The
following is the transcription (as best as I could read the original)
one of the original complaint filed by Christiania Smith:
To
the Honorable Thomas S. Williams, Chancellor for the Eastern Division
of the State of Tennessee, now sitting in Kingston -
Humbly
complaining _____ unto your Honor your Oratrix Christiania Smith, a
citizen of Roane County, State of Tennessee, that on this 21st of
February 1843. She filed her Original Bill in the Chancery Court at
Kingston against a certain John Nethery, also a citizen of Roane
County, Tennessee, for the purpose of having an article of agreement
cancelled, which the said John Nethery had obtained from your Oratrix
by practicing a fraud upon the understanding of your Oratrix. Your
oratrix charges that the said Nethery intermarried with her youngest
daughter and being without a home, was taken to the house of your
Oratrix, under the expectation that he would be of service to her, as
well as an accommodation to himself, as your Oratrix was an aged
Christiania was in John Smith, Jr.'s home in the 1860 Census.
She is thought to be buried beside John in the King Cemetary,
Rockwood, Tennessee.
The following are notes from Marilyn
Mcluen Files:
"The following is a verbatim copy of the
original paper found among the records of Roane County, Tennessee.
Some of the writing is extremely good and some is very poor. I shall
attempt to make explanatory remarks as I copy. M. Mc."
State
of Tennessee Roane County
Be it remembered that on the twenty
first (blank) day of September 1843, I M S Millican one of the acting
Justices of the peace for the County of Roane aforesaid by virtue of
the power in me vested by the Commission hereto prefixed, to examine
all witnesses whatsoever, as well on behalf of CHRISTIANA SMITH,
Complainant, as of JOHN NETHERY, Respondent, or either of them, in a
certain matter of controversy depending on the Chancery Court holden
at Kingston in County of Roane and State aforesaid; did cause to come
before me at the house of JOHN SMITH in Roane County ANTHONY SMITH
aged about fifty one years, AGGATHA GIBBONS aged about fifty three
years, WILLIAM BROWN aged about sixty one years, E.G. SEVIER aged
about thirty eight years, and ELIZA F. JOINER aged about twenty
years, as witnesses on behalf of CHRISTIANA SMITH Complainant, in
said cause, and the said ANTHONY SMITH, AGGATHA GIBBONS, WILLIAM
BROWN, E. G. SEVIER AND ELIZA F. JOINER being duly sworn on the Holy
Evangelists of Almighty God, and cautioned by me to depose the truth
the whole truth and nothing but the truth, deposeth and saith as
follows,
ANTHONY SMITH be sworn in due form deposeth as follows,
1.
Question by Complainant. If you know anything about the execution of
an article of agreement between CHRISTIANA SMITH and JOHN NEATHERY,
(Note: Neathery is spelled this way at this place and I have not
added the "a". M. Mc.) please tell all you know about it
and under what circumstances it was executed.
(page 2) 1.
Answer by A. Smith. I saw an instrument of writing that Mr. Nethery I
suppose had wrote a kind of an Article between him and my mother as
he stated to me; Mr. Nethery came down one evening and told me that
mother wanted me to come up the next morning and he insisted on my
coming. I went up and he in a short time handed me an instrument of
writing which I looked over in silence two or three times as well as
I recollect he stated then that mother wanted advice concerning this
article or instrument. I told them that I had never saw an article of
the kind and I would be no counsel nor give no advice in it further
than if she was not satisfied - for her not to go into it until some
person saw it who could tell her whether there was any advantages in
it or not: I told her that there was men handy that could tell her
about it and I knowed or believed they would come: I think as often
as three times I cautioned her not to go into it till some person saw
it, that did understand it and could tell her whether there was any
advantage in it or not. They both Mr. Nethery and his wife then spoke
one said there was no advantage in it and the other said there was no
advantage wanted. As well as I recollect there was something stated
probably about the mill and about possessions - mother (page 3)
stated that she wanted RALPH to stay in the house that he was in in
and attend to the mill as well as I recollect Mr. Nethery replied and
made answer and said to be sure that he must stay there or somewhere.
There was several things said at that time as well as I recollect
concerning the mill. Mr. Nethery then stated that he had not thought
of the mill and probably said just let it go so and let it be
verbally understood that he was to have noth___ to do with the mill
or something to that amount. I probably stated then that that would
be of no force if the article was gone into - he (Nethery) then
interlined the article that the mill was to be expected out of it. I
recollect of hearing mother state a time or two (but do not recollect
at what time it was) that she did not want the scrape of a pen - that
she wanted to keep possession herself.
2 Question by same -
Who assigned that article of agreement on the part of your mother.
2 Answer by same - I assigned on the part of her at her
request.
3 Question by same - Was there any person called
into advise before the article was assigned besides yourself
3
Answer by same - There was not.
(page 4) 4 Question by same -
What is the age of your mother CHRISTIANA SMITH and what is her
capacity to transact business.
4 Answer by same - From the
record it appears to be seventy three years - I should suppose her
capacity to transact business was very small as she appears to be
very frail and quite illiterate.
5 Question by the same - If
there was any remarks made by your mother about this Contract at the
time her signature was put to the article please state what they
were?
5 Answer by same - The article or part was read and Mr.
Nethery said that was about their bargain. Mother said she did not
know that she had made any bargain.
6 Question by same - Do
you know whether dower has ever been assigned or layed off to your
mother out of the estate of JOHN SMITH, deceased, or not.
6
Answer by same - It never has that I know of.
1 Question by
Respondent Nethery - At what time was the article above alluded to
entered into.
1 Answer by same - Sometime about the first of
January 1842 as well as I recollect.
(page 5) 2 Question by
same - Did your mother request that any other person should be sent
for as counsel at the time the article was assigned.
2 Answer
by same - Not that I recollect of.
3 Question by same - Are
you sure that both myself and wife replyed at the time you stated
that there was no advantage wanted.
3 Answer by same - I am
sure that you both did reply - and one stated there was no advantage
in it and the other that none was wanted.
4 Question by same
- Did i not read the article of agreement to you and to your mother
after you had examined it.
4 Answer by same - You read the
article to us or a part of it. I cannot say that it was all read or
that it was not.
5 Question by same - Was it not after the
article was read that your mother raised an objection because that it
was not inserted in the article about RALPHs continuing to live in
one end of her house.
(page 6) Answer by same - It was on
that day that the article was assigned that mother made the statement
that she wanted no writings not the scrape of a pen was the language
Respondent object to answer as not being an answer to the question.
Objection overruled by the Commissioner and refered to the Hon.
Chancellor.
7 Question by same - Did your mother not make her
own mark on the article of agreement.
7 Answer by same - She
touched the pen with her fingers at your suggestion.
8
Question by same - Do you believe that your mother has common sense.
8 Answer by same - I suppose owing to her advanced age and
her being Iliterate she might be said to have common sense.
9
Question by same - Are you not interested in the event of this suit?
9 Answer by same - Not any further than for the benefit of my
mother personally myself I have no interest in it.
(page 7)
10 Question by same - Did you ever see the article between myself and
your mother after you assigned the same before you entered into
another with her for the same property mentioned in the one you
signed for her.
10 Answer by same - No I never saw the
article between the times.
11 Question by same - Is the
article here presented to you the one that you assigned your mothers
name to.
11 Answer by same - I acknowledge that the signature
of CHRISTIANA SMITH to the article here presented was signed by me.
(The following "12th Question by same" has been
crossed through with a pen but can be read. M. Mc.)
12th
Question by same - If you never read the article after you assigned
it for your mother and before you entered into one with her yourself,
how did you asertain that it was so full of fraud as to cause you to
enter into a new contract for to extricate your mother from the
first.
12 Question by same - Did you understand the contract
between me and your mother at the time you assigned the same.
12
Answer by same - I did not understand it.
13th Question by
same - What were your motives for entering into another article with
your mother embracing the same property which she had contracted to
me.
(page 8) 13 Answer by same - My mother become
dissatisfied and insisted on me and brother JOSEPH to attend to that
business. Mother had some counsel from some source to do that way. I
insisted not to have anything to do with it, she still insisted for
us to do so and for her satisfaction we done so.
14th
Question by same - Do you know why your mother became dissatisfied
with the contract between myself and her.
14 Answer by same -
I do not know why it was that she became dissatisfied more than what
I have heard her say.
15 Question by same - Of your knowledge
do you know of my having at any time mistreated old Mother Smith.
15 Answer by same - I do not know that - I ever saw you
mistreat her unless it was one day that she went there for her things
and you (the wordss "would not" have been drawn though with
a pen and "you did appear willing to give them up" have
been written in above.)
7 Question by the Complainant - Where
does CHRISTIANA SMITH reside and from whom does she get or receive
her support
7 Answer by same - She resides here at the place
with BROTHER JOHN and gets her support from him as I suppose. I
expect she gets her bread from the mill.
8 Question by same -
How long has she been absent from the house of Mr. Nethery.
(Inserted here between pages 8 and 9 is the "article"
between CHRISTIANA SMITH and JOHN NETHERY referred to above. No doubt
it was introduced as evidence. I will continue with page 9 and attach
the Exhibit (Article) at the end of the deposition. M. Mc.)
(page
9) 8 Answer by same - I think between twelve and fifteen months is as
near as I can come at the time.
Respondent Nethery objects to the two last Questions as not being
proper at this place as they did not grow out of the cross
examination.
Further this deponent saith not.
(s) ANTHONY SMITH
AGGATHA GIBBON being duly sworn states
1
Question by Complainant - If you know of any of the grandchildren of
CHRISTIANA SMITH
being prevented from getting fruit out of the orchard of MAJ. JOHN
SMITH Dec by JOHN NETHERY since he has been in possession of that
place tell all you know about it.
1 Answer by AGGATHA GIBBONS
- I never have saw him interrupt any of the children but once and
that was last Season: I seen some of JOSIAH SMITHS children and JOHN
SMITHS oldest boy in the orchard one Sunday last year and I saw JOHN
NETHERY walking after them and he drive them out and I suppose for
some of them come out crying - me and mamma was at JOS.
2
Question by same - From your mothers age and infirmity do you suppose
her capable of making a contract respecting the management of real
property.
2 Answer by same - I would not suppose she was. I
am a good deal younger than her and I don't feel capable.
(page
10) 1 Question by Respondent NETHERY - Do you believe that our Old
mother Smith has comon sense.
1 Answer by same - I believe
that she has had as much sense as common people and has as much now
as common people of her age and education and so fourth.
2
Question by same - Do you of your own knowledge know of your mother
having at any time made bad contracts by which she wasted her
property.
2 Answer by same - I do not know of mother having
made any contracts of any importance.
3 Question by same -
What is the state of feeling between myself and ANTHONY SMITH.
3
Answer by same - From what little I have understood today I believe
you are both mad with one another.
4 Question by same - Are
you not expecting to get in possession of the place where I now live
should the agreement between myself and your mother be disolved.
5
(this is the number given in the document, number 4 Answer by same
has been skipped, however, this appears to be the answer to number 4)
Answer by same - No thank God I am not. I hant the leas idea of ever
living there again certain and sure.
6 Question by same - Do
you of your own knowledge know of my having mistreated your mother
CHRISTIANA SMITH.
(Page 11) 6 Answer by same - No I don't.
7 Question by same - Are you in any way interested in the
even of this suit.
7 Answer by same - Nothing more than I
want Mother to have her right. I don't want any of it myself.
8
Question by same - Did you ever persuade; or do you know of any other
person persuading her to leave her home.
8 Answer by same - I
no I never did persuade her neither do I know of any person that did.
9 Question by same - Did you never tell her that I was by
means of my contract or conduct or otherwise cheating her out of her
living and property and that I was in many repects a very great
rascal.
9 Answer by same - I told her to guard against you
before it was done or you would do it - I told her afterwards that
you had done her Just as I had told her you would do that had got all
that she had.
10 Question by same - Have not your feelings
for a long time been very ill towards myself.
10 Answer by
same - They have.
and further the deponent saith not her her
AGGATHA x
GIBBONS
mark
(page 12) WILLIAM BROWN being duly sworn says
1
Question by Complainant - If you know anything about a demand of
property made by MRS. SMITH and reprisal by MR. NETHERY please tell
all you know about it.
1 Answer by WILLIAM BROWN - In the
summer or fall of 1842 I was requested to visit the complainant MRS.
SMITH. I found her at her sons JOSIAH SMITH. She mentioned to me her
object in sending for me was to get some advice as to the course she
ought to pursue to git the possession of her property which she said
was at MR. JOHN NETHERYS saying at the same time that MR. NETHERY
would not permit her to take it way from his possession. I then
observed to her I thought she was certainly mistaken. If she would go
with me to MR. NETHERRYS (sic) I felt pretty well assured that
NETHERRY (sic) would agree to give her up her property. Accordingly
we walked up to NETHERRYS and she then requested of NETHERRY to let
her take her beds and some other articles I think among other things
there was a chest she wished to git. MR. NETHERRY at first replied he
would give her answer at some convenient time but finally refused
that MRS. SMITH or any person for her should remove any of her
property - that she was welcome to come back and stay at his house
and that he would treat her well, she replied she could not stay with
him amongst other reasons said his abuse of her children in her
presence was such as to make her miserable.
(page 13) 2
Question by same - From your acquaintance with MRS. SMITH taking into
consideration her age and bodily infirmity would you suppose she was
capable within the last two years to have made a contract touching
the management of her property.
Answer by same - MRS. SMITH
has for some two or three years past been under considerable
affliction. She is pretty far advanced in life. I think her in
possession of very little inergy from the State of her health and her
age. I am bound to think she would be very credulous and easy
pussuded into measures that she did not understand thier (I cannot
read this word, M. Mc.). I would not therefore believe her fully
competent to manage matters of importance.
1 Question by
Respondent - Do you believe that Old Mother SMITH has ordinarry
natural sense? And would she not be capable of understanding a common
plain article of agreement.
1 Answer by same - I am not
prepared to give a definite answer to this question than the one
given to the second question propounded to me by complainant.
2
Question by same - At whose instance did you go to the house of
JOSIAH SMITH as above stated.
2 Answer by same - MRS. SMITH
and her son ANTHONY sent for me as I now think.
3 Question by
same - Did not ANTHONY SMITH and JOSIAH SMITH complain much in your
hearing about the way that I had treated their mother and seek
counsel of you. (Page 14) By which they might remove me from the
place where I lived, please state all you (sic) about it, and state
the counsel if any you gave.
3 Answer by same - I may have
heard both ANTHONY and JOSIAH SMITH speak of your having taken the
advantage of the complainant as to any particular ____________ of
theirs or of any determination other than to try and have their
mother reinstated to her former situation I think they have both
asked me to advise them the course that ought to be persued to
restore their mother to her rights. I have I think refered to lawyers
for the purpose of regulating this matter.
4 Question by same
- Did you not advise them to take up the matter and have their mother
restored to their home.
4 Answer by same - I have no distinct
recollection about it.
5 Question by same - Do you know
anything about the State of feeling between myself and ANTHONY SMITH.
5 Answer by same - From what I hear from the parties I should
consider that they were hostile and further this deponent saith not.
(s) W. BROWN
(page 15 is not numbered)
ELIZA f JOINER
being duly sworn states
1 Question by Complainant - Do you
know of JOHN NETHERY preventing any of the family of the SMITHS from
getting fruit out of the orchard where he lives.
1 Answer by
ELIZA F. JOINER - Yes sir I do. There was myself and MRS. SMITH and a
girl that she has living with her and two of HENRY KINDRICKS
daughters went over one Wednesday morning as well as I recollect it
was the 29 day of August but I am not certain 1843. MR. NETHERY came
out to us and wanted to know where them apples was going to. He said
that if myself and HENRY KINDRICKS daughters or SARAH KEY wanted them
we were Just as well come to them as him or his children - but if
they were going to them god damned Sugers he was going to have an
emptying spell. Some of the girls asked him who he called Sugers and
he said JO SMITHS. He went on down to where MRS. SMITH and this girl
that is living with her were picking up some apples off of the
ground. I was not near enough to hear and see all that took place
down there but he gathered this girl that lives with MRS. SMITH and
put her out of the orchard in as rough a manner - or rougher as I
thought any gentleman would have done a woman and after he done that
he turned ( next page - not numbered) to MRS. SMITH she ws something
like twelve or fifteen steps from the ____ and had started on to go
out with a few apples in her apron; he met her and ordered her to
throw down the apples she kept trying to get along to the ______ and
he kept right before her cursing of her - she throwed out her arm and
says NETHERY I have not been pestering of you or saying a word to you
look here at the apples lying here rotting and that her mother give
her leave to come here and get apples when she wanted them and he
replied and said god damn you, I will have you to know that mother
has no authority to give you nor nobody else leave to come here and
get apples that she had nothing to do with anything there, that she
had nothing there that she went off and left it and what was there
was his and there was not men enough out of hell to carry them up
there, that he did not fear god man nor the Devil and he tried to
make her promis if he would let her out with them few apples that she
would not come back there anymore but she did not make that promise.
She got out with them after trying a right smart while and I suppose
took them home but he swore by all that was good and _______ that
there should not be one taken there - and further this deponent saith
not.
(s) ELIZA
F. JOINER
E. G. SEVIER being duly sworn states as follows:
(Part of this writing is poor and faded. M. Mc.)
1 Question
by Complainant - How long have you been acquainted with CHRISTIANA
SMITH and how far do you reside from her.
1 Answer by E. G.
SEVIER - I have known MRS. SMITH about 12 years. I live about one
mile from her.
2 Question by same - Have you ever saw and
read an article of agreement between CHRISTIANA SMITH and JOHN
NETHERY and if so, from your knowledge of MRS. SMITH do you think she
would have been capable of understanding the effect and meaning of
such an instrument at the time it ws executed.
2 Answer by
same - I have seen and read an article of agreement between the
parties and from the opinion which I entertain of MRS. SMITH capacity
I have no idea that she was capable of understanding the import and
obligation of such a contract.
1 Question by Respondent - Do
you know what was the condition of the place where MAJ JOHN SMITH
formerly lived at the time of his deceas. If so State its condition.
1 Answer by same - I cannot give a Satisfactory answer to
this question. I think the land at least a portion of it was very
much worn and the fencing out of repair.
2 Question by same -
Do you believe that Old Mother Smith has comon natural sense.
(next
page not numbered)2 Answer by same - I have no doubt but MRS. SMITH
has had and yet has common sense, very much impaired by age and
bodily infirmities.
3 Question by same - Did you ever hear
Either ANTHONY SMITH or JOSIAH SMITH seeking council by which they
might remove me from the place where I now live. If so state all you
can recollect about that matter.
3 Answer by same - I have
frequently heard both of them speaking of your removal from the
place. They have spoken to me in reference to the article which you
held upon their Mother stating it to be a fraud practised upon her
and have asked my advice as to the course necessary to be pursued to
effect your removal but I have no recollection that they in a single
instance adopted my opinion. I do not recollect of hearing either of
them consulting any other person.
4 Question by same - Do you
know any thing about an article of agreement which exists between
ANTHONY SMITH, JOSIAH SMITH and CHRISTIANA SMITH.
4 Answer by
same - I have either read or heard an Article between the above named
parties.
5 Question by same - Were not heavy charges of fraud
made against me by ANTHONY SMITH in relation to the agreement above
alluded to before they entered into the second and what did you
understand to be the object of entering into the new one.
5
Answer by same - I cannot state whether ANTHONYs complaints were made
before or after as I (next page not numbered) do not recollect if I
ever knew when the agreement was entered into. I understood that it
was the wish of their Mother to take her business out of your hands
and confide it to ANTHONY and JOSIAH.
6 Question by same -
Did either of those men at any time make threats in your hearing that
they would remove me from the place or threats of any other
Character.
6 Answer by same - I have frequently heard them
speak of removing you, but so far as I recollect it ws always in
reference to the wishes of their mother.
7 Question by same -
Do you think Old MRS SMITH to be capable of understanding the
agreement which was made between ANTHONY, JOSIAH and OLD MRS. SMITH
from your recollection of that instrument.
7 Answer by same -
I do not recollect much about the language or substance of that
agreement. I do not consider her capable of transacting business of a
complicated nature and further this deponent sayeth not.
(s) E. G. SEVIER
State of Tennessee Roane County
I M. S. Millican one of the acting Justices for the County aforesaid,
do certify that the foregoing depositions were taken by me and all
reduced to writing by me except WILLIAM BROWNS AND E. G. SEVIERS who
wrote theirs and signed in my presence; Complainants Counsel THOMAS
N. CLARK and JOHN NETHERY Respondent were present during the
examination; that I am not of Counsel or attorney to either of the
parties, nor interested in said cause. Given under my hand any seal
this 21st day of September 1843.
(s) M. S. MILLICAN (Seal)
Justice of the peace for Roane County
Bill of cost making the
foregoing Deposition
Clerk & Master for Commission
$ 0.37
1/2
Sheriff Wm. Brown serving notice
.50
Witness Anthony Smith for one day attendance
.75
Wm. Brown do
.75
Eg.
Sevier - do
.75
Eliza F. Joiner do
.75
Justice Millican for taking five depositions
5.00
I do certify that the foregoing bill of cost is correct
Given under my hand this 21st day of September 1843.
M. S. Millican
Justice of the peace
**************************************************************************
Exhibit Attached - The "Agreement between John Nethery and
Christiana Smith"
(It is my opinion that the following
"articles of agreement" referred to in the foregoing
depositions was written by JOHN NETHERY in his own handwriting. If
so, he seems to have been an extremely well educated man. M. Mc.)
State of Tennessee
Roane County
This Indenture
made and entered into this day by CHRISTIANA SMITH on the one part
and JOHN NETHERY on the other part both of the State and County above
written Witnesseth to all whom it may concern that the Said
CHRISTIANA SMITH hath this day bargained with and employed the Said
JOHN NETHERY to Superintend and manage all her business, the said
NETHERY binding himself to put in repair and continue to keep in
repair and cultivation all that portion of cleared land which shall
decend to her as a dowry out of the lands of her deceased husband
JOHN SMITH. She doth still further agree with the said JOHN to make
Such additional improvements as may be necessary for her well being
upon said place, and the said CHRISTIANA doth still further bind
herself to keep the said JOHN and his family with her in Joint
possession of the dwelling house and all other buildings and
Improvements (written in above are the following words, "the
mill excepted") which shall descend to her as above, during her
natural life; or until this agreement shall be disolved by the death
of the said JOHN NETHERY; or by the mutual concent of the bargaining
parties. The Said JOHN NETHERY doth hereby bind himself well and
faithfully to Superintend all the business thus confided to his care,
the expences of which are all to be paid out of the proceeds of the
place, the said NETHERY doth agree to furnish all things necessary
for her support, and comfort, such as food, rayment, fires, and
medicines, Suited to her age and condition of health, and in order
that the Same Shall be faithfully (page 2) performed by the Said
NETHERY it is agreed by the parties that the Said CHRISTIANA shall
have and hold in her own proper name and have in her own charge and
possession all the property of every kind and description, which
shall arise from the labour of said NETHERY and his family, as well
as from the culture of said place as above, having the Same at her
own disposal for the procurement of any or all the necessaries which
the Said NETHERY shall fail to furnish as above, and it is Still
further agreed that the said JOHN NETHERY his heirs and assigns
Executors or Administrators, provided, that should the same be
disolved during the lifetime of the said CHRISTIANA, there shall be
released to her by this contract one full years support, from and
after such disolution, and provided further that this agreement shall
not be so construed as to give to or invest in the Said JOHN NETHERY
any other right or possession of said place than the liberty of
living Jointly with the Said CHRISTIANA and he shall have no power
whatever to sell, transfer or in any manner convey to any other
person or persons whatsoever any part or portion of the benefit or
engagements of this Indenture without the concent of the said
CHRISTIANA SMITH except the proceeds.
This indenture closed
Signed and Sealed by the bargaining parties on the first day of
January in the year of our Lord 1842.
her
Christiana x Smith (Seal)
mark
John
Nethery
)
)
Test
)
)
Christiana Nethery
)
(Note: Christiana Nethery's signature was obviously written
by John Nethery. There is no doubt but that the word "Nethery"
in her signature and "Nethery" in his signature was written
by the same person. M. Mc.)