As a follow-up to this new first draft transcription and source images, I have located
this suit in Virginia Reports, Jefferson--33 Grattan: 1730-1880. Annotated Under the
Supervision of Thomas Johnson Michie, Volume 2. Thomas Johnson Michie, January 1, 1902.
It is titled: *Poythress et als. v. Harrison. January Term. 1855, Richmond.
I have extracted the suit below. It provides interesting details about the Will but makes
no mention of it being originally filed in Butler County, Kentucky. I plan to soon follow
with Rev. War Pension Claim that likely relates to this Thomas E. Poythress and his
197 *Poythress et als. v. Harrison. January Term. 1855, Richmond. Absent. CLOPTON. J.
(He sat in the court below.) W|lls—Legacies—Contlngency*—Case at Bar.——A testator devises
his whole estate to his wife for life, remainder to three nephews. with a "condition
annexed" to the estates of the remaindermen "that they are to contribute equally
to raise the sum of $1000 for Thomas P. Harrison. to be paid him at the death" of the
widow. He also gives him a horse. bridle and saddle. to be received as soon as he
completes his education: and a watch to be received at the death of the testator. The will
then proceeds. “but should he die before he receives any or all of the legacies herein
given him. then such as he may not have received." are to go to his sister.
Same—Same—Same.—Held: The legacy of $1000 is contingent upon Harrison's surviving the
widow. on failure of which it belongs to his sister. It is not. therefore. payable. nor
any part of it. until the widow's death though she renounces the will. and the
remaindermen receive a. portion of their shares of the estate.
In 1847, Thomas E. Poythress died, leaving a will, by which he devised to his wife,
Beersheba, all his property for life. The will then proceeded as follows:
“Second. At the death of my wife, I give, and bequeath, and devise all my estate, real,
personal and mixed, to my brother Joshua Poythress, my nephew William P. Poythress, and my
niece Nancy G. D. Harrison, to be equally divided among them, share and share alike, to
them and their heirs forever, with this condition annexed —they are to contribute equally
to raise the sum of one thousand dollars for Thos. P. Harrison, son of Braxton Harrison,
deceased, to be paid him at the death of my wife, which I give to him and his heirs
forever. I also give the said Thos. P. Harrison a horse of the value of sixty dollars, and
my saddle and bridle, to him and his heirs forever. This last bequest of a horse, saddle
and bridle, I wish him to *have as soon as he completes his education. I also give him my
silver watch at my death; but should he die be fore he receives any or all of the legacies
herein given to him, then, and in that event, I give such as he may not have received to
his sister Oceana Harrison, except the watch, which I give to my friend and neighbor,
Thos. H. Wilcox.”
The will was duly recorded in Charles City county, (of which the testator was a resident.)
and shortly thereafter the said Beersheba appeared in court and renounced the provision
made for her in the will. In consequence of this, one-third of the negroes and land of the
testator were assigned to her, and the remaining two-thirds to the legatees in remainder
above named. The rest of the personal estate remained in the hands of the executor,
(George Walker.) to be thereafter distributed by him, (after paying the debts of the
estate.) one-half to the widow, and the other half to the legatees.
In May, 1848, after these proceedings had been had, Thomas P. Harrison, above named, who
was an infant, ﬁled a bill by his next friend, setting forth the matters above stated, and
insisting, that it was evident the testator intended he should receive his legacy at the
same time that the legatees in remainder received theirs; that according to the will, they
would not have received their interests until the death of the widow, but that inasmuch as
they, by the renunciation of the widow, had become entitled to receive, and had actually
received, the greater portion of their legacies, though the widow was yet alive, he also
was entitled to receive a like proportion of his. The bill, therefore, prayed that such
proportion might be decreed to him. and that provision should be made for the payment of
the residue upon the death of the widow. The executor and the devisees in remainder were
made parties to the bill, and the former was required to say in his answer whether he had
suficient funds in his hands to pay the legacy of $1,000 to the plaintiff.
*The defendants answered—the executor stating that he had, as he believed, enough money in
his hands to pay the legacy, but that he was unwilling to bind himself by an admission of
assets, in the then state of his transactions as executor; and the other defendants,
stating that they were willing to secure the payment of the legacy at the death of the
widow, if Harrison were then living, denied his right to receive anything until that time,
ﬁrst, because the will directed it to be then paid, and secondly, because the devise to
him was one contingent upon his surviving the widow, in failure of which the property was
to go to his sister Oceana.
On the hearing of the case, the court decreed that the legatees in remainder should pay to
Camilla A. M. Harrison, the legally qualiﬁed guardian of the infant plaintiff. the sum of
$666 66 2/3%, that being two-thirds of his legacy, and should secure the payment of the
remaining one-third at the death of the widow.
From this decree the legatees appealed to this court.
Gholson & Jones, for the appellants, submitted the case on the petition of appeal.
Nance, for appellee.
FIELD, P., delivered the opinion of the court, in which all the judges concurred.
The court is of opinion that the appellee, at the time of instituting his suit in the
Circuit Court, was not entitled to recover the legacy of $1,000 bequeathed to him by
Thomas E. Poythress, for two reasons: ﬁrst, because the said legacy was not payable to him
until after the death of Mrs. Beersheba Poythress, the testator's widow, although she
had renounced the provision made for her in her husband’s will; and secondly, because the
said legacy, until after the death of Mrs. Poythress, was contingent, and if the appellee
had died in her life-time it would have been payable to his sister, Oceana Harrison, as
directed by the will. See Swope v. Tharnbers, 2 Grat. 319. Therefore, it is decreed and
ordered, that *the decree of the court below be reversed with costs. And the court here,
proceeding to enter such decree as the court below should have entered, doth order the
said bill to be dismissed with costs. But this decree is to be without prejudice to the
right of the appellee, in the event of his surviving Mrs. Beersheba Poythress, to
institute a new suit for the recovery of the same legacy, &c.
On Apr 8, 2019, at 7:58 PM, Albert Tims via POYTHRESS
I ran across this Will for Thomas E. (Eppes) Poythress in a Kentucky digital archives
I have included the image files from the Butler County, Kentucky records — complete with
what appear to be affirmations of authenticity from Charles City County in Virginia. At
the bottom I have added a first draft transcription — with multiple question marks on
words still uncertain. I’ll update — perhaps with help from some of you.
Why Thomas E. Poythress was living in Butler County KY is something I have yet to
research. Butler is in the southwestern part of the state — probably strip mining coal
county these days. I don’t believe we’ve seen this Will before now.
for Poythress Surname research resources and studies.
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