declaired [sic] in the presence of him, the said Bagly & the said Jones signed the same as witnesses in the presence of said B. H. Smith and at his request. Affiant [applicant?] further  swears that in his opinion the said B. H. Smith was at the time he so subscribed and published said will of sound & disposing mind and memory.

Sworn to & subscribed before me. N G Bagly in open Court April 1st 1863
JN Still cc Rusk co

Endorsed Will of B Smith filed March 7th/63
JN Still ccc Rusk co.

Page 11

Petitions to qualify: The State of Texas County of Rusk Probate Court August term 1863
To the Hon. A.J. Smith Chief Justice of Rusk County Texas.

Your petitioner W. J. Smith a citizen of said county & state respectfully represents [?] to the court that heretofore to wit on the 1st April 1863 the last will and testament of B H Smith was duly admitted to Probate & recorded by your Honorable court and in conformity with the provisions of the same petitioner was by order of this court appointed executor of said last will & testament. Petitioner states that he has not qualified within the time the law requires for the reason that he has been absent in the Military service of the Confederate States and was not in Rusk County at the time said order was made in your Honorable Court probating said will and appointing Executor. Thereof and that this term of the court is the first one that he has been held service he returned from the army.  In view of this state of facts, your petioner [sic] respectfully asks your Honor to grant him leave to qualify now as the executor of said last will and testament which he is ready and willing to do. WJ Smith
Sworn to & subscribed before me August 31st 1863
J. N. Still ccc Rusk co


Estate of B. H. Smith Petitioner for leave to qualify as Executor
Filed Aug. 31st 1863 J. N. Still ccc Rusk co.

Pg. 11 continued

Estate of B. H. Smith Petitioner for leave to qualify as Executor.
Filed Aug 31st 1863 J. N. Still ccc. Rusk County

Order: Estate of B. H. Smith decd. Now comes W. J. Smith and presents to the court his application asking the court to permit him to qualify as the executor of said estate for season set forth in said application which being considered of by the [word left out?] is granted. It is therefore ordered by the court that the said W. J. Smith be permitted to give the bond and take the oath as executor of said estate in conformity with the order made at the March term 1863 of this court. It is further ordered by the Court that W. H. Estill, Bennett Boggess & John P. Grigsby be appointed appraisers of the
property belonging to said estate.

Bond: The State of Texas, County of Rusk
Know all men by these presents that __ W. J. Smith as principal and B. Boggess, & I. N. Smith as surties [sic] are held and firmly bound unto the chief Justice of the [county] of Rusk in the sum of twelve thousand dollars for the payment of which will and truly to be made unto the said chief justice. We bind ourselves our heirs, executors and administrators
jointly and severally

page 12
firmly by these presents signed with our hands and sealed with our seals the seals being scrawls this the 31st day of August AD 1863. The condition of this obligation is such that whereas the above bound W. J. Smith has been appointed Executor of the last will and testament of B. H. Smith deceased.

Now if the said W. J. Smith shall well and truly perform all the duties required of him under said appointment, then this obligation shall be null and void otherwise to remain in full force and effect.

I approve this bound [bond?] August the 31st 1863 A. J. Smith Chief Justice
R. C.
W. J. Smith scrawled seal
B. Boggess scrawled seal
I. N. Smith scrawled seal

I do solemnly swear that the writing which has been offered for probate is the last will of B. H. Smith decd. So far as I know or believe and that I will well and truly perform all the duties of executor of the said will. W. J. Smith swears to
and subscribed before me this the 31st day August A. D. 1863.
A. J. Smith chief Justice R. C. W. J Smith
Estate of B. H. Smith Bond filed Aug 31st 1863
J. N. Still ccc Rusk co.

Order to appraise: The State of Texas, County of Rusk.
To the Sheriff of said county greeting. Whereas the August term of the County Court pertaining to the estate of deceased persons and order was made appointing John P. Grigsby, W. H. Estill, Bennett Boggess
appraisers of the property belonging [to] the estate of B. H. Smith decd.

You are therefore hereby commanded to notify the said John P. Grigsby, W.
H. Estill & B. Boggess that they proceed forthwith to appraise the property
belonging to the said estate and that they make due returns make of this writ
within the time prescribed by law showing how you have executed the
same.

Given under my hand and seal of said county at office in Henderson this the
31st day of August
A. D. 1863 J. N. Still ccc Risk Co.

We accept service on the within commission Sept 11 AD 1863
Executed the within named excepting [accepting?] service Sept 11th 1863
M. L. Durham Shff. By. W. L. Park Deputy
J.P. Grigsby
B. Boggess
W. H. Estill
estate of B. H. Smith




p. 13
Estate of B. H. Smith deceased

The State of Texas, County of Rusk
In county court pertaining to the estate of deceased persons etc. Aug 1st term A. D. 1863. To all to whom these presents shall come know you that W. J. Smith having filed his petition in the office of the clerk of the county court praying that the last will and testament of B. H. Smith deceased late of the State of Texas and county of Rusk may be admitted to probate and accorded and that letters testamentary upon said estate may issue to him and the said W. J. Smith having complied with all the requirements of the law in such cases made and provided and we being desirous that the said estate may be well and faithfully kept and preserved do hereby grant unto the said W. J. Smith of the state and county first above written, full power as Executor of said will to ask for recover and secure all the effects of the estate of the said [word left out?] W. J. Smith to make a perfect and just inventory of the same and to fully carry into effect the provisions of said
will.

L. S.
In witness whereof I have I have [sic] caused the seal of the county Court of Rusk County to be hereunto affixed at office in Henderson on the 31st day of August A. D. 1863
A. J. Smith Chief Justice Rusk County Texas
Test: J. W. Still clerk of the county Court Rusk County
Estate of B. H. Smith copy of letters filed Aug 31st 1863

Inventory & Appoint

The State of Texas County of Rusk.

To the Hon. A. J. Smith Judge of the Probate Court of said county. The undersigned having been appointed appraisers to value and appraise the property belonging to the estate [of] Birt H. Smith deceased beg leave to report that the only property pointed out to us by by [sic] W. J. Smith the administrator is a tract of six hundred and ten acres of land in Rusk county being a part of the Head Right League of James Smith decd. Situated South of the town of Henderson. Said tract includes the late residence of said James Smith decd containing about an Hundred acres of cleared land and we value the whole tract of 610 acres at twelve dollars and fifty cents per acres making seven thousand six hundred and twenty five dollars.

Page 14
Estate of B. H. Smith Decd

$7625.00
Janry 16th 1863 [should be 1864]

W. H. Estill
B. Boggess appraisers


The State of Texas County of Rusk
Before me the undersigned authority this day personally came W. H. Estill and B. Boggess appraisers of the property belonging to the estate of B. H. Smith declared _____ being duly sworn days on oath that the value placed on the above property is the true and correct value of the same to the best of their judgement and belief.
W. H. Estill
B. Boggess
Sworn and subscribed before me January 16th 1864 J. N. Still ccc Rusk Co

The State of Texas County of Rusk
Before me the undersigned authority this day personally came W. J. Smith, executor of the last will and testament of B. H. Smith deceased who being duly sworn says on oath that the foregoing is a just and true inventory of all of the property and effects of said estate that have come to his knowledge that there are no notes or accounts or money left on hand due said estate that he has any knowledge of .
W. J. Smith swore to & subscribed before me.
January 16th 1864 J. N. Still ccc Rusk Co.

Endorsement: Estate of B. H. Smith deceased Inventory & appointment filed
January 16th 1864
J. N. Still ccc Rusk Co.