Order April Term, 1874
Elizabeth H Jack and husband next friend
Vs
W. H. Foust
May 2nd 1874
This cause came on upon motion of Martha Simmerman to become a party
defendant to this Court, and she having presented to the Court her
petition by her next friend Samuel Williams, which is sworn to, alleging
among other things that she is the only living child of Jerome C.
Simmerman, who the original Bill charges is a lunatic, and that in the
event of the death of her father the said Jerome C. she will be his only
heir at law. It is ordered that she have leave to become a party
defendant.
And it further appearing to the Court that said Martha is a minor and
has no regular guardian it is ordered that Samuel Williams her next
friend be appointed her Guardian ad Lateran who appeared in open Court
and accepted the trust . And upon motion of the said Martha by her next
friend she is allowed to file her petition as an answer to the Original
Bill, and as a cross Bill or an Original bill in the nature of a cross
Bill, upon said Williams her next friend entering into bond and security
for the costs incident to the Cross Bill, conditioned as required by law.
Process upon the Cross bill will be returnable to the July Rules.
Petition Answer and Cross Bill of Martha Simmerman
To Hon. D. M. Key chancellor
Martha Simmerman by her next friend, Samuel Williams
Vs
James Jack, and his wife Elizabeth Jack, and Wm H. Foust Guardian of
Jermone C. Simmerman.
Complainant shows unto your Honor that she is the daughter and only
surviving child of Jerome C. Simmerman. She is informed and believes her
mother died shortly after she was born and she is now about seventeen
years old as she believes.
She will state that she now resides with her aunt Elizabeth Bolton in
Polk county Illinois and has lived with her since her earliest
recollection and who although in very humble circumstances has treated
her as a mother. She is informed that she cared for her in her infancy,
and has even contributed to her wants and comforts so far as she was
able. She is informed that her father the said Jerome C. Simmerman, who
is a citizen of Hamilton County Tennessee, after her birth became in
such condition of mind that one James Jack who is her uncle by marriage
became, under some sort of proceedings in the County Court of Hamilton,
State of Tennessee the Guardian of her father Jerome C. Simmerman.
Said Jack as she is informed was removed from his guardianship on
account of his failure to discharge his duty as such Guardian.
Afterwards she is advised her grandmother, Sarah Bivens, her father’s
mother, became Guardian of her father. Said Sarah is now dead. Since
that time one William H. Foust has been appointed Guardian of her
father, said Jerome C., who, she is informed has fully discharged his
duties as such guardian, but does not waive any right she may have
against him—has taken charge both of the real and personal state
belonging to her father. She supposes he is chargeable with more than
three thousand dollars in cash.
She is advised that her father the said Jerome C. is the owner and the
said Wm H. Foust has in his control certain valuable lands in Hamilton
County Tennessee; described as a tract or parcel of land-------
She is advised that her father the said Jerome C. resides on the land
entirely alone and is provided for by his guardian W. H. Foust.
Respondent Elizabeth Jack who is her aunt has filed her Bill in the
Chancery Court at Chattanooga, Tennessee in which she alleges that she
(Elizabeth) is, and that Oma Bivens, who intermarried with Patrick Cobb,
and Mary Bivens who intermarried with J. T. Stringer, the last two of
whom are dead, were the half sisters of her father, he not having any
full sister or brother. And that Complainant Elizabeth and the children
of said Oma Cobb and Mary Stringer are the heirs apparent of her father
and seek, among other things, to remove the said W.H. Foust from his
guardianship, to the end that said Elizabeth or her husband James Jack
may become Guardian of her father.
She states that she is the only living child of her father Jerome C. as
she believes, and consequently neither the Complainant nor the children
of Oma Cobb decd. or children of Mary Stringer Decd. are the immediate
heirs apparent of her father. She is informed and believes that neither
the said Elizabeth Jack nor her husband James Jack are fit persons to be
interested with her father’s estate.
Said James Jack her uncle is wholly insolvent, a man of little business
tact or thrift and when he has been guardian, as she is informed, has
failed to account for money of his ward’s, coming to his hands.
She will here state that this charge is only intended to allege that
James Jack pecuniary and otherwise is incompetent to discharge his
duties as guardian and not that he has been intentional dishonest.
She charges upon information and belief that this Bill is not filed in
the real interest of or for the benefit of her father; but as she
supposes to give the control of her father’s property to Complainants;
so that in event of his death it would be in their possession the better
to enable them to hold on to the property and in the meantime enjoy the
benefit of the property.
Complainant charges upon information and belief that Wm H. Foust, the
Guardian, has entrusted the Complainant, Elizabeth Jack, to furnish her
brother with all his provisions, consulted her in regard to his
clothing, and has paid her and her husband very likely for all she has
done, and it is difficult to suppose any other reasons for her desire or
that of her husband to become his guardian, other than that they hope by
this to profit by such a course in the lifetime of her father, or to
deprive her of her estate upon the death of her father during her
lifetime, and she so charges upon information.
She will here state and charge that she has been under the care and
charge of her aunt since she was an enfant, that her father, owing to
the condition of his mind, has contributed little to her support; that
she was removed from Hamilton County Tennessee to the state of Illinois
at an age when she knew nothing of her rights by her aunt; that although
she (her aunt) has done for he, all that she was able to do, she has not
been able to educate her and the result is that she is now comparatively
uneducated and ignorant.
She has known little of the condition of her father, little of her own
rights and had she known them was unable to have asserted them.
She is now desirous to return to her father and discharge the duties of
a daughter.
This complainant here asks and submits to the Court that looking to the
condition of her state and her present condition that some such
allowance as may seem just be made for her support and particularly to
enable her to obtain the rudiments of a common education.
She has no desire to deprive her father of any m---ary comfort, but she
does believe that as a father he should have supported and educated her,
at least in a manner equal to his condition in life, and in as much as
all his estate has passed beyond his control she asks that such action
may be had by the Chancery Court as shall be shown she is entitled to
receive.
Complainant does not desire to express any opinion as to whether or not
W. H. Foust has discharged his duties as Guardian, and she expresses no
opinion upon this question but she has heard that his bond as Guardian
is good and he is a safe and prudent man, and she does not desire his
removal as such Guardian. She does not know with what he has charge
himself, nor does she know with what he should be charged and she
submits this question to the court.
The premises considered she prays that she be allowed to become a party
defendant to the Bill of Elizabeth Jack with whom joins her husband
James Jack No. 1431 and allowed to answer the same. That she be allowed
to file this bill as a crop bill or a cross bill, in the nature of an
Original Bill, and if this cannot be done; that it be filed as an
Original Bill. That Elizabeth Jack and her husband James Jack, James
Cobb and John Cobb children and heirs at law of Patrick and Oma Cobb
Desd. All of whom are minors. Richard and Mollie Stringer, minor
children of Mary Stringer decd. formerly Mary Bivens and their father J.
T. Stringer who is supposed to be their regular Guardian, Jerome C.
Simmerman and his Guardian W.H. Foust all of whom are residents of
Hamilton county Tennessee be made defendants to this Bill, and required
to answer. That complainants bill be dismissed, the rights of
Complainant adjudicated and determined. That all necessary and proper
allowances be made for her support, maintenance and clothing, and for
her education and for all and general relief upon all the proceedings in
the cause.
That all necessary process and copy issue, that this cross bill be taken
as an answer to the bill of Elizabeth Jack, and husband vs W. H. Foust
and others. That process in this cause be made returnable to the 1st
Monday in July 1874.
Martha Simmerman
July 1874
Eakin and Hope
Lewis Shepherd
Sols
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