Ballard v. Ballard in Chancery, Isle of Wight County, Virginia (1798).

Below is the transcription of selected records from a Chancery file among the records of Isle of Wight County and made available by the Chancery Records Project at the Library of Virginia.

Ballard v. Ballard, a suit brought by Robert, Elisha, Augustus and Ellen Ballard by John Eley, their next friend, against Joseph Ballard, represented by Mills Eley, his guardian, appointed by the Court.

The last will and testament of Elisha L. Ballard appears to have not survived, though it is referenced below and names his children, and his intentions summarized in the complaint — that is, a life estate in all the real and personal property conveyed to Sally unless she married, in which case she would receive only a life estate in her third of the estate, then on her death the real property divided among all of male heirs, and all of the personal property divided among all of the children (male and female).  We have seen notes online ascribing many more children to him than are named here; those efforts are clearly in error.  The will of his wife Sally Ballard is indexed in the Isle of Wight records; we have not yet seen it.

It appears the lawsuit was filed in the November Session, 1798 and continued into August 1800, when this decree was entered. Sally Ballard’s will was entered into probate 4 December 1798, so she likely died around October 1798.  The plaintiffs were the infant children of Elisha and Sally; the defendant for purposes of the complaint was their elder brother, who was represented by his guardian, Mills Eley.  Under common law, a person under the age of 21 was legally an infant, which means all of these children were born between 1777 and 1796.

It seems peculiar that the “infants” would bring suit against their eldest brother, but it was likely a legal expediency to claim their share of the estate and enable the eldest, Joseph, to obtain title to his property and get on with his life.

To the Justices of Isle of Wight County sitting in Chancery respectfully complaining show unto your worships your Orators and Oratrix Robert, Elisha, Augustus and Ellen Ballard by John Eley, their next friend.

That Elisha L. Ballard of the county aforesaid departed this world after having duly made and executed his last will and testament in writing dated the twenty-fifth day of January in the year of Christ one thousand seven hundred and ninety-six and recorded in the District Court holden in the town of Suffolk.

That he left Sally Ballard his widow and Robert, Elisha, Augustus and Ellen Ballard with a certain Joseph Ballard his children.

That in his lifetime and at the time of his decease he was legally seized and possessed of a considerable estate both real and personal.

That by his will aforesaid, he gave the use of his estate to Sally Ballard his wife so long as she lived single, and then bequeathed to her the loan only of one third in case of her marrying.  He afterwards devised to his said wife the whole of his land should be equally divided among his sons which should be now living, and finally willed that all his personal property should be equally divided among his children generally.

That Sally Ballard the widow of the testator remained single and unmarried until her death, which lately took place [note: her will was probated 4 December 1798, Isle of Wight Co. Va. Will Book Vol. 11, 1798-1804 (Reel 27), pp. 141-42; Inventory & Appraisal, p. 259], and that she enjoyed the total emoluments of her said husband’s estate during her short life agreeable to the tenor and meaning of his will.

And your orators further state that they and Joseph Ballard are the only persons entitled to the aforesaid estate, and that a distribution of the same among them cannot be legally and effectively accomplished without the interference of this court, according to the intention of the said Elisha L. Ballard dec’d on account of the infancy of the children.

In further consideration whereof, and for as much as your complainants are without remedy at law, they solicit the interposition of your worships.

To the end therefore they pray, that the said Joseph Ballard may be made defendant to this bill, and that he make true and proper answer to all and singular the allegations herein contained, and that as fully as if the same were here again represented and more especially that he discover whether Sally Ballard the widow of Elisha Ballard is not dead, and whether the complainants are not infants, and they lastly pray that your worships will decide that a distribution of the estate of the said testator be made among them and the aforesaid Joseph Ballard according to his will, and that a fit and qualified person may be appointed to fulfill the same, or make such other or further decree in the circumstances as shall be consistent with justice and equity.

May it please, etc.  Richard W. Byrd.

***

The Answer of Joseph Ballard by Mills Eley, his guardian appointed by the court.  To the bill of complaint exhibited against him in the Court of Isle of Wight County by Robert, Elisha, Augustus and Ellen Ballard through James Wills their next friend.

The respondent being convinced of the truth of all the allegations contained in the bill of the complainants, and being advised that a legal distribution cannot be effected on account of the infancy of the children, without an order of this court is perfectly willing to submit to the same.  And he hopes that your worships will not only decree such a division as is asked for in their bill, but also nominate a guardian so appointed to the same on behalf of the infant complainants.  And he finally prays the case dismissed with his costs in his behalf necessarily suspended. [January 1800].

***

In pursuant to the above decree hereunto annexed we the commissioners named in said decree have made a division of the lands and tenements of Elisha L. Ballard, dec’d, between his four sons, to wit, Joseph W. Ballard, Elisha L. Ballard, Robert M. Ballard & Henry Augustus Ballard & also made partition of the slaves of said dec’d between the said four sons and a daughter by the name of Ellen Ballard agreeable to the bill and last will & testament of said dec’d as will appear hereafter stated, viz:

The manor plantation on Blackwater valued at £351.15

The land in Currywaugh £453.0.0

The land in [a long “S”, perhaps indicating ditto] £236.10.5

This is followed by a list of the names of slaves and their division among the children along with the land.  Written on the rear of the page: August 1799.

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