APPEAL RECORD FOR DEVINNEY HEIRS VS.. HANNAH DEVINNEY, ET AL. ****************************************************************** File transcribed and contributed for use in the USGenWeb Archives by: Jim USGENWEB NOTICE: In keeping with our policy of providing free information on the Internet, material may be freely used by non-commercial entities, as long as this message remains on all copied material, AND permission is obtained from the contributor of the file. These electronic pages may NOT be reproduced in any format for profit or presentation by other organizations. Persons or organizations desiring to use this material for non-commercial purposes, MUST obtain the written consent of the contributor, OR the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. ****************************************************************** State of North Carolina Guilford County Be it Remembered that at a Court of Pleas and quarter sessions began and held for the County of Guilford at the Courthouse in the town of Greensboro on the third Monday of August, 1851, it being the 18th day of said month when and where the following Magistrates were present, who comprised said Court, to Wit, Peter Adams, Frederick Fentress Jed H. Lindsay & Arch'd Wilson Esqrs, When and where a Petition was filed in our said Court which is in the words and figures following, to Wit. North Carolina } Guilford County } Court of Pleas an quarter sessions August Term 1851. To the worshipful the Justices of the Court of Pleas and quarter Sessions. The petition of Jesse Divinny in his own right and as Executor of Divinny deceased, Enoch Pugh & Pathia his wife. against Hannah Divinny, Lewis Walker & Nancy his wife, Madison Brown and Lucinda his wife, David Bain & Fanny his wife, Samuel Divinny, Madison Divinny, Clement Divinny & Jesse Devinny Jur children of James Divinny deceased, Abner Divinny, Thomas Divinny, Fanny Brown, Elizabeth Albright, Samuel Divinny, Jacob Coble, Hugh McKegg, Samuel Jones & Caty his wife Euly Coble, Lydia Coble, Greenberry Grace, and Jane his wife, Henry Grace and Nancy his wife & Lydia Hunter Humbly complaining show unto your worships your petitioners aforesaid that Samuel Divinny died in the County aforesaid in the latter part of the year 1834 or beginning of 1835, after having made a last Will and Testament duly executed to pass both his real and personal estate, which said will was duly proven and Recorded at February Term 1835 of the Court of pleas and quarter sessions for the County aforesaid and Anne Devinny & Abner Divinny two of the Executors therein named qualified and took upon themselves the burthen of executing the same and after the death of the former & removal of the latter your petitioner Jesse who had also been named as executor qualified as such. Your petitioners show unto your worships that there are four slaves belonging to the estate of the said Samuel Divinny that do not pass under his last Will and Testament and to which he died intestate, Viz, Fanny & her child, Jake, Abram & Hannah and that the same belong to your petitioners and the Defendants as the next of kin of the said Samuel. That the said Samuel left, twelve children him surviving, vz, Jesse, James, Abner, Thomas, Pathia who intermarried with Enoch Pugh, Fanny who intermarried with Brown, Elizabeth who intermarried with Albright, Samuel, Lydia who intermarried with one Coble and is since dead leaving children Jacob, Nancy who hath intermarried with Hugh McKegg, Caty who hath intermarried with Samuel Jones, Euly & Lydia. Also Jane who intermarried with Greenberry Grace, Nancy who intermarried with Henry Grace Lydia who intermarried with one Hunter & Hannah Divinny & Jemima who has died without children and intestate. That James Divinny is also dead having the following named Children; vz, Nancy who has intermarried with Lewis Walker, Lucinda who has intermarried with David Bain, Samuel, Madison, Clement & Jesse. Your petitioners show unto your worships that, they hold the aforesaid slaves as tenants in common with the Defendants and as such are entitled to a division and to have the separate shares of each assigned to him or her in severalty, but they respectfully represent to your worships that this cannot be done on account of the large number of said Tenants in common. They therefore pray your worships for a decree of this worshipful Court directing said slaves to be sold at such times and place & on such terms as may be deemed by your worships best calculated to promote the interest of all parties concerned and that the Clerk of this Court may be appointed to make said sale and they further pray for all other & further orders & decrees & all other and further relief which the nature of their case may require. They further show that all the Defendants with the exception of Hannah Divinny are non residents and they pray that publication may be made as to them & that copies & Subp'as may issue to the said Hannah, commanding them & every of them to appear at the next term of this Court to be held for said County on the third Monday of November next, then and there to plead answer or demur to this petition and then and there to stand to abide & perform the Judgement Order & decree of this worshipful Court in the premises. And your Petitioners as in duty bound will ever pray etc. Ralph Garrett Att Ordered by the Court that a copy of Petition and Subpa to issue to Hannah Divinny and advertisement to be made for six weeks in the Greensboro Patriot according to Petition. Copy of Petition & Subpa issued, also advertised according to said order. At November Term 1851 a Sepparate answer of Hannah Divinny was returned into our said Court which is in the words and figures following to wit State of North Carolina, Court of Pleas and quarter Guilford County Sessions Novr Term 1851 To the worshipful the Justices of the said Court. The separate answer of Hannah Divinny to the petition of Jesse Divinny & Alfred Hemphill Administrators of Jemima Devinny & others vs. Hannah Divinny & others says that it is true as alleged by the petitioners in their petition, that Samuel Divinny died in our County of Guilford about the Year AD 1834 or AD 1835 leaving a last will & testament executed to pass both real & personal estate which Will was duly proven & recorded at Feby Term 1835 of Guilford County Court (a copy of which marked A is hereto attached and prayed to be taken as a part of this answer) This Defendant entirely denies that the said Samuel Divinny died intestate as to the four Negroes Fanny and her child, Jake, Abram & Hannah but as she is advised & believes three of the said negroes vz Fanny, Abram & Hannah were in the possession of and owned by the said Testator at the time of his death & passed under the following clause of said testators Will, viz first, I will and bequeath unto my beloved wife all my lands, Negroes & all my other personal estate whatsoever to be at her entire disposal during her widowhood except what I otherwise dispose of in this will and if my wife should die my widow without having or making a will to dispose of the estate that may be in her possession then and in that case the estate of what may be to be divided equally among her children namely, Hannah Divinny, Abner Divinny, Pathia Pugh, Jesse Divinny, Frances Brown, Jemima Divinny, Betsey Divinny. But if my said widow now my wife Ann should think proper to give or dispose or distribute any of the said estate either real or personal to any of her own children that she be at liberty to do it." That from the above clause of said Will, the entire estate of the said Samuel Divinny passed to his wife, the said Anne absolutely or at all counts to her for life, with a power to dispose of the same by Will or otherwise. That upon the death of said testator, the said Anne his wife took into her possession the entire estate both real and personal including the negroes above named of the said testator and held them & treated them as her own slaves and exercised control & ownership over them up until her death in the year 1840. that she died in the County of Guilford in the Year 1840 leaving a last Will and Testament duly executed to pass both real and personal estate which was proved & ordered to be recorded at May Term of Guilford County Court 1840 and at which time Robert Julian the executor therein named qualified as such and took upon himself the duty and burthen of administering the same (a copy of which will is hereto attached marked B and prayed to be taken as apart(sic) of this answer). The said will of the said Anne Divinny contains the following clause, to wit, "I give & bequeath to my beloved daughters Hannah & Jemima Devinny the whole of my estate as willed to me by the last Will & Testament of my late husband Samuel Divinny that may not be used in my life time after paying all my just debts and giving to each of my other children one dollar" That the said Robert Julian executor as aforesaid after the the(sic) payment of the debts assented to the legacy contained in the above clause and delivered the three slaves above mentioned to this defendant Hannah & Jemima, her sister and that this defendant and the said Jemima have held said slaves as tenants in common ever since that time adverse to the claim of every person else(?) except the said Jesse Divinny & Alfred Hemphill Admrs of Jemima Divinny dec'd whom she admits is entitled to one half of said slaves as the representatives of her deceased sister. that the said negro Jake is the child of the slave, Fanny above mentioned and hath been born since the death of the said Anne Divinny. This defendant further answering denies that she is the tenant in common in said slaves with the petitioners except as above stated and insists that she is entitled to one half of said slaves, the four to wit, Fanny and her child Jake Abram and Hannah and that the said Jesse Divinny & Alfred Hemphill are entitled to the other half as the representatives of her deceased sister Jemima that an equal division of said slaves can be made without injustice to either party and that there is no necessity for a sale of said slaves that they are family negroes and for that reason this defendant is desirous that they should not be sold but divided by a decree of this Court according to the rights of the parties. This defendant further answering states that she is also entitled to one twelfth of the share of her sister Jemima to said slaves and she is willing for a division of the share of the said Jemima to be made among her brothers and sisters and their representatives according to their Respective rights. And having fully answered the petition she prays to be dismissed this Court, with her reasonable costs. Wiley, McLean & Mendenhall Attys for Deft. Hannah Divinny maketh oath that the several matters of fact set forth in the foregoing petition as of her own knowledge are true and those not of her own knowledge she believes to be true. Sworn to before me his John M. Logan Clk Hannah Devinny mark The following is a copy of the Will of Samuel Divinny as marked A in the answer Whereas I Samuel Divinny of Guilford County & State of North Carolina being at this time of sound mind and memory through the Mercy of God but knowing the uncertainty of life and that death will come & that all must die, with this consideration I leave this instrument of writing as my last Will and Testament revoking all other Wills. First, after hoping my Sour will return to God, I will my body to be buried in a decent & christian like manner, all my funeral charges & other debts to be punctually paid. First, I will and bequeath unto my beloved wife all my lands, Negroes & all my other personal estate, whatsoever to be at her entire disposal during her widowhood except what I otherwise dispose of in this Will and if my wife should die my widow without having or making a will to dispose of the estate that may be in her possession then and in that case the estate of what may be to be divided equally among her children Namely Hannah Divinny, Abner Divenny, Pathia Pugh, Jesse Divinny, Francis Brown, Jemima Devinny, Betsey Divinny. But, if my said widow now my wife Anne should think proper to give or dispose or distribute any of the said estate either real or personal to any of her own children that she be at liberty to do it. I also will & bequeath to my son Thomas Divinny one dollar also I will to my daughter Lydia Hunter one dollar, also I will to Jane Grace one dollar, I also will to the children of Mary Coble one dollar to be equal among them. I will to my daughter Ann Grace one dollar. I also give to my son Samuel Divinny one dollar. Lastly I appoint my beloved wife, Anne Divinny & my sons Abner Divinny & Jesse Divinny to be my whole and sole Executors to this my last will & Testament. In Testimony where of I have hereunto affixed my hand and seal this the 24th day of June in the year of our Lord one thousand eight hundred twenty five. Assigned(?) in presence of his Jonathan Parker (affe) Samuel S Divinny his mark Jacob + Suits mark State of North Carolina Guilford County February Term 1835 The execution of the foregoing last will & Testament of Samuel Divinny decd was duly proven in open Court by the oath of Jonathan Parker Esqr one of the subscribing witnesses thereto who prove that Jacob Suits the other subscribing witness signed the same in his & the Testators presence. Ordered to be Recorded Then came into open Court, Ann Divinny Executrix & Abner Divinny Executor appointed in said Will & qualified as such. Test A. E. Hammer Clk. State of North Carolina Guilford County I John M. Logan Clerk of the Court of pleas and quarter sessions for the County aforesaid do hereby certify that the above is a true and correct copy of the will of Samuel Divinny deceased as file in my office, This the 17th day of November 1851. John M. Logan Clk By B G Graham DC The following is a copy of the will of Ann Divinny as marked B in the answer In the name of God Amen, I Ann Divinny of the County of Guilford and State of North Carolina being in tolerable good health of body & of perfect sound mind & memory thanks be to God, Calling to mind the mortality of my body and knowing that, it is appointed for all people and(?) to die, do make and ordain this my last will & testament that is to say principally & first of all I give and recommend my soul unto the hand of Almighty God that gave it and my body I recommend to the earth to be buried in a decent Christian burial at the discretion of my Executors nothing doubting but, at the General resurrection I shall receive the same again by the mighty power of God and as touching such worldly estate as it hath pleased God to bless me with in this life I give and demise and dispose of the same in the following manner & from, Viz, I give and bequeath to my beloved daughters Hannah & Jemima Divinny the whole of my estate as willed to me by the last Will and Testament of my late husband Samuel Divinny that may not be used in my lifetime after paying all just debts & giving to each of my other children one dollar. I constitute and make and ordain Robert Julian my Executor to this my last Will and Testament and I do hereby disallow, revoke & disannul all and every other Testaments, Wills, Legacies & bequests and Executors by me in any wise before named, willed and bequeathed, ratifying and confirming this and no other to be my last Will and Testament. In witness, whereof I have hereunto set my hand and seal this the 30th day of July in the year of our Lord one thousand eight hundred & thirty five. Signed sealed pronounced & declared by the said Ann Divinny as her last Will & Testament in the presence of us Dobson G. Burrow her Jesse Julian Jurat(?) Ann + Divinny mark State of North Carolina Guilford County May Term AD 1840 The Execution of the foregoing Will was duly proven in open Court, by the oath of Jesse Julian one of the subscribing witnesses thereto. Ordered to be Recorded, Whereupon Robert Julian the executor therein named & appointed came into open Court, and qualified as such. Test John M. Logan Clerk State of North Carolina Guilford County I John M. Logan Clerk of the Court of pleas and quarter sessions for Guilford County do hereby certify that the above is a true and correct copy of the Will of Anne Divinny filed in my office. This 17th day of Nov. 1851. John M. Logan Clk By B. G. Graham DC This case was continued until Feby Term 1853 when & where the case was brought before the Court, to Wit Peter Adams, Frederick Frentress, Arch'd Wilson, Jed H. Lindsay & John M. Morehead Esqrs who composed said Court, and after the argument of Counsel on both sides, the Court Ordered that the petition be dismissed at the Petitioners cost. Judgment of the Court accordingly. From which Judgment the petitioners prayed & obtained an appeal to the next Superior Court of law for Guilford County to be held in the town of Greensboro on the fourth Monday after the fourth Monday in March next and entered into bond according to law in the sum of one thousand dollars. With Emsley Arnefield & Joab Hiatt securities thereto. State of North Carolina Guilford County I John M. Logan Clerk of the Court of pleas and quarter sessions for the County of Guilford do hereby certify that the foregoing is a true transcript of the Record made and had in our said County Wherein Jesse Divinny & others were Plaintiffs & Hannah Divinny & others were Defendants. In Testimony whereof I have hereunto set my hand and affixed the seal of our said Court. At Office this 23rd day of March AD 1853. John M. Logan CCC Bill of Costs Clerk $ 7.10 McLean & Wiley 4.00 Swain & Sherwood 5.00 W. A. Winborn ?? .60 $16.70 John M. Logan c.c.c. NORTH CAROLINA STATE ARCHIVES GUILFORD COUNTY ESTATE RECORDS BOX 046.508.62 FILES OF SAMUEL DEVINNEY & JEMIMA DEVINNEY