Will Contested

The following is a lawsuit filed Aug 4, 1868 in Giles County Tennessee and is found in the Chancery Court Records Book U Pages 32 to 41. A file of this case and related material is available at the Giles County Old Records Office.

Wm. Ezell Vs Wm. P. Kerr and others

To the Hon. Jon. C Walker Chancellor & holding the Chancery Court at Pulaski, for the County of Giles in the State of Tennessee.

Wm. S. Ezell, & Cary Gilbert executors of Henry Kerr Decd. and Mary Kerr, Wm. S. Ezell & Nancy Ann his wife of Giles County, John W. Kerr of Haywood County and James H. Kerr of the State of Texas


Wm. P. Kerr of the State of Texas, Francis B. Kerr of Fayette County Tennessee, Isaac P. Kerr of the State of Mississippi, and the heirs at law & distributes of Lucinda McKenzie Decd. of whom James Franklin McKenzie & Mary McCallum wife of _______________McCallum of Henderson County, William McKenzie who resided in West Tenn, Eliza McKenzie & others whose names & residencies are not known.

Complainants respectfully shows to the Court that Henry Kerr died at his residence in Giles County about 30th of November 1857, having made his will which was duly probated in the County Court of said county at or about its February Term 1858 & complainants Wm S. Ezell & Cary Gilbert two of the Executors nominated in said will qualified as such, and accepted said Trust. The testator left him surving his widow the complainant Mary Kerr, his children complainants Jno. W. Kerr, James H. Kerr and Nancy Ann Ezell & defendants Wm. P. Kerr, Francis B. Kerr, Isaac P. Kerr, the children of his deceased daughter Lucinda McKenzie who was the wife of Ulysses McKenzie both of who died many years before the testator his only Legatees & Devisees, distributes & heirs. The testator was the owner at the time of his death of personal property & assets together with about ten Negro slaves and a tract of about 187 acres of land on which he resided. The Executors went forward and settled up his estate, & made their settlement in the County Court of Giles County a copy of which will be filed if necessary before the hearing of the cause, & passed over to the widow, the property to which she was entitled under the will during her life, and in fact & in face discharged all the duties required of them by the will, to be performed during the life Estate of the widow. Complainants further represent that by the provisions of the will, the property remaining at the death of widow is devised & bequeathed to the complainants James H. Kerr, John W. Kerr, & Nancy Ann Ezell—that the defendants have no interest in the same under the will.

Complainants further represent & show to the Court that since the settlement of said Estate during the late civil war, as they are informed & believe the will itself & the record of it in the County Court together with the probate of the same have been destroyed, & without the agency consent or procurement of Complainants. They suppose the will & record of its probate as well as the record of the will were destroyed near the close of the war when the offices of the various courts were sacked, & their records & files of papers destroyed by soldiers. They represent that diligent search has been made in the County Court Clerks Office & neither the will nor the record thereof, nor the probate of the same can be found, as is evidenced by the certificate & affidavit of D. A. Wilbourn, the present Clerk of said Court herewith filed marked Exhibit A & made a part of this Bill. Complainants are advised that the establishment of said will is necessary as well in the chain of title to the property disposed of by said will as to the correct management & final settlement of the estate remaining to be disposed of at the death of the widow, as also for the protection of the executors. And they are advised that the court is the proper forum in which to supply the copy of said will, and records and they desire that the same may be done under the orders of the court. Complainants further represent & show that they have not a certified copy of said will in their possession or under their control, but they represent & show that the copy herewith filed marked Exhibit "B", purporting to be a copy of said will, is a substantial copy of the same and they ask that the same be set up as the will of the said Henry Kerr Decd. Under the orders & decrees of this Court. They further represent that they are informed & believe that the Defendants Francis B. Kerr has a certified copy of said will & they ask that he be required to answer whether or not he has said copy in his possession or under his control & if he has the same in his possession or under his control that he re required to produce the same & to file the same in this cause with his answer or otherwise, and has the same when filed be substituted for said unofficial copy of Exhibit "A" & that the same be set up & established under the orders & decrees of this court. Complainants further represent that Lucinda McKenzie, died many years before the testator leaving several children, the number, names & residence of all of which are unknown to complainants—they represent that the children of the said Lucinda as far as they know them are as follows, James Franklin McKenzie, Mary McCallum wife of _______________McCallum who when last heard from resided in Henderson County Tennessee----William McKenzie who when last heard of resided some where in west Tennessee but the county in which he lived is unknown & his residence is now unknown, besides these there were several children whose names & residence are unknown.

The premises considered complainants pray that the parties named as defendants in the caption be made defendants to this Bill---that copy of Bill & subpoena issue & that publication be made for the non resident & unknown defendants, and whose residences is unknown, to the end that they be & appear & answer at the next term of this Court, that defendant Francis B. Kerr be required to answer whether he has a copy of said will in his possession or under his control that he be required to produce & file the same with his answer or otherwise as this Court may order. And that upon the hearing of the cause your Honor decree that said substantial copy Exhibit B or the certified copy in the possession or under the control of the said Francis B. if the same exists & is produced, or set up & established under the orders & decrees of this Court--& that the will of said Henry Kerr, & the record & probate of the same be set up & established according to law & the practice of this Court, & for such other & further relief as shall be must & proper in the premises.

Exhibit "A"

Personally appeared D.A. Welbourn before me A. Cox Clerk & Master of the Chancery Court at Pulaski, Tenn. & made oath that he is the Clerk of the County Court of Giles County Tennessee. That he has made diligent search in his office for the will of Henry Kerr Decd. and cannot find the same, and believes the same lost or destroyed. That he can find no record of the same in his office, nor any record of the probate of the same. He further states that the will books of the office in which wills were recorded previous to the year__________________as well as the books containing the minutes of the Court, & many papers of the office are not in the office, & he has been informed & believes they were destroyed during the late war, & that the same was lost or destroyed without his knowledge, procurement or consent.

Sworn to & subscribed before me 8nd August 1868-----D.A. Welbourn

State of Tennessee

Giles County--------- This day personally appeared before W. S. Ezell one of the complainants in the foregoing Bill mad oath the facts stated in the foregoing Bill as of his own knowledge are true & those stated an information he believes to be true.

Sworn to & subscribed before me 8nd August 1868------Alex Cox.
Papers were delivered to the Sheriff of Henderson County on the above matter his response follows
Lexington, Tenn
March 9, 1868

Mr. A. Cox

Dear Sir,

Enclosed please find names of Heirs etc……………………
J. F McKinzie, Polly McCollum wife of Absalom McCollum. Louisa Spears wife of John Spears. Wm. McKinzie, John H. McKinzie. Martha Presely wife of Anderson Presley, Tennessee Kent wife of Frank Kent. Citizens of this County. Please send my fees & I will attend to the matters immediately.

Yours C. W. Moore-Shff.