Left Out of the Not-a-Will: 52 Ancestors 2022 Prompt “Passed Down”

Elias Guess Smith’s Verbal “Will” Cuts Out All His Children But One

Elias Guess Smith: 1775-1830 (Maternal 3rd Great-grandfather)

William Bundine Smith: 1807-1882? (Maternal Second Great-Granduncle)

 

Following Elias Guess Smith’s death in 1830 at the comparatively young age of 54, his wife appeared with her brother before a local justice of the peace in Muhlenberg County, Kentucky, where they swore that Elias had told them he was leaving all his property to his 22-year-old son William Bundine Smith. This wouldn’t have been so surprising if William was an only child, but he was one of twelve children, ten of whom were still living at the time of Elias’ death.

Here is a transcription of the document brought to court following Elias’ death:

“This day personally appeared before me, Solomon Rhoads, Justice of the Peace for Muhlenberg County of State of Kentucky, Simeon Vaught & Hannah Smith & made oath as follows to wit That on the 3^rd day of March 1830 Elias G Smith did voluntarily give & deliver in to the actual possession of his son William B. Smith in their presence all his personal estate without any exception, he the said Elias B Smith being in his perfect mind—further the witness saith oral—sworn to & signed by said witness before me this 30^th day of March 1830.

Hannah Smith (her mark) x

Simion Vaught

Cert. Solomon Rhoads, JP Muhlenberg County JP

March County Court 1830”

The probate court apparently accepted this testimony as truth. A descendant reported on Family Search that, “This oath was, in March County Court 1830, declared to be the ‘nuncupative will of Elias G. Smith, deceased…’”

According to the Legal Information Institute of the Cornell Law School, a noncupative will is:

“A will which is not written, but is declared orally by the testator. Nuncupative wills are not valid in a majority of states.”

The passage goes on to state that they are thought of as “deathbed” wills, and usually happen when the person is near death or too ill to write or sign a normal will. This type of will, when allowed in a state, requires a certain number of witnesses to the deathbed utterances, and the recording of the witnesses’ testimony as soon as possible.

How did William’s siblings feel about this incredibly unfair distribution of Elias’ land and possessions? Some of Elias’ children were already adults, so it is possible he had already made provision for Jesse, Martha, George and Elijah. However, the five younger children, John Everett Vaught Smith, Louisa, Sicera, Elias Jr., and Mary Elizabeth, were still minors, so would not have already received any property from their father as the older children might have. There was no indication in Hannah’s sworn affidavit that Elias had made any provision for Hannah’s care or that of those five young children, who ranged in age between 3 and 17 years of age. Was William expected to care for his mother and younger siblings? Was there any guarantee he would do so?

This whole sworn testimony seems a little fishy. What happened to Elias? Why was this oral will necessary? What caused his death? Why was Hannah’s brother Simeon Vaught present? What interest did he have in his brother-in-law’s property? Was Hannah under pressure from relatives to make this claim? Why was William chosen over the oldest son, Jesse? What happened to William Bundine Smith and to his siblings in the years following his inheritance?

Elias Guess (E. G.) Smith headstone

I will have to continue my research in the hope that I will eventually find answers to some of these questions. This was a fascinating way to pass down property, and I am surprised the court accepted Hannah and Simeon’s sworn testimony. It was my first exposure to a “noncupative will.”