WILL: William Harper, 1814, Fleming Co., Ky ******************************************************************** USGENWEB NOTICE: In keeping with our policy of providing free information on the Internet, data may be freely used by non-commercial entities, as long as this message remains on all copied material. These electronic pages cannot be reproduced in any format for profit or other presentation. Commercial entities must ask for and receive permission from submitter before downloading. ======================================================================== Submitted by: Charlotte Doyle Smith Date: Fri, 23 May 1997 Will of William Harper (1814) Fleming Co. Will Books Book A page 381 In the name of God Amen. I William Harper of the County of Fleming and State of Kentucky being of sound mind an memory thanks be to Almighty God for the same. And for divers (sic) goodouses (sic) and likewise knowing that it is appointed once for all men to die, after Committing my body to the dust and my soul to god do make and ordain this my last Will and Testament in the manner and form following Viz After all my Just debts and Funeral Expences are paid, I Will and bequeath of my Real as well as personal Estate as follows Item 1st I will and bequeath to my loving Wife Mary the third part of my personal Estate also that she is to have the Quiet and peaceable possession of my Brickhouse and other convient Buildings attahed to the same as for as hall be deemed necessary also the one third part of the profits arising from my Lands and tenements during her Natural life Item 2nd I will and Bequeath to my Son Robert Harper all that Tract or Parcel Land which I purchased of Benedit Showdy and also adjoins his own plantation Item 3rd I Will adn Bequeath fto my Son John Harper at the deceas of my wife the plantation which I at present reside on with all the Buildings and improvements thereunto Belonging also the place adjoining the same which I purchased of Joohn Shockey on the following Conditions that he the said John Shall pay to my Youngest Son Alexander Harper the Sum of Seven Hundred Dollars the one half of which to be paid as soon as the said Alexander becomes of age which will be in the month of July in the year Eighteen Hundred and twenty four and the other half in two years after the said Alexander becomes of age provid my wife be dead but if my wife shall be still alive three hundred and fifty Dollars of the above mentioned Seven Hundred shall not become payable by the said John to the said Alexander untill the death of their Mother my wife and in case the said John Shall fail and not make the first payment herin Noted to the said Alexander within one year after it becomes due then it is my Will that the County Court shall appoint as Commissioners who Shall equally Divide the aforesaid Land & tentements by lot between the said John and Alexander. Item 4th I Will and Bequeath to my Daughter Peggy Harper the sum of Five Hundred Dollars Item 5th I Will and Bequeath to my Daughter Polly Harper the Sum of five Hundred Dollars Item 6th I Will and Bequeath to my Daughter Jenny Harper the Sum of Five Hundred Dollars Item 7th I Will and Bequeath to my Daughter Letty Harper the sum of Five Hundred Dollars Item 8th And Lastly I will and Bequeath to my Daughter Sally who is married to Edward Callahan the Sum of one Dollar and to Edward Callahan I Will and Bequeath twenty five cents And it is to be fully understood by this my last Will and Testament that it is my Will and desire that my Sons Shall have my land as Stated and that my Daughters shall be paid their respective Legacies out of the proceeds of my household furniture farming Utensils Stock of every kind and grain that may be on hand. my Negro Boy Bosin and my Stills and Shilling Utensils as well as all money and Outstanding debts that may be Coming to me likewise all my personal property of every kind Excepting only what is already Bequeathed and mentioned by me in this my last Will and Testament And further it is Will that in Case any of my Daughter Shall Marry She shall not be entitled to the before mentioned legacies befor the death of their Mother unless such part as She shall think proper to spare them taken Strict accompt of the Same and at the death of my wife all the before mentioned property which I have allotted for the payment of my Daughters Legacies is to be sold and Equally Divided amongst Peggy, Polly, Jenny, & Letty in manner aforesaid and if the proceeds of such Sale Shall not amount to more than two Thousand Dollars including all charges exhibited aginst any of them for any thing recived after their Marriage from their mother out my Estate and before my wifes death Then and in that case the overplus if any there Shall be equally divided between Robert, John, Alexander, Peggy, Polly, Jenny, and Letty And in Case John, polly, Jenny, Alexander and Letty shall die befor they Come of age or any of them then the sums herein Bequeathed to such as shall decease shall be equally divided amongst my Surving Children as well under as of full age with this Exception paying to Daughter Sally one dollar and to her Husband Edward Callahan twenty five cents at every such death as Shall happen in my family Furthermore it is my Will that my wife Mary and my Son Robert Shall be my Executors to this my last Will and Testament And as Nothing further of this Worlds Goods Seems to trouble my mind I do Cheerfully Design my Body to the dirt when he who gave me being Shall Call me home Recommending my Soul to the protection of the all wise mercifull and Just God and to the Lamb that was slain for the redemption of poor Sinners like unto me. In full Confidence that if I have made an unjust distribution of my Worldly Goods it is an Error of the head and not an intention of the heart hopinf as far as is ignorantly done amiss God will pardon Therefore in the presence of God and the undersigned Witnesses do pronounce publish and declare this my last Will and Testament In testimony whereof I have set my hand & Seal the 15th day of May 1814 Signed Sealed published and William Harper (seal) declared in presence of Ephraim Donavan Thomas Price Richard Moore Kentucky Sct Court of appeals October Term 1815 This instrument purporting to be the last will & testament of William Harper dec'd proved as such in said court at there present term & recorded and the original is hereby transmitted to the Fleming County Court with directions to admitt the same to Record as fully proved in this Court Test Achilles Sneed Clk Kentucky sct Court of appeals Nov 10th 1815 Robert Harper appellant { upon an appeal from a against } Judgement of the Fleming Edward Callahan appelln { County Court The court being now sufficiently advised of and concerning the premises and having inspected the record and proceecings delivered the following opinion to wit. This is an appeal from a Judgement of the Fleming County Court refusing to admit to record an instrument of writing purporting to be the last will and testament of William Harper deceased The only point involved in this case is as to the capacity of the Testor to make his will The Court below seems to have adjudicated wpon the supposition that it was indipensable that the witnesses should respond affirmatively to the very words in the form of the oath administered by the Clerk viz that they believed the Testator was of perfect " sense & memory" This the witnesses refused to swear though they deposed that although they did not think his mind was as perfectly sound as they had seen it that not withstanding he talked rationally & sensibly, and that hey believed he was capable of disposing of his property by bargain & could not have been cheated. A single inquiry might have abviated his difficultly of the court, suppose the will to hav been without asubscribig (sic) witness It is all in the hand writing of the Testator himself. had been written before he called upon the witnesses to attest it, and carries most evidently upon its face evidence of a mind capable of considerable thought of arrangement and disposition of propety, the principle cannot be recognized It would be monstrous to do so that those whose minds & memories were not as good & perfectly sound as they had ever been, could not pass their estate by will. This list of capasity would exculde it is believed most of those who had passed the median of life whose faculty of memory & rigor of mind had beban with the decline of personal strength & activity to loose some of their more rived energies, It is a matter of regret that such a multitude of witnesses should have been summoned up here merely for the purpose of proving the occasional or habitual fits of intempovance his want of domrstic management and his general bad conduct in the latter years of his life for it certainly has no direct or satisfactory bearing on the question unless it shew that his mind & reasoning powers had become absorbed & lost in a serious 7 habitual course of intoxication. But from the whole weight of testimony the mind cannot for a moment hesitate as to the capacity of the man to dispose of his property. He had not for a considerable time before been in one of those fits of intemperance not even for months preceeding and he seems to have been very capable of drawing instruments of writing and doing common & ordinary business if he chose to do so. But could we doubt the intellectinal powers of the Testator to dispose of it for the reasons assigned by him aught to have great weight towards aliviating the doubts, as those statements were made to particular friends at different times and sometimes when the disposition of his estate be particular subject of his inter view and although he seems to have become reconciled measurably shortly before his death to his son inlaw who had in a great degree incured his displeasure still as he had made & duly executed his will in writings nothing but another writing could have the effect of cancellin or avoiding the former upon the whole case there is not a doubt of the Testators legalcapacity to make his will. His will itself from its system & manner of execution drawn by himself is unquestionable proof of his capacity and the subsequent conversations relative to an intention to change it are but further evidence of that previous disposing power. Therefore it is considered by the Court that the Judgement of the County Court rejecting the probate of the said last Will and Testament of William Harper deceased be reversed and set aside that the said will & testament be here recorded as fully proved and the original transmitted to the said county Court of Fleming to be there admitted to record as ully proved in this court and thereon to proceed as the law directs in like cases which is ordered to be certified to said Court. Fleming Count Sct January Count Court 1816 This last will and Testament of William Harper Dec'd Together with the opinion of the Court of appeals was this day produced in Court and ordered to be recorded. Att Alexr S. Lyle, D.Clk