Susan:

Good catch on the failure to expressly name an executor or executrix. The legal consequence of this failure almost everywhere would be to preclude anyone from acting in such capacity, though I suppose one might at least argue that the Will manifested an intention for there to be an executor.

Absent a named executor, the ONLY avenue available would be the appointment of an administrator. While a court could probably act sua sponte to appoint an administrator, this would be very unusual, though such might occur if there was some indication that there was such perishable property that failure to name an administrator quickly might result in the dissipation or wasting of the estate. More commonly, especially for small estates, the court would wait for someone to apply. Preference would be given to legatees, heirs or even creditors over someone without any interest in the estate.

UNLESS someone brought it to the attention of the court that the provisions of the Will were NOT being carried out, most courts would probably overlook appointment.

The 1802 date on the probate file may reflect that the matter was considered "open" because no Inventory or final distribution had ever been filed.

You stated:

>> My original guess was that the reason the will was revoked was because
>> the executrix and sole beneficiary--widow Hannah Ashmore--had died,
>> so that the will was essentially meaningless.

This would NEVER be a reason to REVOKE a Will. Typically, express bequests to legatees vest and pass to to the legatee at death (absent some contrary provision in the Will), subject to the control of the executor or administrator to marshal the assets to pay the claims of creditors during the pendency of probate.

If Hannah ASHMORE had died after her husband, the property bequesther to her would have already been HERS and an administration would have been opened as to Hannah ASHMORE's Estate. To the extent that a named executor or executrix dies, control of an estate might pass to an alternative executor IF NAMED in the Will or to a court appointed administrator if not.

Of course, if the sole legatee were to predecease the testator OR if the Will had some express provision providing that a legatee needed to survive the testator for some period of time, a bequest might revert to some residuary beneficiary or if no residuary clause was in the Will, the property would pass by law pursuant to rules of intestate succession. You are certainly correct that to the extent that Hannah and her husband shared COMMON heirs at law, such as children, then the effect of the death might be roughly equivalent to the Will having never vested the interest. But if there were NO CHILDREN, the outcome would be quite different, since if Walter ASHMORE died without a Will assets would pass to the wife and HIS heirs at law, but after the express bequest, Hannah's heirs at law (possibly surviving parents or siblings) would receive Hannah's share and Walter's heirs at law would get NOTHING. Revocation of a Will would NEVER be an avenue to resolve the death of the sole legatee.

You indicate that you find the idea of a forgery to be far fetched. But revocation of a Will is such an EXCEPTIONAL outcome that it would have almost certainly had to be something of this sort which would result in this outcome!

The cardinal rule in court construction and enforcement of Wills is the intent of the testator. Absent some testamentary provisions which violate public policy, for example, your bequeathing all of your property to ISIS to conduct a terrorist campaign or specifying that your property be sold to purchase illegal drugs to be given out to elementary school children, what the testator provides in the Will CONTROLS even of all of the legatees were to agree otherwise. However, as a practical matter, if EVERYONE were to agree to some disposition which neither offended public policy nor seemed to be contrary to the express wishes of the testator, then a court would probably go along with such settlement.

It is really TERRIFIC that you have ordered a copy of the Mecklenburg Will. It appears that the extant document is the ORIGINAL WILL rather than a recorded COPY. This means that it will be handwritten in the hand of the person who wrote it rather than the handwriting of the Clerk and would have original signatures of the FINCHERS as witnesses.

I am inclined to believe that you are right about Archibald HENDERSON being the attorney. But for whom?

It is quite UNLIKELY that HENDERSON sought the revocation of the Will without someone urging this. You have treated the identification of Hannah ASHMORE as the sole legatee as some evidence that Walter ASHMORE had NO OTHER children or relatives. This seems to me to be an exceptionally strained reading of the abstract. We should necessarily await receipt of the Will to garner what it means.

But even if the Will identifies Hannah ASHMORE as the sole legatee, if the language is as terse and uninformative as the abstract, such langauge would hardly be conclusive evidence that there were no other relatives. It might instead reflect that the testator was not competent or had been subject to undue influence, etc. It is for this very reason that when someone is being disinherited, it is better to leave such a person one shilling or one dollar, etc., to show that the testator remembered the person and had expressly decided to EXCLUDE THEM.

But this brings things back around to the significance of the revocation. If a Will was offered for probate which was inherently UNJUST and which made provisions which arose from duress, undue influence or fraud, then the CONTEST of the Will would ordinarily be made when the Will was presented.

Now IF the Will had only been then JUST presented, as in probate in 1798 and then revoked a month later, this would be a very different matter than if the Will was probate in 1795 and revoked in 1798. It is NOT altogether unusual during the period when a matter is subject to appeal for a court to be asked to REHEAR a matter. So IF a Will was presented and then accepted for probate before anyone had a fair opportunity to respond, then if an heir at law appeared at the next Court session and asked the court to reconsider, the person contesting the Will would probably be able to defeat the Will if its provisions were quite UNUSUAL and seemingly UNFAIR, supported by some evidence of duress, undue influence or fraud. A Will might be defeated with a far lesser showing.

Even so, the measure isn't merely that an heir at law was overlooked or ill treated by the Will, because the testator is absolutely at liberty to freely dispose of his or her property as he or she sees fit. So if a child were to appear and show that the provisions of the Will were UNFAIR, this would hardly be enough. There would need to be a further showing that this wasn't really what the testator would have intended but for the duress, undue influence or fraud.

* * *

You still have NOT acknowledged or commented about the Census records showing the migration of William and Walter ASHMORE to Greenville. Secondary sources have at least one of the ASHMORE daughters marrying and relocating to Greenville, SC, as well. This seems to me to be the seven ton elephant within the extant evidence.

If Walter ASHMORE (b 29 Mar 1779, d 07 Mar 1833 - Greenville, SC) LIVED and migrated to Greenville, SC, by 1810, then WHO is this second Walter ASHMORE you imagine has appeared in Mecklenburg?

In my view COMMON SENSE dictates that Cleranah ASHMORE is one and the same as "Hannah" and there is one adult Walter ASHMORE who made an exceptionally POORLY thought out Will.

In the end, while examination of the Mecklenburg Will is going to be HELPFUL, it would seem to me that further study of the children -- William, Walter, Margaret, Mary and Ellinor -- and study of the LAND RECORDS is going to be the key to arriving at a conclusive disposition. You were certainly right to note that there seemed to be a bequest of land to Cleranah ASHMORE. That LAND needs to be located to be sure!