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BALLENTINE et al}
vs } In Error
POYNER et ux }
At the aforesaid term of the aforesaid Court
before the Honorable John WILLIAMS & John HAYWOOD Esquires
Judges thereof came Joseph BALLENTINE, Davy BALLENTINE, and
Henry BALLENTINE by their attorney & say that
in the record and process and also in the order or decree on the petition
aforesaid made by the Justices of the Court of Pleas and Quarter Sessions
held for the County of Currituck at the May term thereof in the year of our
Lord 1793 it is manifestly erred in this that whereas by an act of Assembly
passed at Hillsboro & in the year of our Lord 1784 it is enacted that if any
person die Intestate or shall make his Last Will & Testament and not there
in make any express provision for his wife by giving and devising to
her such part or parcell of his real or personal Estate as shall be fully
satisfactory to her, such widow may signify her dissent thereto before
the Judges of the Superior Court or in the County Court of the County wherein she
resides, in open Court, within six months after the probate of the sd Will,
and then in that case, she shall be entitled to dower: Nevertheless the
Justices of the sd Court did at the aforesaid term thereof
order a Jury to lay off the dower of the Widow of the aforesaid Henry BALLENTINE deceased
although she not only did not dissent from the Will of her said deceased Husband
within 6 months after the probate of the
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Same, but did on the
contrary declare that she was fully satisfied therewith, and intended to
stand to and abide by the same and hath accordingly continued in the full &
quiet possession of all and singular the property thereby bequeathed and
devised.
There is also manifest error in this that whereas by
an act of the General Assembly of this State passed at Newbern in the year
of our Lord 1791 it is enacted that when a "widow has by virtue of the power
to her given by the before recited act, signified her dissent from her Husband’s Will, and the Sheriff in consequence thereof & by order of the
Court for that purpose made shall allot and set off to each Widow her dower
of her said Husband’s lands, it is hereby declared to be the duty of the
Jury so summoned, in the first place to enquire whether by the will the
widow is at conveniently and comfortably provided for, as if her dower was
to be allotted to her, according to the sd Act & they shall be of opinion
that she is so provided for, they shall make return of the same, by which
return the Widow shall be precluded from any further claim upon her
Husband’s lands, except such only as are devised to her by the Will"
nevertheless the Jury so as aforesaid summoned, not regarding the sd Act
have not inquired whether the Widow was so as aforesaid provided for, nor
have they as at all taken the aforesaid Will of the deceased Husband into their
consideration.
/s/ Jno. BROWN Att. For the Pltf in error
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BALLENTINE et al}
vs }
Assignment of Errors
POYNER et ux }
State of North Carolina
Know all men by these Presents that we Joseph VALENTINE [sic] Thomas MERCHANT &
Jesse PERRY all of the County of Currituck and State aforesaid are
held & firmly Bound unto Robert POYNER & Mary his Wife in
the just & full sum of Fifty Pounds to be paid to the said Robert POYNER
& Mary his Wife, their Heirs Executors or Administrators or the Heirs,
Executors or Administrators of the Survivor of them, to the which payment
well and truly to be made and done We Bind Ourselves, Our Heirs, Executors &
Administrators jointly & severally firmly by these presents Sealed with our
Seals and date the thirteenth Day of October in the year 1795.
The Condition of this
Obligation is such that whereas
the above Bounden Joseph VALENTINE hath the day of the date of these
presents obtained from the Superior Court of Law for the District of Edenton
a Writ of Error to remove the proceedings lately had before the Justices of
the County Court of Pleas & Quarter Sessions for the County of Currituck in
a certain suit by Petition wherein the said Joseph VALENTINE & Davis
VALENTINE were Petitioners and Mary VALENTINE, now Mary
the wife of the said Robert POYNER, was Defendant Now if the said Joseph VALENTINE his Heirs
Executors of Administrators shall prosecute his said Writ of Error with
Effect or in Case he shall fail therin shall & do well & truly pay or Cause
to be paid unto the said Robert Poyner & Mary his Wife all such Costs &
charges as shall be Awarded against him by the Judgm. Of the said Superior
Court of Law then this Obligation to be Void else to remain in full force &
effect.
/s/ Jos. BALLENTINE seal
Thos. MARCHANT seal
Jesse
PERRY seal
Signed Sealed & Delivered In Presence of
/s/ Will BLAIR
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Currituck 3d September 1795
Mr. Robert POYNER
Sir
In the notice that I shall move their Honors the
Judges of the Superior Court of Law for the District of Edenton, at the next
Term of the said Court (to wit at October Term) for a writ of error to revese
an order of the Justices of the County Court of Currituck County directing a
Jury to lay off the dower of Mary BALLENTINE in the Land of Henry BALLENTINE her deceased Husband which order was made at the August
term of the said Court which happened in the year 1794.
/s/ Jno
BROWN atty for the
heirs of Henry BALLENTINE deceased
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Superior Court of Law}
October Term 1795
Edenton District
}
Joseph BALLENTINE maketh
oath that some time in the month of March in the year of our Lord 1793 his
Father Henry BALLENTINE departed this Life, after having made his
last Will & Testament whereby he hath made a very handsome provision for his
Widow & relict Mary BALLENTINE who hath since intermarried with a
certain Robert PINER [sic] the said Henry
having by his said will bequeathed to the said Mary a very
considerable portion of his personal Estate consisting of a great variety of
household & Kitchen furniture & stock together with sundry negroes as will appear
from an attested copy of the said will which this deponent is ready to
produce to this Honorable Court. This deponent further deposeth that the
said Mary hath always been & now is in possession of the property so
as aforesaid bequeathed deposeth that the said Henry did in & by his
said will, among other things, give & bequeath unto this deponent & his
Brother Davis BALLENTINE the
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Tract of
land whereon the said Henry BALLENTINE the Father of this deponent
formerly lived & usually resided to be equally divided between them as also
one other tract of Land to Henry BALLENTINE the youngest Brother of
this deponent, deposeth that at the County Court of
Currituck County in the District aforesaid which just happened after the
death of the said Henry viz. at the May Term thereof the will of the
said Henry BALLENTINE was proved in due form of Law by this deponent
who is thereto appointed an Executor and that although the aforesaid Mary BALLENTINE ( alias
PINER) widow & relict as aforesaid hath never in any wise
signified her dissent from the aforesaid will of her Husband agreeable to
the act of Assembly in such cases made & proved, but on the contrary hath
declared in full approbation of assent to the same & hath in fact ever
since the decease of her said Husband continued in possession of all &
singular the legacies bequeathed to her by the aforesaid will of her said
Husband
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(As this deponent hath above stated) nevertheless the
County Court of Currituck did at the aforesaid Term thereof to wit at May
term in the year 1793 order a Jury to go on the aforesaid Tract of land so as
aforesaid ___ied to this deponent & his said Brother Davis BALLENTINE in
consequence whereof the Sheriff of the said County did summon a Jury who
laid off & allotted to the said Mary her dower out of the said tract and a
return of the proceedings of the said Jury was accordingly made to the
following term of the said county Court of Currituck as may move fully appear
from the records thereof. Further then sayeth not.
/s/ Jno BALLENTINE
Sworn to in Open Court Oct. 14th 1795
Test.
Will BLAIR Clk
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Superior Court of Law}
SS
Edenton District }
October Term 1795
Henry BALLENTINE's Heirs } Petr
for Davis & Order of the County Court thereon
vs
} Errors Assigned
Henry BALLENTINE's Widow}
At the aforesaid Term of the aforesaid Court before the
Honorable John WILLIAMS & John HAYWOOD Esquires Judges
thereof came Joseph BALLENTINE, Davis BALLENTINE and Henry BALLENTINE, by their attorney and say
that in the record and process and also in the order _____ decree on the
petition aforesaid made by the Justices of the Court of Pleas and Quarter
Sessions held for the County of Currituck at the May Term thereof in the year
of our Lord 1793 it is manifestly erred in this that whereas by an act of assembly passed at
Hillsboro in the year of our Lord 1784 it is thereby enacted that if any
person die intestate or shall make his last will & Testament & not therein
make any express provision for his Wife by giving
and devising to her such part or parcell of his real or personal estate as
shall be fully satisfactory to her, such widow may signify her dissent
thereto before the Judges of the Superior Court or in the County Court of
the County wherein she resides, in open court, within 6 months after the
probate of the said will, & then & in that case, she shall be
entitled to
dower nevertheless the Justices of the said Court did at the aforesaid term
thereof order a Jury to lay off the dower of the Widow of the aforesaid
Henry BALLENTINE deceased although she not only did not dissent from the
will of the said deceased Husband within 6 months after the probate of the
same, but sis on the contrary declare that she was fully satisfied there
with & intended to stand to & abide by the same, & hath accordingly
continued in the full & quiet possession of all & singular the property
thereby bequeathed and devised.
There is also manifest error in this that whereas by
an act of the General Assembly of this State passed at Newbern in the year
of our Lord 1791 it is enacted that when a
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Widow has
by virtue of the power to her given by the
before recited act, signified her dissent from her Husband’s will & the Sheriff
in consequence thereof & by order of the Court for that purpose made shall
allot & set off to such Widow her dower of her said Husbands lands, it is
hereby declared to be the duty of Jury so summoned in the first place to
enquire whether by the will the Widow is as conviently & comfortably
provided for, as if her dower was to be allotted to her according to the
said act & they shall be opinion that she is so provided for, they shall
make return of the same, by which return the Widow shall be precluded from
any of further claim upon her Husband’s lands, except such only as are
devised to her by the will; nevertheless the Jury so as aforesaid summoned,
not regarding the said act, have not inquired whether the Widow was so
as aforesaid provided for, nor have they at all taken the aforesaid will of her
deceased Husband into their consideration.
/s/
Jno BROWN atty for the Pltf In
Error
[SOURCE: Manuscript and Archives
Reference System (MARS);
Edenton District Superior
Court Estates Records 1756-1806; MARS ID: 398.6.30 (Box)]
Transcribed by
Judy Brickhouse | 