Original Bill
To the Hon. D. M. Key Chancellor for the 3rd Division of Tennessee, and
presiding in the Chancery Court at Chattanooga in said state.
Elizabeth Jack as next friend of Jerome C. Simmerman with whom joins her
husband, James Jack
vs
William H. Foust
Citizen of Hamilton County Tennessee
Your complainants humbly represent and show to your Honor that
Complainant Elizabeth is the sister of the said Jerome C. Simmerman, one
of the defts. named above, and that Complt James Jack is her husband.
They further show and charge that the said Jerome C. Simmerman is and
has been for several years a person of unsound mind. She cannot say that
he is technically an idiot or lunatic, but his mind is so weak that he
is not capable of managing and taking care of his property and of
tending and dealing and holding an equal and fair hand when in business
when in contact with others, especially the shrewd and cunning, and
therefore is incompetent to transact business, necessarily connected
with his business and person.
They further show that said Jerome C. Simmerman is the owner of the
following lands in the State of Tennessee and in the County of Hamilton
and has been for many years, to wit, one tract containing by estimation
from three to four hundred acres in 3re District of Hamilton county
Tennessee adjoining lands of Samuel Williams, on the North by by J. T
Stringer’s heirs, on the West by the mountain and Tennessee River—One
other tract containing about 35 or 40 acres, and is bounded by lands of
Jno. L Devine and J.H. Anderson in same District and County. One other
tract adjoining lands of Complt. Elizabeth, heirs of J. T. Stringer and
Jefferson Sawyers, containing 35 acres more or less. One other tract
containing 25 acres more or less adjoining the lands of Complainant
Elizabeth and Jefferson Sawyers and others. One other tract of about 62
acres more or less lying in the Ridges, adjoining the lands of the late
W. H. Stringer deceased and others. All of which several tracts of land
lie in the 3rd Civil District of Hamilton County Tennessee, and are of
considerable value, much of the lands are cleared and are or should be
in annual cultivation, and much of it is bottom land, and all of which
cleared land ought to be worth in rents, at least $300.00 annually, from
the year 1869 to the present time.
Complainants further charge that the said Jerome C. Simmerman has an
estate of at least eight hundred or one thousand dollars in the hands of
defendant Foust or should be as they re informed and verily believe, and
they believe a much larger sum in all about four thousand dollars.
They charge that the Complainant Elizabeth, and Oma Bivens and Mary
Bivens were the only sisters of said Jerome C. Simmerman, and only half
sisters to him. He had no full sisters nor brothers. Said Oma Bivens
married Patrick Cobb and both of whom died several years ago leaving
James Cobb and John Cobb their only children and heirs at law to whom
the estate of said Jerome Simmerman is distributable—the said Mary
Bivens intermarried with J. T. Stringer and by whom were borne Richard
and Mollie, her only children and heirs at law and then died. These two
children are minors and re also heirs and distributors to the said
Jerome C. Simmerman. These four children and Complt Elizabeth constitute
the heirs apparent of said Jerome C. Simmerman, and all reside in
Hamilton County Tennessee.
Complainants further charge that within the last few years the defendant
W.H. Foust has been acting as the Guardian of said Jerome C. Simmerman
and has received the rent and profits of his real estate, and also has
had possession of his personal estate, whether under any legal and valid
authority they cannot say. Said Foust has never made but one settlement
with the clerk of the County Court that they can find or hear of which
was on 11th May 1871 and by it he charges himself with $1001.25 cents,
and credits himself with $497.86 cents, nearly one half of the estate
with which he charges himself. Since which time he has made no reports
or settlements and Complainants are unable to know how said estate
stands, but for the two preceding years he took d disbursed nearly one
half, and if he has succeeded since like he did before said settlement
he has exhausted nearly the entire estate in disbursements. Complainants
here to annex a true copy of said prote---ed settlement of May 11.1871,
but it need not be copied, which they pray to be considered as part of
this --.
They charge that the rents which have been or should have been received
from said lands have been all the time large, and readily convertible
into cash and cash has been of the annual value of the per cent per
annum; but the lone amount and condition of said estate has been
concealed and secreted from them and those in interest and is a fraud
upon their rights.
They charge that defendant W. H. Foust and said Jerome C. Simmerman do
not agree and get along well. Said Foust is not any blood relation, but
as to that is a stranger to said Jerome C. Simmerman.
They charge that said Jerome C. Simmerman is very anxious that
Complainant Elizabeth H. Jack his only living sister be appointed his
Guardian as Complainants verily believe and have the charge of his
person and property. They charge that the principal if not entire and
only attention to the person and personal welfare bestowed upon said
Jerome C. Simmerman is and has been bestowed and given by Complainant
Elizabeth H. Jack. They charge that if the said Elizabeth H. was
appointed Guardian of said Jerome C. with powers to look after his
personal comfort, and manage his estate, the same would be of grant
benefit to said Jerome C. in quiting his mind, and causing him to be t
rest and case, a thing that should be much desired by all, but which
cannot be whilsh he is under the legal dominion and control of strangers
in blood.
They charge that Foush has been derelict in duty as his Guardian in not
making settlements and reports as to his Guardianship and is not keeping
said estate at the highest legal rate of interest attainable annually.
And in keeping the true condition of said estate concealed from those in
interest and if known to any other person—only by those using and
speculating upon it as they are informed and believe.
The premises considered Complainants pray that the said W. H. Foust be
made a party defendant to this Bill and answer the same fully. That copy
and subpoena issue to warn them, and let him answer and show when he
took charge of the estate of said Jerome C. Simmerman and what he has
doe with the same, and all about his management thereof annually and
fully render an account of all his actings and doings as such Guardian.
And let him fully show by what authority he is and has been acting all
the time as such Guardian. They pray that an account be taken of said
Guardianship and d-c—e for all such amounts as my be found in hands of
said Foush or should be chargeable to him according to the well defined
principles of equity relation to Guardians and their duties in the
management of their wards’ estates and persons. They pray the said Foust
if he does not voluntarily resign his guardianship be removed—and that
Complainant Elizabeth H. Jack or some suitable, acceptable and
responsible person be appointed Guardian to the person and state of said
Jerome C. Simmerman. And that from time to time such orders and decrees
be made by your Honor touching said property, to and amongst his next of
kin as may appear right and proper under the act of assembly in such
cases made and provided. And to that and they pray that the said
guardianship be had and conducted under the order’s and decrees of your
Honor’s Court, and this cause retained in said Court for such purposes
as above prayed so long as may be necessary, that is, until said Jerome
C. Simmerman shall be restored to sound and disposing mind or shall die.
Let the guardianship be transferred from the County Court of Hamilton
County to your Honor’s Court. And if need be, if not already done, let
an inquisition be awarded as required by law as to the soundness of the
mind of said Jerome C. Simmerman as required by law. And for all general
relief.
Trewhitt. Sharp and Trewhitt.
Sols
State of Tennessee
Hamilton County
Personally appeared Elizabeth H. Jack and made oath in due form that the
facts set forth in the forgoing Bill as stated upon complainant’s
knowledge are true and those stated upon information she believes are
true.
Elizabeth H. Jack
Sworn to and subscribed before me
Feby 11th 1874
J. A. Caldwell
C & M
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