Legal Records as Proof as Descent from James Maxwell of Tazewell County, Virginia

aunt minerva collection. this goes with the preceeding letter from Cora Whitley Bertram

When the traditional family stories cause confusion in tracing your ancestors try using all the legal records that can be located. They can, sometimes, solve the problem; by comparing the land records, will, tax records and a Chancery Court record the facts did come together to prove who some of the children of Capt. James Maxwell of Tazewell Co., Virginia (ca. 1740-1821) were. All of those papers, plus the help of a thorough researcher, Mrs. H.S. (Pat) Surface, the following is what was learned:

The Will of James Maxwell, referred to at various times as Captain or Major, is in the Tazewell Co., Va. Will Book I, page 137-written 28, August,1820-proven 27, March 1821 and signed with his signature. He names his "wife, Jane", daughter, Mary, and her son Maxwell Cammill" (in later documents "Cammill" is spelled Campbell.) "Four daughters, Elizabeth, Margaret, Jane and Nancy" and "sons" John, William, Robert and James. In the geneaological book "Archives of the Pioneers of Tazewell County, Virginia" by Netti Schreiner-Yantis- (Pgs. 274&275) it is shown that there is much confusion in the ilneages sent to D.A.R. and published family tradition. One thing, did he have a son named Thomas? There is no son, Thomas,named in his will; he mentions all of his children by name, even tho for some, he states that they have already "received" their inheritance--so it seems he would have mentioned a son, Thomas, if there was one--unless he was already deceased, as of course he did not mention the two small daughters, (said to have been named Mattie & Jennie) who were killed by Indians in 1782. (There had been a Thomas Maxwell who lived in the vicinity, and was killed by Indians at what was later named Maxwell Gap at an earlier time, however he seems nearer to James Maxwells age than to the age of James' children--possibly a brother rather than a son.)

A Capt. James Maxwell is shown on the 1788 tax list for Montomgery Co., Va. with no white male above 16 & under 21 years, no slaves, and 10 horses. The 1800 tax list for Wythe Co., Va: James Maxwell with 1 white male over 16 years, no slaves, and 8 horses. 1820 census of Tazewell Co., Viginiia: James Maxwell in the over age of 45 group (In the same age group there is listed Audley Maxwell and a John Maxwell-possibly brother or John could even by a son born by 1775.) In the 26 to 45 group is a John Maxwell (possibly the John who married Jane Maxwell, daughter of Capt. James. A Thomas Maxwell is listed in the 16-26 age group. (could be a son of Audley or John of the over 45 group.)

Tazewell County, Virginia Deed Book #3, pages 256, 257 & 258-1822 give the names of the spouses of the daughters of James Maxwell. This is a deed of transference of the land to Mary by the other daughters to meet the requirements of the Will, mentioned earlier,named are: Margaret (Peggy) Whitley, wife of David Whitley; Elizabeth Marss, wife of Henry Marrs; Jane Maxwell, wife of John Maxwell and Nancy Whitley, wife of Paul Whitley. The Will and the Deed clearly show that these are the children of James and Jane Maxwell, Not of Robert Maxwell.

As to the other question- To whom do the two small daughters killed by Indians- 1782, belong? Robert or James Maxwell? The statement that was given under oath, In the original file of the Court Clerk of Augusta County, Virginia-Chancery Court- suit N.S. 45-Maxwell vs. Pickens, by James Maxwell: He states that "he had two daughters murdered by Indians in 1782-upon the land that is in dispute." Depositions that were taken for that court action also states that "Maj'r Maxwell had two of his daughter destroyed by Indians" by Samuel Walker; Herny Marrs maes reference to "Maxwel's daughters" being murdered by Indians- Thomas Peery, Christopher Marrs also confirm this fact. Therefore James Maxwell was their father, not Robert. Other enlightening information from this suit and sworn to in written despositions of James Peery, John Peery, and affirmed to by Wm Wynne as well as the earlier named, is that "James Maxwell came upon this land from the conty of "Botetourt"-"in the year of 1772 in the month of March"-"immediateally returned home and removed his family to the land." The word "family" gives the impression that he had not only a wife, but also a child (or children?) by mid-1772. (All of these depositions are quite extensive and were taken over a period of about 5 years, 1804-1809.)

In researching this family it has been interesting to notice the change of the County Lines and the number of counties that this piece of land has fallen in, between the year 1772 and 1776 it was in Augusta County, Montgomery County was formed in 1776-from Montogomery into Wythe County when it was formed in 1789 and finally came to rest in 18010 in present Tazewell County.

In the will, mentioned above, James Maxwell states "665 acres Back Valley--upper end--join land of James Harrison--150 of it to go to daughter, Mary." Unto "my four daughters an equal share of the tract of land in the Rich Mountain containing 250 acres, likewise and equal share of the 515 acres of land in Back Valley--the resideu of the 665 acres in which Mary has her share."

Shown on the Tax Lists on page 147 of "Archives of The Pioneers of Tazewell County Virginia" Tazewell Co. land tax for 1814: Maxwell, James Sr.--Tazewell 250 ac.N. side of Rich Mountain, Tazewell 665 ac. on Maxwell's Creek--also is shown: William Maxwell with 150 acres head of Clinch adn a Robert Maxwell-180 ac.-Sandy River (Ridge?) A land grant was given James Maxwell for 705 ac. 17 October 1804- Surveyed Oct 1, 1803 (?is this an error?) pm Clinch adj. to John Tollet-crosses Cavits Branch-crosses Cave Creek- on Bells Line. In the deed of transfer to Mary and Maxwell Campbell-Deed Book #3 pages 257 & 258 it so states that this is the 150 ac. mentioned in James Maxwells Will and signed by David and Peggy Whitley, Herny and Elizabeth Marrs, John and Jane Maxwell, and Paul and Nancy Whitley. -dated 28, May 1822. Deed Book #5 page 474-Tazewell County, Va. 1833: Sale of land by heirs of James Maxwell, namely, David and wife, Margaret Whitley, John and his wife, Jane Maxwell, Elizabeth wife, of deceased Henry Marrs and Nancy, wfie of deceased Paul Whitley. Sold to James Wnyy land containing 250 acres on Rich Mountain-Bells Line. --Dated 31, Jan. 1833.

Not only do we learn the names of the spouses of James four daughterss, other than Mary, but in the eleven years between the Transfer and Sale of land in 1833, Herny Marrs and Paul Whitley are deceased. Who were the wives of James sons? There are marriages of Maxwell men in Tazewell County-there only seems to be other proof that Son, James, did in fact marry Mary Whitten 25, April, 1804. (A personal note: Margaret/Peggy Maxwell did marry David Whitley-Lic. is in Washington Co., Va. & is dated 24, Jan. 1797 and it is through them that I decend-Cora Whitley Bertram-Mrs. Jack L.)