The following case was obtained from the North Carolina archives in Raleigh, N.C. by Russell researcher, Ann Rutherford (retired Judge). She also provided the legal explanations, and was instrumental in insuring that the transcription below is as complete as possible. If a ? follows a word, it's spelling is unsure. If letters are unreadable the approximate same number of dashes represents the unreadable letters, in the text.
No Carolina, Montgomery county, In Equity, Fall Term 1853
To the honorable, the Judge of the Court of Equity of said County, the Bill of complaint of Hillory Russell, John Russell, Davis Russell & wife Tempe, Clavy Cranford & wife Patsey, John Wasinger & wife Polly against Curtis Russell, John D. Wasinger, Curtis Wasinger, Wm. J. Howell & wife Letitia, Eliza J. Wasinger and David W. Wasinger, the last two named are infants of Tender years (see note 1 below), under the age of twenty one, humbly complaining, yours orators & oratrices shew unto your Honor that Leonard Russell late (already dead) of Montgomery county, by his last will & testament, which was duly executed to pass both Real & personal Estate, devised among other things, that a certain tract of land hereinafter described, after the death of his wife Anna, should be equally divided among his children. They shew unto your Honor, that said last will & testament was duly admitted to probate at (no date, see note 2 below) Term of the Court of Pleas & Quarter Sessions of Montgomery County. The said Anna, wife of testator survived him and departed this life in (no date of the month) June AD 1853. Your orators and oratrices further complaining, shew unto your Honor that Testator left him surviving the following children, Hillory Russell, John Russell, Tempe Russell, who intermarried with Davis Russell, Patsey who intermarried with Clavy Cranford, Polly who intermarried John Wasinger and Elizabeth who intermarried with David Wasinger, and Curtis Russell, each of whom were entitled to one undivided seventh part of the remainder in said land after the life Estate of Anna Russell Expired (Note: word "Expired" is lined through). They shew your Honor that Elizabeth Wasinger departed this life about 1849 and her interest has descended to her children John D. Wasinger, Curtis Wasinger, Letitia who intermarried with W. J. Howell, Eliza J. and David W. Wasinger and who are defendants in this suit.
They shew your Honor that the tract of land above referred to, lies in Montgomery County on the wates (waters)of McLean & Buffaloe creeks, adjoining the land of John Wasinger & Wm. Russell and contains about 200 acres.
They shey shew your Honor that said land cannot be partitioned (divided in 7 parts) among the tenants in common without material injury. That gold has been discovered on said tract and if a vein exists, it would be impossible to make an equal division among tenants in common. Your orators & oratrices believe that it would be beneficial to all parties interested to have said land sold and it's proceeds divided among the said tenants in Common. To All which acting's & doings are contrary to Equity, & good conscious & tend to the manifest injury of petitioners. Plaintiffs Forinas? muclius? (Possibly Latin), Plaintiffs are seniei? lep? by the strict rules of Common Law, and only achievable in this honorable Court where matters of this nature are properly cognizable (means recognizable in the law- as in by a Court of equity) to the end therefore that defendants may upon their several corporal oaths, full true and perfect answer make to all singular the premises as much as if the same were here again repeated and they thereunto especially interrogated. May it please unto your Honor to grant unto your orators & oratrices, your states writ of subpoena, directed to the Sheriff of Mecklenburg county conisv?. and authorize him to summon A John D Wasinger, Curtis Wasinger, W.J. Howell & wife Letitia, Eliza J. & David W. Wasinger, and that publication (see note 3 below) be made as to Curtis Russell, who is an inhabitant of another state, that said defendants may appear at the next Court of Equity to be held for Montgomery, and demur (see note 4 below) plead to, or answer this Bill of complaint and they pray your Honor to order & decree a sale of said land, upon such terms as to your Honor may seem meet & right, and they pray your Honor to grant unto them such other & further relief as the nature of their case may require or unto your Honor, may seem meet & right. and as duty bound they will ever pray (There is a principle in Equity that he who seeks equity must be willing to do equity -- this language says the plaintiffs invoke the Court's equitable powers and they bind themselves to the Court to do equity, i.e., what is fair and reasonable).
A. H. Caldwell Solr for Plaintiff (Solr stands for solicitor meaning attorney).
According to 1860 census Rowan, county, N.C. Arch'd H. Caldwell with his brother (possibly), also an attorney and Father(possibly), who is Sr. Judge of S. Court of Rowan).
Note 1: Infants and tender years do not refer to age but to legal status, meaning, under 21 and unable to deed property and act on their own)
Note 2: Term of the Court -(there should be a month shown specifying the term of the Court - The Court's had term for 4 months of a year - every three months - They were part time Courts.)
Note 3: Courts (at this time) "published" (in a newspaper) instate, to notify persons who live out of state or for persons that the court doesn't know where they were. This was done until the 1930's when the U.S. Supreme Court stated that this violated due process, and notice had to be the most likely to give actual notice.
Note 4: A demur is the name of a legal document which is a response to a complaint or petition. It is another form of an answer. An answer admits or denies each allegation or fact stated in a complaint or petition. A demur says the complaint or petition is legally defective such that if you prove everything you allege you still cannot recover in Law or Equity. In this case you cannot get a Court ordered sale!)
Brief summary. Leonard Russell died and left a will (Will not located yet). Part of the will according to this case, was for Leonard's wife Anna Russell to have the land untill she died, then the land would be divided equally among Leonard's 7 children (listed above in case). Anna Russell died June 1853. The land couldn't be divided equally (equitably), because gold had been found on the land, so the land had to be sold, so that the proceeds could be divided equally, according to Leonard's will. Also Elizabeth had died, so part of the case was for her five children to divide her 1/7th share. The land was eventually ordered sold, and purchased by Wm. A. Russell for $400 on 27 April 1855, after commissioners are appointed and agreed that the land cannot be partioned (Because gold had been discovered on the land, it was probably impossible to divide equally). After court costs of $58.02 (400 - 58.02 = 341.98). Each 1/7th share was worth 48.85. There are receipts showing that Hillory and John Russell each received their 1/7th share. John and Polly (Mary) Wasinger sold their 1/7th share to Calvin J. Cochran and he received 48.85 on 30 July 1855. Calvin J. Cochran also collected 2 1/7th shares for Davis and Temperance Russell and Claiborn and Patsey (Martha) Cranford on 30 July 1855. John Waisner received power of attorney for Letitia Howell and received $9.77 for her on 31 Sept 1857 (1/7th share = 48.85 divided by 5 children = $9.77). There are no records that show that Curtis Russell ever received his share.
One of Leonard's children, Curtis Russell lived out of state in 1853 according to the suit. This could be the Curtis Russell (born N.C.) that went to 1820 30 40 50 60 Washington county Indiana then 1870 Finley Township, Scott county, Indiana at household # 1448, Image 14. In 1810 census of Hattom township, Montgomery county, N.C. Leonard Russell (listed as over 45) listed one male child 16-25. Curtis Russell from Washington county, Indiana would have been 19 at that time. Leonard Russell (of the 1810 Montgomery co. N.C. census) is probably Curtis Russell's (Of Washington county Indiana) father. Several neighbors of Curtis Russell in Washington county, Indiana also came from Montgomery county, N.C (Bennet Curtis, Silas Stuart, Marvil Cranford, Archibald & Thomas Russell).
According to the 1860 census of Western division, Randolph co. N.C. household 1157 image 155 Post office "Ashboro" Leonard's youngest daughter Polly (Russell) Wasinger was 54 (born about 1806). This case tells us that Leonard was alive, at least until about 1806 (about when Polly was born). Leonard Russell listed 7 children in his will, according to this case. Elizabeth died in 1849 according to the case. This probably means that Leonard was already dead before Elizabeth died. This case probably tells us that Leonard Russell died between about 1806 and 1849. Leonard was listed in the 1810 census but wasn't listed in the Montgomery county, N.C. 1830 census, so he probably died between 1810 and 1830 according to the census.
Intermarried is just old legal terminology for married.