Notes from the past…


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KENNEDY v. UPSHAW and another, Supreme Court of Texas, June 18, 1886.

Ok, I think I’ve just about figured out what this document says!

First of all, I have uploaded it here as a .pdf, so if any of you legal-minded folks out there (Hi, Craig!) would like to take a look at it and tell me what you think, feel free!

Kennedy v Upshaw

Also, this whole situation has a very interesting and ironic conclusion that I will discuss after I have summarized the document, so…please keep reading!

Here goes:

Page 1 starts out by reviewing the Texas laws pertaining to the probate of wills. It then states that the appellees (“UPSHAW¬† and others”) who offered this for probate as the last will of of James H Martin on Feb 8, 1883¬† allege that this document is the last will and testament of James H Martin. The appellant, S W L Kennedy (my 3rd great-grandmother) alleges that this is not the last will, but that this paper and another, a codicil, actually constitutes the will. (A codicil is an addition to a will.)

Apparently the appellees “charged in this case that the codicil was a forgery”, so the appellant (Kennedy) had to prove that it was not a forgery.

(I realize that an appeals court makes its ruling based on if the trial was conducted properly, not if the charge was true or not. Throughout this document, the Supreme Court comments on various aspects of the trial and if it was conducted as it should have been.)

Page 2 gets interesting. It points out that at the time the will was written, Feb 8th, James H Martin was ill and living in the home of his daughter and her husband (Susan William Lee Martin Kennedy and Nathan Blunt Kennedy, MD) in Hillsboro, TX. There was apparently “an estrangement of feeling” between Martin and his daughter S W L Kennedy, and Martin had left the greatest part of his estate to “another”, a relative other than S W L Kennedy. The Doctor and Mrs Kennedy witnessed the will, and everything was done properly and according to the law at that time (Feb 8).

Soon after, Mr Martin went to Wooten Wells, in an attempt to improve his failing health. Wooten Wells was an area in Robertson Co, TX that contained mineral springs, that were believed to hold curative powers.

While at Wooten Wells, Martin executed the codicil (apparently written by Susan Kennedy!), again in the presence of the Kennedys. A deed of gift was also created, now giving the largest part of the estate to the Kennedy’s children, Chester and Harriett Kennedy. There were said to be several others present at the time, but only the Kennedys witnessed the codicil, supposedly at the request of Martin. They all then returned to Hillsboro, where Martin died on Mar 28, 1883.

A statement from the physician who attended Martin at Wooten Wells, a Dr Willis, was also introduced, against the objection of Kennedy. This statement related to Martin’s physical condition at the time the codicil was executed.

On page 3, the document states that “a large number of witnesses were permitted to state that they knew the reputation for veracity of the witnesses to the codicil ( the Kennedys) and that this reputation was bad.” The Court decided that this testimony was introduced solely for the purpose of impeaching the testimony of the Kennedys, and therefore should have been excluded.

Page 4 continues to examine Dr Willis’s statement, and also discusses “declarations by the testator (Martin) showing affection for Chester Kennedy, and an intention to reward him for his devotion and kindness” by making the deed of gift to him and his sister.

Page 5 concludes by reviewing other sections of the court record, and then states that the charge to the jury was misleading and incorrectly given.

In A Nutshell: The Hillsboro Court apparently ruled that the codicil was not a legal addition to the will, believing it to be a forgery. Kennedy appealed the ruling and it went to the Texas Supreme Court, where the Court overturned the Hillsboro court’s ruling and returned it to Hillsboro for retrial.

The statements about the witness’s veracity (truthfulness) are difficult to believe, at least for Dr Kennedy. I have gathered a lot of information on Dr Nathan B Kennedy, and nowhere have I seen anything that blunts his reputation as a good and honest man and a highly-skilled surgeon. However, Susan Kennedy is another story entirely! I have found numerous references to her precarious emotional status, including the document that I located at the Hill County Courthouse at couple of years ago, indicating her status as NCM, or non compos mentis. In other words, she was declared legally incompetent by Hill County!

And, what of the retrial? On the same trip to the Hill County Courthouse a couple of years ago when I found the NCM document, I found another document, where the Kennedy’s daughter Harriett was willed a large sum (money or property, I don’t know which) by her late grandfather James H Martin. But since Harriett was a minor at the time, control of the estate went to her father, Dr Nathan B Kennedy. So, untimately S W L Martin did gain control of her father’s estate, however indirectly!!