LAWSUIT – JOHN J. MCCOY ET AL (PLAINTIFF) VS W.J. COLLINSWORTH (DEFT)

Filed Jan. 21, 1889

John J. McCoy, Margaret Fraley, and W.H. Fraley, her husband; Elizabeth McCoy, Pleasant P. McCoy, Andrew W. McCoy, John Fraley, husband of Martha Fraley, late Martha McCoy; who sews by her next friend and brother, Andrew W. McCoy, Sarah Blackburn, and John Blackburn her husband, Miranda McCoy and John B. McCoy, her husband, and David McCoy – Pffs.

Against Petition – Equity

William Collinsworth, Samuel Indicutt, Abner Indicutt, Gabriel Indicutt, Elizabeth Adkins, late Indicut, and Harmon Adkins, her husband, Emily J. Weddington and Robert H. Weddington, her husband, John G. Johns, Emily Archer, and George P. Archer, her husband, John H. Johns, Elizabeth Johns, Thomas Johns, and Walter S. Harkins, Julia Fox, and __________ her husband, Emma Crank, Susan A. Darnell, and W. W. (sic) Darnal, her husband, Samuel (sic) Ratliffe, David Ratliffe, Malinda Roop, and John Roop her husband, Mahala Priest, Anna Smith, Samuel James; and Tamsey Russell and Ira Russel, her husband – Defendants.

The Plaintiffs state that their grandfather Samuel James, departed this life the ____ day of ___ 18__, domiciled in Floyd County Kentucky and intestate. That he left surviving him Pernina James, his widow, and Miranda Harkins, wife of Hugh Harkins,(sic) Ratchel Ratliffe, wife of ____ Ratliffe, Malinda Roop, wife of John Roop, Mahala Priest, wife of John Priest, Anna Smith, wife of ____Smith, Tamsey Russell, wife of Ira Russell; and Samuel James his only children and heirs at law to (sic) whome his estate descended.

That afterwards proceedings were had in the Floyd County Court to partition and divide amongst his children and heirs at law, a large and valuable real estate, situated in Floyd County of which their said ancestor had died the owner and in the possession of. That afterwards to wit at the July Term 18?5 of the Floyd County Court, Commissioners were appointed to lay off and allot to each of said children in severalty, their position of said landed estate and to allot to the widow her dower, in the lands of her said husband.

That in addition to the persons named, hereinbefore, the said Samuel James left surviving him Sarah McCoy, wife of William McCoy; and mother of these Plaintiffs, who also inherited from her said fathers estate, and David James, who also each inherited, from said estate, and Hannah Indicut, wife of _____Indicut, who also inherited from said estate, each of whom were children and heirs at law of said Decedents estate; but by oversight of the draughtsman of this petition their names were omitted on the first page of this petition and should have been inserted on said page and immediately preceding the words thereon “his only children and heirs at law to whom his estate des?ded”.

They state that in (sic) personuance to said appointment they proceeded to, and did lay off to each of said children their portion of said estate, and they each took possession of their portion in severalty but that no deeds to, said land was ever made to said heirs to the lands so allotted to them; by the other children of said Samuel James, and that the legal title to said land is in the descendants of said Samuel James, the Defendants, herein, and Plaintiffs.

They state that there was allotted to their mother Sarah McCoy, wife of William McCoy, a certain tract or parcel of land situated in Floyd County Ky, on the south side of Johns Creek, a more particular description of said land cannot now be give; but will be set up hereafter by an Amended Petition.

They state that Hannah Indicut is now dead, but that she left surviving her Samuel Indicutt, Abner Indicutt, Gabriel Indicutt, Elizabeth Adkins, late Elizabeth Indicutt, and Harmon Adkins, her husband to whom her estate descended.

Miranda Harkins is now dead and left surviving her; her husband Hugh Harkins, John Harkins, Elizabeth, wife of John G. Johns, and Emily wife of Robert H. Weddington, her children to whom her estate descended. Hugh Harkins is now dead, as is also John Harkins, who died with out issue, his estate descended to his sisters who were his only heirs at law, viz: Elizabeth Johns and Emily J. Weddington.

Elizabeth Johns is now dead, she left surviving her John G. Johns, her husband, and Walter S. Harkins, Emily Archer, wife of George P Archer, John H. Johns, Elizabeth Johns, and Thomas Johns, her only children and heirs at law to whom her estate descended.

(sic) Ratchel Ratliffe is now dead, but left surviving her Julia A. Fox, wife of _____ Fox, Emma Crank, a widow, Susan A. Darnall, wife of W.W. Darnall, Samuel Ratliffe, and David Ratliffe, her only children to whom her estate descended.

Plaintiffs state that their mother Sarah McCoy departed this life the ___ day of ____ 188__, and left surviving her her husband, and John J. McCoy, Margarett Fraley, wife of W.H. Fraley, Elizabeth McCoy, Pleasant P. McCoy, Andrew W. McCoy, Martha Fraley, wife of John W. Fraley, Sarah Blackburn, wife of John Blackburn, Miranda McCoy, wife of John B. McCoy, and David McCoy, her only children and heirs at law to whom her estate descended. Their father is now dead having departed this life the 29th day of January 1888.

They state that Martha M. Fraley, the plaintiff herein is a person of unsound mind, and has no guardian, curator, nor committee, residing in this state known to affiants & Plaintiffs.

They state that Andrew W. McCoy, who sews as her next friend is her brother, is a citizen of the Commonwealth of Kentucky, over the age of 21 years, and free from any and all disability.

They now state that they are the owners by inheritance from their said mother, of the tract of land inherited by her from her fathers estate, and being the same land hereinbefore described; and are entitled to have legal title to the same conveyed to them from the heirs at law, and descendants of Samuel James, many of whom are infants unable to convey.

They state further that they are also entitled to the possession of said land, and that the defendant William Collinsworth is in the unlawful possession of the same; and forcibly, and without right, and against the consent of these Plaintiffs, forcibly and without right detains the possession of the same from them; and has so detained the possession of the same, for a period of 19 months, to their great damage in the sum of One-Hundred Dollars.

Wherefore Plaintiffs pray, that the Court by its Commissioner convey to them the legal title to said land.

That they recover the possession of the same from the Defendant William Collinsworth; and the sum of One hundred Dollars, in damages against him for the unlawful detention of the same. Finally they pray a Judgment for cost against him, and all general and special relief.

Weddington & Harkins,

Counsel for the Plaintiffs

Note: The Harkins is Walter S. Harkins, illegitimate son of Elizabeth Harkins and cousin to the Plaintiffs.

Deposition of Thomas James.

I am 89 years of age. I was acquainted with William McCoy and his wife before their death nearly all of my life. I know Lida Dawson. I know the farm she lived on on Johns Creek which is now in possession of William J. Collinsworth. I hear Mrs. McCoy once talking about once ? a part of that land. This conversation may best recallable this was at my mothers or the adjoining farm to this and insight of this land. I think Mother was and the balance of the family was present. I repeat it was twenty odd years ago. Dan Dawson and his mother was in possession of the land at this time. We was speaking of the land and she said the land where Mrs. Dawson lived once belonged to her. Don’t recollect any thing else she said about the Dawson land. I at another had a conversation with William McCoy about it. We were going along the road opposed the land there was no other persons present as I now remember. I think it has been twenty years ago. He said the deed of that land still laid in him and spoke of people being careless about making deeds. I do not remember about him saying anything about his ? guess about making a deed. This is all I remember about it. The last several years of their life they lived within three miles a part of the time and about ? & one half mile from it. She often passed by this land and I am satisfied she knew Mrs. Dawson and Mr. Collinsworth lived on this land. I saw her pass once.

/s/ Thomas James

Floyd Circuit Court Amended Petition

The Plff for the purpose of bringing all the necessary parties before the Curt amends his petition herein & for amendments states that the name of one of Rachel Ratliff’s children is incorrectly stated. That said Ratliff in the petition should be & the correct name is William Ratliff. That said David James was dead before this suit was brought and he left several children who are his heirs at law, but at present their names and place of residence is unknown, but as soon as they can be procured will be given in an amended petition.

That Hannah Indicutt married a second time, her last husband’s name was James Copley – by whom she had 4 children named James, Scott, Nancy and Mahala Copley – all of whom are of age. That he amends his original petition. Wherein it is stated that in 1885 a division of the lands of Samuel James was made & c. That date should be July 1845. The ? the ?, and by stating that the Husband of Rachel Ratliff was named William