May 15, 1788-Dec 26, 1850
Lenoir County, North Carolina
This court case is found in the estate papers of Walter Dunn Jr. - NC Archives.
Lenoir County, NC - Walter Dunn Jr., Division of Lands, 1887
W W Dunn & wife Susan Dunn Plfts
The plaintiffs complaining of the defendants allege:
1. That on the 26th day of Dec 1850 one Walter Dunn Sen of Lenoir County, NC, the father of the plaintiff, W W Dunn, and the grand father of the defendants, Walter Bagby, Gertrude Bagby & Charlie Bagby, children of the defendant G K Bagby, by his wife, Hellen M Bagby, decd, daughter of the said Walter Dunn Senr departed this life in said county leaving a last will & testament which was duly and legally admitted to probate at the January Term 1851 of the Court of Pleas and Quarter Sessions of said county by one John M McKinney the executor therein named in accordance with the law in such cases made and provided
2. That said Will & testament was duly & legally recorded and filed among the proper records of said county.
3. That subsequently, ie. sometime during the years of 1878 & 1880 the records of the said county, among which were the records and original of this will & testament, were destroyed by fire and there is no copy of the said will & testament in existence so far as these plaintiffs are aware except probably a copy now in the possession of the defendant, G K Bagby.
4. That the said Walter Dunn Senr, decd, at the time of his death, and for a long time prior thereto, was seized and possessed, in his own right, in fee simple, of the two following tracts of land known by the name of the home place together with the Lewis C Desmond and Elizabeth Desmond land, bounded as follows:
Beginning at a black oak, Henry Tull's corner of the William Lovick land, also a corner of the Henry Blackland and runs North 60 East to the Wooten's Branch, then down the various courses of the same, to Jericho swamp, then down the meanders of the said swamp to the Daniel Desmond land, then with the line of that land South 28 East to the poplar branch, then up the various courses of the said branch to the William Croom land then with the Croom line South 79 West to a lightwood knol, a corner of the Croom land and home tract, then South 5 West to Henry Tull's corner of the lands bought of W B Rhem & wife, then a small branch, then down the meanders of the same to Rudy branch, then down Rudy branch to an oak, Shadrack Loftin's corner, then with Loftin's line to John C Washington's corner in a small branch, then down the courses of said small branch to Jericho, then up the meanders of Jericho to Henry Tull's corner of the Lovick land, then with his line to the beginning; containing by estimation seven hundred acres, more or less.
5. That no part of said lands were required to pay off the debts of the said Walter Dunn Sen, decd, he having died perfectly solvent.
6. That the said Walter Dunn, Sen, decd, by his said last will & testament devised the said tracts of lands mentioned in allyation 4 of this complaint to one Cynthia Dunn, his widow, who survived him for about 37 years, for her life and after her death the said lands were by the said will & testament to be equally divided in fee simple between his, the said Walter Dunn's, Sen, decd, six youngest children also the children of his said widow said Cynthia Dunn to wit; Martha J Dunn, now the wife of one S H Rountree, the plaintiff, W W Dunn, Cynthia A Dunn now dead, afterwards the wife of one John Tull, Theresa F Dunn, afterwards the wife of one E H Chadwick, now dead, R A Dunn, now dead, afterwards the wife of one L B Cox and Hellen M Dunn, now dead, afterwards the wife of the defendant, G K Bagby and the mother of the other defendants.
7. That on, or about, the 15th day of March 1858 the said Martha J Rountree and her husband, said S H Rountree, conveyed, by deed, their one individual sixth interest in said lands to the plaintiff, W W Dunn, in fee, which deed was duly probated and recorded according to law.
8. Than on, or about the 15th day of March 1858 the said Cynthia A Tull and her husband, said John Tull conveyed by deed their one individual sixth interest in said lands to the plaintiff, W W Dunn, in fee, which deed was duly probated and recorded according to law.
9. That by virtue of these said deeds of conveyances and the said will & testament of the said Walter Dunn, Sen, decd, the plaintiff, W W Dunn, became the owner in fee of one half individual interest in said lands after the death of his mother, the said Cynthia Dunn, said widow of the said Walter Dunn, Sen, decd.
10. That the plaintiff inter-married in the State of North Carolina on the 13th day of September, 1860.
11. That on the (blank) day of (blank) 18 (blank) this one half undivided interest of the plantiff, W W Dunn, in said lands, were legally conveyed, by deed to the said Cynthia Dunn, widow of said Walter Dunn, Sen, decd, and by the said Cynthia Dunn afterwards conveyed, by deed, to the plaintiff, Susan Dunn, who is now the owner, by virtue of these conveyances, of the same in fee simple.
12. That on the (blank) day of (blank) 18 (blank) said L B Cox, husband of the said R A (Rachel Almira Dunn) Cox, decd, having the fee simple by descent from his daughter, Gertrude Cox, in one sixth undivided interest in said lands conveyed the same by deed in fee to said Hellen M Bagby this one sixth interest was the interest of the said R A Cox which descended to her said daughter, said Gertrude Cox, on the death of the said R A Cox.
13. That on the (blank) day of (blank) 18 (blank) the said Theresa F Chadwick, widow of the said E H Chadwick, decd, conveyed, by deed, in fee, her one undivided sixth interest in said lands to her sister, said Hellen M Bagby, wife of the defendant, G K Bagby, and the mother of the other defendants.
14. That by virtue of the said conveyances and the said will and testament of the said Walter Dunn, Sen, decd, the father of the said Hellen M Bagby, the said Hellen M Bagby became the owner in fee simple, after the death of her mother, said Cynthia Dunn of one half undivided interest in said lands.
15. That the said Hellen M Bagby died in the county of Lenoir NC on the day of (15 Feb) 18 (81) leaving her surviving the defendants, and owning the said interest in said lands, and leaving her last will and testament, which has been duly probated and recorded in said county of Lenoir, in which she devised her interest in said lands to her three children and defendants, said Walter Bagby, Gertrude Bagby & Charlie Bagby also the children of the defendant, C K Bagby.
16. That on the 13th day of Sept, 1875, during the life of the said Cynthia Dunn, widow of the said Walter Dunn, Sen, decd, who at that time had a life estate unexpired in said lands under said will and testament of the said Walter Dunn, Sen, decd, as afore said G K Bagby & wife, Hellen M. Bagby, officiously, prematurely and without authority of law so to do filed a petition for partition of said lands against the plaintiffs in the office of the clerk of the Superior Court of Lenoir County asking for a division of the said lands between his wife, said Hellen M Bagby and the plaintiff, Susan Dunn, wife of the plaintiff, W W Dunn.
17. That these plaintiffs are informed & believe that a decree, or judgement, was rendered in the said pretended partition proceedings for the division of said lands above described between the parties as aforesaid, and in accordance with said decree, or judgment, the said lands were divided by commissioners named in said decree, or judgment, and the report of the said commissioners was returned to said office of said clerk and confirmed all of which was done during the life of the said Cynthia Dunn and the existence of her life estate in said lands as above described.
18. That the process in the said partitions proceedings necessary to make these plaintiffs parties thereto was not served upon these plaintiffs, and the court did not in fact, or law, acquire thereby jurisdiction of these plaintiffs although such appeared to be the case on the record as these plaintiffs are informed and believe; and these plaintiffs did not appear and litigate their rights in the said proceeding, either personally, or by attorney and said decree or judgment is null and void.
19. That all the records of the said pretended proceedings for partition were destroyed in the fires of 1878 or 1880 when so many of the other official records of Lenoir County were destroyed and these plaintiffs are informed and believe, and so allege the fact to be, that there is no copy of the said records in existence.
20. That the said Cynthia Dunn in whom was a life estate in said lands as aforesaid continued to rent out said lands and received the rents therefor up to the time of her death.
21. That the said Cynthia Dunn, widow of the said Walter Dunn, Sen, decd, to whom the said lands were devised for her life by the said will & testament of the said Walter Dunn, Sen, decd, died in the county of Lenoir on the (blank) day of (blank) 1887 never having disposed of her interest in said lands and these plaintiffs with all due diligence, and as soon after the termination of the life estate of the said Cynthia Dunn as they were enabled to ascertain the facts wrote to the defendants, G K Bagby, the father of the other defendants, for a friendly partition of the aforesaid lands, which was declined by the aforesaid G K Bagby who alleged the existence and validity of the former proceedings and therefore the plaintiffs brought this action to have the said decree, or judgment in the said former proceedings set aside and annulled.
22. That the defendants, Walter Bagby, Gertrude Bagby and Charlie Bagby, are all minors, living in Newbern, Craven Co, NC with their father and defendant, G K Bagby that all of the said minors are above the age of 14 years except probably Charlie Bagby, and none of them any general, or testamentry guardian in the State of North Carolina.
Wherefore the plaintiff demands judgment:
1st That the said decree, or judgment, in the former pretended partition proceedings be set aside and annulled, and all of the proceedings therein be avoided and abrogated:
2nd That the plaintiffs have such further and other relief, in this action, as the court, in its judgment, may adjudge them to be entitled.
3rd That the plaintiffs recover of the defendants their costs.
Loftin & Rountree
I, W W Dunn, one of the plaintiffs in this action being duly sworn, says: That I have read the foregoing complaint and know the contents thereof; the same is true of my own knowledge, except to matters therein stated on information and belief, and as to those matters, I believe it to be true.
Sworn to and subscribed