426. Mary E.⁵ Burney (Judge David Calhoun⁴, Margaret 'Peggy'³ Allen, Susan 'Susy'² Colbert, James Logan¹)⁽³⁴⁸⁸⁾ (#51) was born in IT 16 DEC 1846.⁽³⁴⁸⁹⁾ Mary died 5 JUL 1872 in Willis, Pickens Co., Chickasaw Nation, IT, at 25 years of age.⁽³⁴⁹⁰⁾ Her body was interred JUL 1872 in Willis Cemetery, Willis, Marshall Co., OK.

She married twice. She married Albert Henry Gaines circa 1866.⁽³⁴⁹¹⁾ (Albert Henry Gaines is #1214.) Albert was born in IT, 31 AUG 1845.⁽³⁴⁹²⁾ Albert⁽³⁴⁹³⁾ was the son of James T. Gaines. Albert died 10 DEC 1866 in Burneyville, Pickens Co., Chickasaw Nation, IT, at 21 years of age.⁽³⁴⁹⁴⁾ His body was interred DEC 1866 in Gaines/Burney Cemetery, Burneyville, Love Co., OK. Albert's will was probated in Berwyn, Pickens Co., Chick Nation, IT, 15 MAY 1867.⁽³⁴⁹⁵⁾ She married Gov. Benjamin Franklin Overton in Berwyn, Pickens Co., Chick Nation, IT, 19 MAR 1870.⁽³⁴⁹⁶⁾ (Gov. Benjamin Franklin Overton is #53.) Benjamin was born in MS, 2 NOV 1836.⁽³⁴⁹⁷⁾ Benjamin⁽³⁴⁹⁸⁾ was the son of John Richard Overton and Tennessee Allen. Benjamin died 8 FEB 1884 on farm nr Willis, Pickens Co., Chickasaw Nation, IT, at 47 years of age.⁽³⁴⁹⁹⁾ His body was interred FEB 1884 in Willis Cemetery, Willis, Marshall Co., OK. Benjamin immigrated, JAN 1839. Destination: destination unknown. According to conflicting evidence, he married Judith Elizabeth 'Bettie' Smith in Berwyn, Pickens Co., Chick Nation, IT, 14 MAY 1875.⁽³⁵⁰⁰⁾ Benjamin's occupation: Chickasaw Governor in Chickasaw Nation, IT, before 1884.

B. F. OVERTON was a mere child when he removed with his family from Mississippi to Indian Territory. Soon after his father had deserted his family there, his mother died. He was raised in the homes of his uncles, Isaac and Robert Love. When a young man he established his home on a farm on the Red River near the town of Willis, Pickens Co., Indian Territory.

(Mrs W.J. Shelton of Oakland, OK. and Mrs Frankie O. Love, were daughters of B.F. Overton).

She was listed as a resident in the census report on '1855' Choctaw Roll, Chickasaw District, IT, DEC 1856.

Mary E. Burney was a daughter of David Burney, and a sister of Benjamin Crooks "B.C." Burney who was governor of the Chickasaw Nation 1878-1880. She was also married to Benjamin Franklin Overton, a Chickasaw Governor 1874-1878, 1880-1884. She is buried in the Willis Cemetery, Marshall County, Oklahoma. Her gravestone states that she died on July 5, 1872. All known historical sources are in complete agreement with these facts. Many sources list her as Mary C. Burney, however it is clear from both her gravestone and her marriage record, as listed in the old Pickens County, Indian Territory Record Books, that her name was Mary E. Burney. If all the conflicting facts about Mary were this easy to solve, then we would have no mystery, but this is simply not the case.

To begin with, Mary's gravestone also indicates that when she died she was 25 years, 7 months, and 20 days old. Simple calculations would then put her birth date at about December 16, 1846. It is this year of 1846 that most historical sources frequently cite as Mary's date of birth. There is only one problem with an 1846 birth date, it does not fit the facts.

Let's review those facts. David Burney is listed on the 1830 Mississippi Federal Census. It shows that he had three female children. His first wife was Lucy James, whom he had to marry sometime before 1830. In the winter of 1843-44, he removed with his family to Indian Territory by steamboat. They stopped long enough in Shreveport, Louisiana, for the birth of a son Benjamin Crooks Burney on January 15, 1844. Sometime in 1845, David's wife, Lucy (James) Burney died in the childbirth of their daughter Rebecca Burney. (Rebecca later married Col. J.J. McAlester). Sometime later, David Burney married a second time to Emily (Love) Roark. She is said to have been the widow of John Preston Roark. With possibly the exception of exactly when in 1845 Lucy (James) Burney died, all the sources agree on these basic facts.

Marie King Garland, the noted expert on the Love families, in her book, The Chickasaw Loves and Other Allied Families, states that John Preston Roark first married Sarah Love, a sister of Emily Love, on January 28, 1841. Apparently, this date is taken from an entry in the Bible belonging to Mary A. Love, a sister to both Sarah and Emily Love. (All were daughters of Isaac Love.) Further, Garland states that after the death of Sarah (Love) Roark, J.P. Roark married Sarah's sister Emily. Both Garland and the Love Bible indicate that Sarah died on March 3, 1847. Logically then this would mean that Roark would have to marry Emily after March 3, 1847, and that David Burney would then later marry the widow Roark at a still later date. (Garland does state that this is in fact the Emily (Love) Roark that David Burney marries.)

Already we can begin to see some problems with the "1846" birth date of Mary Burney. Simply put, David's first wife, Lucy (James) Burney, died in 1845, and based on the above facts, David could not have married Emily (Love) Roark any earlier than in 1847. But, this is still not the end of our other facts.

Edward Sehon Burney, a son of David and Emily Burney, testified before the Dawe's Court in the case of his brother-in-law, B.J. Vaughn. Vaughn was trying to re-establish his citizenship claim as an "Inter-married White", based upon his marriage to Emily Burney, a daughter of David and Emily Burney. In the court testimony, it was established that David Burney had been married twice. First to Lucy James and second to Emily (Love) Roark. Rebecca Burney testified that she was a half-sister to Emily Burney, they having the same father but different mothers. Edward testified that David and Emily had several children, (several of which have here-to-fore been overlooked by historians). He named those children in the following order; Wesley, Mary, Margaret, Frances, himself, Nancy, and Emily. He also testified that David and Emily Burney also had two children that died at childbirth.

There was also testimony presented that Emily (Love) Burney had been previously married to a Roark, and that she had had one child by him.

Edward also testified that the "Mrs. E. Burney" on the 1878 Chickasaw Payroll was his mother, the widow Emily Burney, and that the male and female child enumerated with her were himself and his sister Emily.

It is clear from early Pickens County, Indian Territory, marriage records that the other children of David and Emily Burney had married by 1878, and hence "left home."

If we accept the order of children as Edward listed in his testimony as the order of birth, then Mary Burney would be "at least" the second child, born sometime after Wesley Burney was born. (I say "at least" because we do not know when the two children who died in childbirth were born.)

It would certainly be helpful, if someone could come forward with a copy of the marriage records of J.P. Roark to Emily Love and David Burney to Emily (Love) Roark. Unfortunately, at this time, that information is not available to me. Then again, these might take away some of the mystery of this case.

If Mary Burney was the second child, then she would have to be born after April 5, 1849, the date of birth of Wesley B. Burney. (As an aside, was Wesley's middle name "Bowman" as some sources indicate, or "Browning" as other sources state?) Simply put, if Mary was born after Wesley, then she could not have been born in "1846". But, there is still more to this mystery.

Recall, from the above, there was testimony that Emily Love and Roark had one child. Garland in her book, states that this birth took place circa 1848, and the child's name was Benjamin Franklin Roark.

It is my belief, that Garland, facing the same problem of making facts fit together, chose the "circa 1848" date in order to make the sequence of historical events fit together. Simply, if J.P. Roark didn't marry Emily Love until after her sister's death in 1847, then their child could not be born until 1848, hence "circa 1848".

However, fortunately or unfortunately, depending on your point of view, there is an entry in the Love Bible that indicates that Benjamin Franklin Roark was born on May 10, 1845.

We are now faced with new problems. Assuming that Garland is correct when she states that Benjamin Franklin Roark was the child of J.P. Roark and Emily Love, and further assuming that the birth date of May 10, 1845, for Benjamin Franklin Roark is correct as stated in the Love Bible. Then we have another conflict of date problem. However, this conflict really only occurs if we assume that the statement that, "Emily Love married J.P. Roark, the widower of his sister Sarah (Love) Roark," means that Emily married Roark after her sister's death.

Perhaps we should pause here and take a closer look at that period of Chickasaw History we are discussing. While it is true that historians usually denote 1835 as the time of the Chickasaw removal from Mississippi to Indian Territory, the actual removal period lasted for many more years. Witness the fact that David Burney and his family did not remove until the winter of 1844. It appears that J.P. Roark and his family also arrived in the Indian Territory in 1844. Until passage of a law specifically prohibiting polygamy on November 27, 1857, polygamous marriages were perfectly legal in the Chickasaw Nation, and was so practiced by many men.

If as stated before, Sarah Love and John P. Roark were married in 1841, then they were probably married in the old Chickasaw Nation in Mississippi. Further, without the availability of Emily Love and J.P. Roark's marriage record, one could just as easily assume that they were married during the same time that Roark was married to Sarah Love.

Using this assumption, we could accept as true both Garland's statement that Benjamin Franklin Roark was the child of J.P. Roark and Emily (Love) Roark, and the May 10, 1845, date of birth as set out in the Love Bible.

In 1847, a census was conducted of all the Chickasaw inhabitants of the new Indian Territory. While we all know that census information is certainly not infallible, it should be noted that there is no entry for Roark on the census. Bear in mind that this census only listed by name the heads of households, so while a minor child would not be listed by name, a widow generally was.

Of course, Sarah (Love) Roark died in early 1847, and the listing for David Burney indicates that he had 8 in his family. While we have no specific records as to who these people were we can speculate based on certain known facts. We know that his first wife Lucy James died in 1845, so she would not be in that number. Rebecca Burney would be about 2 years old, and Benjamin Crooks Burney, about 3 years old. So there is two people. We know that David brought his mother, Margaret "Peggy" (Allen) Burney with him and is probably a member of his household, so that makes three. (Early Pickens Co., Chickasaw Nation, Probate Records show a probate proceeding in the estate of Margaret Burney, deceased in 1856, so it can be assumed that in 1847, she is still alive.) There are two other known children of David and Lucy Burney, being Amanda and Susan D. Burney. That brings us up to 5. Counting David, himself, our total is now 6. That just leaves two to be accounted for.

It is entirely possible that David Burney married Emily (Love) Roark in 1847, and that she was part of his household during the time of the census. (If he did, and if she was, then it is also possible that her son of about 3 years of age, Benjamin Franklin Roark, would also have been counted and that would then total 8.) While not impossible that he married her in early 1846, and that they had Mary E. Burney as their first child about December 16, 1846, it is rather doubtful. While it is certainly true that J.P. Roark could have died in 1846, and that it was Sarah Roark who was already pregnant with the child Henry Roark, who was born on January 9, 1847, it could also be just a true that Emily Roark was the mother of Henry and hence could not have had Mary in 1846. So when was Mary E. Burney born?

If she was the second child of David and Emily Burney, then the earliest possible date would be in 1850/51. We know from the marriage records that she married B.F. Overton on March 19, 1870. On that marriage record, her name is listed as "Mary E. Gaines". Her first marriage was to Albert H. Gaines, who died on December 10, 1866. According to Garland and other sources, they had one child named James T. Gaines, Jr., who died on November 23, 1884. At this time, we do not have the birth dates of the third and fourth children of David and Emily Burney, being Margaret and Frances Ellen Burney, but we know Edward Sehon Burney's birth date to be January 20, 1861, (the fifth child). This gives us a window of about ten years between the birth of Wesley Burney in 1849, and Edward Burney in 1861, in which to fit the births of Mary, Margaret, and Frances, and possibly the two children that died at childbirth.

To put things in further perspective, we need to remember the tragedy that was taking place in the Indian Territory in the early to mid 1860's -- the Civil War.

With all the above information, with all the exercises in deductive logic, wouldn't it be ironic, if the information on Mary E. Burney's gravestone was simply incorrect. What a horrible joke to play on historians. I KNOW IT HAPPENS! My own father, Mickey H. Armstrong is buried in the Woodville Cemetery in Marshall County, Oklahoma. His gravestone reads that he died on January 31, 1973. I know for a fact that he died on New Year's Eve, December 31, 1973. An 11 month difference! My uncle who ordered the stone simply became confused over the dates, and after the mistake was discovered, just decided not to waste a perfectly good gravestone. What difference would it make if the date was a little off?

I would speculate that Mary E. Burney's gravestone is also not correct. Recall that she was not B.F. Overton's first wife, nor his last. She was his second known wife -- he had a total of four known wives. Both his first wife, Sara Clemintine Jones, and his third wife, Judith Elizabeth Smith, are also buried in the Willis Cemetery with him. Both have similar gravestones to Mary's in that they list a date of death and also an age at death in the same "years, months, and days" format. (His fourth wife, Mattie Carter, outlived him and later remarried.)

Accepting those dates and the know birth date for Mattie Carter, February 20, 1862, one interesting fact develops about B.F. Overton. He liked his wives young. In fact, if we even change Mary E. Burney's birth date year to 1851, she would have been the oldest woman that he married, coming to the wedding ceremony at the ripe old age of 18. Sara was 17, Judith was 17, and Mattie was a mere 16 year old.

I would suggest that Mary E. Burney was probably 21 years old, not 25 years old when she died. This would make her birth date about December 16, 1851, and as such it would fit nicely with all the other facts we know about the Burneys. Further, this would make her about 15 years old on her birthday on December 16, 1866, and thus while she would have been only 14 years old if she married Albert H. Gaines in late 1866, 14 was not such an early age for a young woman to marry, especially under the circumstances of the Civil War era and the years immediately following.

After we have looked at all the facts we can find. After we have juggled them, turned them every which way, and tried to piece them together like some giant jig-saw puzzle. We come to one inescapable conclusion, something just does not fit. Until new facts are discovered, until someone else comes forward with a new explanation, all we can go on, is our best guess. (Of course, maybe David Burney had two daughters named Mary!!!)

Recently, new facts have come to light, the "1855" Roll of Choctaws Living in the Chickasaw District. This Roll was actually made in late 1856. It is called the "1855 Roll" as it referes to the 1855 Treaty made between the United States, the Choctaws, and the Chickasaws over the purchase of land in Indian Territory by the Chickasaws from the Choctaws for use as the Chickasaw Nation. The roll was actually a roll of payments made to each Choctaw Indian as their proportionate share of the purchase proceeds. The David Burney Family, as it was constituted then, is on that roll. I will not comment on whether or not the Burney's were legally entitled to participate in these payments, only to state that tradition has it that David Burney's grandmother, (mother of Simon Burney), was supposed to be a Choctaw. More importantly for our on going construct is the names and their order or listing for the Burney Family on this roll.

It is important to note, although not always followed, that the usual practice was to list first the husband, then the wife, then the children in decending order of age. If there were children from a prior spouse in the home, they were listed seperately. The listing on the roll was as follows.

David Burney Emily Mary Wesley Margaret Frances Benjamin Susan Rebecca

Applying our established facts we know the roll was made in November/December 1856. We Know that David has married to Emily (Love) Roark by this date. That Wesley Burney was born 5 April 1849, Benjamin Burney on 15 Jan 1844, Susan Burney in 1836, and Rebecca Burney about 1845. We know that Benjamin, Susan, and Rebecca were child of David and his first wife Lucy James. If we accept Mary, the first child listed, as a child of David and Emily Burney, then by the end of 1856, this means that they had four children, Mary, Wesley, Margaret, and Francis. Further, if we accept, according to the customary practice, this order being also their order of birth then we can make the following conclusions.

1. Mary was born before 1849.

2. Margaret was probably born about 1851.

3. Frances was probably born about 1853.

Again we do not know when the "died at childbith" children were born, but they are not really important at this time to this time frame. What is important is that if Mary was indeed older than Wesley, hence born before 1849, then all our theories for a 1851 birth date as set out above are out the window, and we now must devise a new construct. When was Mary born?

Once again we return to the birth date for Mary taken from calculations made from her gravestone, 16 DEC 1846. A date that would make her just about two years older than her brother Wesley. Certainly a proper period for childbirth spacing.

I now believe that 16 DEC 1846 is the correct birth date of Mary E. Burney, and that she was the oldest daughter of David and Emily (Love) Burney. Accepting this premise as true, then how do we justify our other conflicts concerning Emily, John P. Roark, and their son Benjamin Franklin Roark? There is only one Benjamin listed on the roll in the Burney Family, Benjamin Roark or Benjamin Burney? What happened to the other?

First, we have no actual proof that Emily Love ever actually married John Roark. What we are really left with is the speculation that John Roark, as many men did at the time, had two wives at the same time, or he simply took some liberties with his wife's sister. For ligitimacy sake, and good taste, we will assume the former for now until other evidence come forward.

We do not have an exact date for the date of death for Lucy (James) Burney, only a source that sates that she died in childbirth with her daughter Rebecca, and that date has been calculated to be 1845. It is certainly possible that she died in early 1845, that Benjamin Franlin Roark was born to Emily Love on 10 May 1845, that David Burney married her in 1845 or 1846, that she soon became pregnant with his child Mary E. Burney, and she was born on 16 DEC 1846. Which I believe was in fact what happened. I believe that Marie King Garland was simply in error when she tried to justify a marriage of Emily Love to John Roark occuring after the death of Emily's sister in 1847, while ignoring the 1845 birth date for their son Benjamin Roark.

Our only unexplained question now becomes, which Benjamin is on the Roll and what happened to the other? Benjamin Burney was born in 1844 and would be almost 13 in late 1856. Benjamin Roark was born in 1845 and about 11 1/2 year old. Both Benjamins are too young to be off on their own. David Burney would certainly want to collect the money for his young son, so this must be Benjamin C. Burney on the roll. So what happened to Benjamin Roark?

We do not know what happened to John P. Roark, we do know that according to the Bible entry, his "other" wife and Emily's sister, Sarah (Love) Roark did not die until 3 MAR 1847. If John Roark was still alive at the time of the birth of his son, would he have not have taken his son to raise, and would that have not been even more true if John was alive when Emily married David Burney? I suggest that is exactly what happened.

Therefore, our conclusion, until other proof comes along, is that Mary E. Burney was in fact born on 16 DEC 1846, and she was the child of David and Emily (Love) Burney.

Mary E. Burney and Albert Henry Gaines had the following child:

1136 i. James T.⁶ Gaines Jr.⁽³⁵⁰¹⁾ (#4680). James died 23 NOV 1884 in IT.⁽³⁵⁰²⁾

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