College Street Land in Asheville
James McConnell Smith was the first white child born west of the Blue Ridge Mountains in Buncombe County. He died December 11, 1853, leaving a will by which he devised to his daughter, Elizabeth A., wife of J. H. Gudger, specific real estate in Asheville, "to her sole and separate use and benefit for and during her natural life, with remainder to such children as she may leave surviving her, and those representing the interest of any that may die leaving children."
However, the deceased's wish for the property to remain in the hands of the family heirs ran into legal problems when a petition was filed in the Superior Court asking for an order to sell this property. The court gave the order, and several lots that included partial payments were sold. The Supreme Court ruled that the sales were void.
However, years passed, and some of the property became quite valuable, while another part of the land went unimproved. There was no remedy until the City of Asheville condemned a portion of the productive part for widening College Street.
The question then arose about how the money the city paid for the land should be applied.
On this question, the Supreme Court decided that the money paid by way of damages should be substituted for the real estate and that, upon the death of the life tenant—be divided among the parties entitled in the same manner as the realty had been if left intact.
The legislature then passed a unique act to sell the land, and the proceeds became a trust fund to be applied as the last will directed.
This was done, but the Supreme Court held that it was, in effect, an attempted judicial act and, therefore, unconstitutional. The legislature afterward passed a general act to sell similarly situated estates. Under this authority, some of the land was sold, and the proceeds were applied to constructing a hotel on another part of the land.
The proceeds, however, proved insufficient to complete the hotel, and action was taken to sell more of this land to complete it.
But the Supreme Court held that while the purchasers of the land had already sold and received valid title to it, the decree for the sale of the other land to provide funds for its completion was void.
Source: Western North Carolina: A History by John Preston Arthur
Genealogy Tips
Legal Records are an overlooked source of family Research.
When there is a question of the law of inheritance, court cases can drag on for years, including those of the Supreme Court of this nation. When a person dies, the last will is filed in the county probate court, where objections to inheritance may arise. In the case of James McConnell Smith, he directed the continuing possession of his land through the children of his daughter. Such a property in downtown Asheville became more valuable. Yet, although we might like to think of our property in the hands of our children and surviving the turmoils of time, it is unlikely. To quote a popular phrase, "As the world turns."