WILL: James Happy, Appeal, 1817 - Fayette Co, KY ----------------------------------------------------- Contributed to the USGW Kentucky Archives by: Karen Scales "kkscales@ashland.com" September 11, 1998 ----------------------------------------------------- Fayette Co., KY Will Book D, page 223 State of Kentucky Courts of Appeals June 2nd 1817 Enoch HAPPY, Bowlware PEMBERTON Plaintiffs } Upon a writ of Error to and Lydia his wife, Richard BARNETT reverse an order of the and Polly his wife Fayette County Court. Against James HAPPY Defendant The Court being now sufficiently advised of and premises delivered the following opinion to wit: This is a Writ of Error brought to reverse a Judgement of the Fayette Count Court in refusing to admit to record a writing purporting to be the last will and Testament of James HAPPY deceased. Since the decision of the Count Court, the original writing is proven to have been either lost or misplaced so that it cannot now be produced and it is objected that probate cannot be granted by this County Court on a Copy but that the only appropriate remedy is by bill in equity. We are unable to perceive any force in this objection the case of a last will is not when excepted by the statute from the jurisdiction given to the County Courts in testamentary matters, and upon principle we do not suppose such a case should from an exception upon the decease of the testator and legatees became vestered with the perfect right to the property under the will, they had the right to demand probate of the will, and it became the the duty of the County Court in the excercise of their Testamentory Jurisdiction upon proper proof to grant the probate. In desiding(sic) whether probate ought or ought not to be granted the County Court it is true should require the original will to be produced if to be had, not however because it is necessary to give them Jurisdiction of the matter, but in obedience to the rule requiring the best evidence the nature of the case is susceptible of, but if the original is not to be had then as a copy constitutes the best evidence in the power of the party upon its production the County Court under the influence of the same rule should proceed either to grant, or refuse the probate if the probate may be granted upon the production of a copy of the original the question occurs was James HAPPY the testator of disposing mind and memory when the original will was executed. The evidence on this point is certainly not of the most conclusive character, but we think is sufficient to show the testator was at the making the will of disposing memory, the subscribing witnesses both think he was so, and the circumstances detailed in evidence do not conduce to a diferent(sic) result. It is therefore considered by the Court, that the said Judgement of the County Court aforesaid refusing the probate of the said last will and testament of the said James HAPPY deceased be reversed and it is hereby annulled and set aside, and the Clerk of this Court is ordered to make a faithfull(sic) transcript of the said last will and Testament, so attested and in this Court fully proved by the subscribing witnesses, George HUNTER and Elijah METCALF, and the said transcript so made from the transcript of record before him filed in this case to the said County Court of Fayette who are hereby directed to admit the same to record in that testament of the said James HAPPY deceased, and to make such further orders in and upon the premises as the Laws of the land and the case may require in conformity to the foregoing opinion, which is ordered to be certifyed(sic) to said County Court of Fayette, And it is further considered by the Court that the planfiss's recover of the defendent their costs in this behalf expended. Which transcript as herein directed is in the words and figures following to wit: "In the name of God amen, I James HAPPY of Fayette County and State of Kentucky being very sick and weak, but of perfect mind and memory thanks be to God, calling to mind the mortality of my body, and knowing that it is appointed for all men once to die, do make and ordain this my last will and Testament, that is to say, principally and first of all, I give and recommend my soul into the hands of Almighty God that gave it, and my body I recommend to the earth, to be buried in a decent Christian burial, at the descretion of my surviving relatives nothing doubting, but that at the resurrection I shall have the same again by the might power of the Almighty God and as touching such worldly Estate as it has pleased God to bestow unto me; I give demise(sic) and dispose of the twenty six acres of the land whereon I now live to my three Daughters Polly BARNETT, Nancy DUNN, and Betsy STIVERS to be equally divided between them to be laid off on STEWARTs line, Secondly I give and bequeath unto my son Enoch HAPPY the residue of my land to wit, Fifty acres after my wife's Mary's Death, Thirdly I give and bequeath to my beloved wife Mary the residue of my Estate both real and personal, with all the profits arising thereupon to do with and manage the same as She may think proper during her natural life, Fourthly I give and bequeath to my daughter Lydia PEMBERTON four hundred dollars after my wife's decease, and after my wife's Death the above mentioned Girls proportion are to be equal to Lydia PEMBERTON. In Testimony whereof I have herewith set my hand and seal thie 8 day of May 1814. James Happy {Seal} Att. George HUNTER Elijah METCALF State of Kentucky Jct. Fayette County to wit: I John D. Young Clerk of the Court of the County aforesaid do hereby Certify that the foregoing is a true Copy from the original will of James Happy deceased as filed in my office. Att. John D. Young Clerk A Copy Test Achilles Sneed CCA. ----------------------------------------------------------------------------- USGENWEB NOTICE: In keeping with our policy of providing free genealogical information on the Internet, data may be freely used for personal research and by non-commercial entities as long as this message remains on all copied material. 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