1851: Behethilon Cummins v Nimrod Combs
Index Id: 1852-013; Original Case Id: None
County: Fauquier
Scanned Images: Yes (62 pages)
Case Filed: 1833; Appears to be settled by 1835 but John C Cummins Commissioner filed his final report in 1850 and the Chancer Index # indicates 1852

(Source: Behethilon Cummins v Nimrod Combs, Id # 1852-013, Library of Virginia Archives, Chancery Court Index: Fauquier County, original images from case file, abstracted, transcribed, and submitted by Sue Elfving for Combs &c)

List of Defendants: Bethethilon CUMMINS vs Nimrod Combs, Elizabeth HOPPER, John COOPER and wife Sally, Sampson BARBEE and wife Lucy, Sanford PAYNE, James Combs & wife Elizabeth, Elijah THORNBERRY and wife Hetty, Thos STEWART and wife Jane, Benjamin Payne Sr., Benjamin PAYNE Jr., William PAYNE, Artimisia Combs (widow of John), Thompson, Sarah, Wm, Amey, and Jane Combs, infants of John decd by their guardian F Phillips, John C CUMMINS, Charles HUNTON, Henry A BARRON

Case Summary:

Following the death of her mother, Behethilon CUMMINS of Fauquier County, d/o of John Combs and Sarah [LUTTRELL], brings suit in chancery against the other children and heirs of her father to obtain an equitable division of the proceeds from the sale of land and slaves. In 1823, some 43 years after the death of their father, the children agreed between themselves to divide the estate equally instead of the division set forth in their father’s nuncupative will (1780). Perhaps the death of their grandmother Seth Combs (c1819/20) encouraged the children to make this agreement. The court appointed a special commissioner and ordered the slaves and land to be sold and the proceeds divided into six shares. The report showed a 1/6 share was $439.07. Exhibits include the 1780 will of their father and the 1823 legatees’ bond per their agreement to an equitable division. Also included in the papers is a conveyance by Benjamin Payne Sr. wherein he places in trust (for the benefit of his wife and her children) the inheritance of his wife Helen by her right of inheritance from her father John Combs and his father John Combs, from Seth Combs [her grandmother] and from Mrs. Calmese [Elizabeth Calmes her aunt] the d/o of John and Seth Combs who left no issue. This 26 April 1820 conveyance [transcribed below] shows that Seth Combs had died shortly before. Considering the struggles that occurred later between the heirs over the will of Sally Combs (wife of John Combs Jr), this agreement in principal and the bond [transcribed below] show the children tried to be fair with each other. Even when Behethilon petitioned for an expeditious settlement per the agreement, there seems to have been little argument amongst the defendants as to how to divide their mother or grandmother’s life estate. It is not clear why the chancery index id indicates the case was not settled until 1852 when the land and slaves were sold by 1835; however, the final accounting report by Commissioner John C Cummins shows it was filed in 1850. No papers in the file explain what happened.

SE Note: Cummins researcher Ann Cummins states that the papers of John C Cummins, executor of Sarah Combs’ will and the son of Behethilon Cummins, are housed at the Alderman Library, University of Virginia at Charlottesville. These papers contain more information about the settlement of Sarah’s estate and her family.

Genealogical Information Gleaned:

Children of John Combs and his wife Sarah:

  1. Nimrod Combs
  2. John Combs decd whose 5 infant children were: Thompson, Sarah, William, Amey, and Jane Combs and whose widow was Artimisia
  3. Behethilon Combs who married Willis Cummins
  4. Elizabeth aka Betty Combs who married John Hopper
  5. Helen Combs decd who married Benjamin Payne and whose 7 children were: Lucy who married Sampson Barbee, Sanford Payne (wife named Fanny), Jane who married Thomas Stewart, Elizabeth who married James Combs, Hetty who married Elijah Thornnberry, Benjamin Payne Jr., and William Payne
  6. Sarah Combs who married John Cooper

Seth Combs died shortly prior to 25 March 1820 and her daughter Mrs. Calmese died without issue per Benjamin Payne Sr. conveyance.

Note: Seth’s husband John’s 1785 Stafford County will left this legacy to his daughter: “To my daughter Betty CALLMERS, Negro Tim, in the possession of her husband, which I formerly gave her, and 1/3 part of the slaves devised her mother, after the decease of her Mother”.

By 1834 Elizabeth Hopper, the Barbees, Sanford, Ben Jr, Ben Sr, and Wm Payne, and James & Elizabeth Combs were noted by John C Cummins as not being residents of Virginia.

SE Note: Sampson and Lucy Barbee and William Payne removed to Marion Co., IN by 1840. Elizbabeth Hopper removed to Pulaski and then Grant Co., Ky. She gave her son Lawson Hopper a Power of Attorney in 1836 to act as her agent in Virginia. On 9 Aug. 1827 James Combs of Fauquier granted to John C Cummins for love and affection and $1 one Negro boy named Thornton, 2 beds & furniture, 2 horses, 2 cows, 1 walnut leaf table, and all my interest in my father-in-law’s estate. Signed by James Combs and witnessed by Sanford Payne and Benjamin Payne (Fauquier County Deed Book 29:465 per researcher Ann Cummins.

Case File Inventory:

p. 3 Answers of Thompson, Sarah, William, Amey, and Jane Combs, infants of John Combs decd by William F Phillips their guardian. The defendants state they, by reason of their age, “have no knowledge of the facts…”
p. 5-6 Answer (dated 24 March 1835) of Henry A BARRON who states he purchased the interest of Sanford PAYNE and wife in the property mentioned in the bill by deed dated 17 Nov. 1828.
p. 7 Answer of Elijah THORNBERRY and wife Hetty. They state they believe the allegations in the Bill are true…”these respondents represent our 1/7 part the share to which Benjamin and Helen PAYNE were formerly entitled to in the property mentioned in the Bill.
p. 9 Answer (dated 26 March 1835) of Thomas STEWART and wife Jane…respondents represent 1/7th part of the share of Benjamin and Helen PAYNE.
p. 11 Answer (dated 24 March 1835) of Charles HUNTON Trustee of William E Alexander who purchased the interest of Sampson BARBEE and wife in deed dated 28 April 1828 and also the interest of James Combs in the same by deed dated 10 April 1828.

p. 13-18 Plaintiff Behethilon CUMMINS’ Bill…states her father John Combs died in 1786 and made a nuncupative will. The will of John Combs is Exhibit A. “In the year 1823 the children of the said John Combs decd who were six in number (to wit: Nimrod Combs John Combs your orator who had intermarried with Willis CUMMINS Betty or Elizabeth who had intermarried with one HOPPER Helen Combs who had intermarried with Benjamin PAYNE and Sarah who had intermarried with John COOPER agreed amongst themselves and with the said widow Sarah Combs that a h___ division of the estate should be made upon principles of equality without regard to the said will and that what was still held by the said Sarah should after her death be equally divided and on pursuance of the agreement the said children of John Combs with the assent of the said widow proceeded to divide all of his estate except the land which consisted of about 300 acres and the following slaves to wit: Peter, Charles, and Coney which were to be retained by the said Sarah Combs until her death with the increase of the female slaves were to be equally among the said six children…” Orator states the agreement is part of exhibit and states the agreement was not signed by Elizabeth Hopper or her husband but they did enter into the agreement. In 1833 Sarah Combs the widow died and the land and slaves (now 7) to wit: Peter, Charles, Coney and her 4 children to wit: Ann, Eliza, Mariah and a young child not yet named remain in the hands of John C CUMMINS her extr. Orator states that her husband Willis and Elizabeth’s husband had died previous to Sarah’s death and John Combs (the Younger) also deceased leaving a widow and five children to wit: Artemisia (widow & five children: Thompson Combs, Sarah Combs, William Combs, Amey Combs, and Jane Combs, infant children), Helen PAYNE wife of Benjamin also departed leaving her husband and 7 children to wit: Lucy PAYNE married Sampson BARBEE, Sanford PAYNE, Elizabeth PAYNE married James Combs, Hetty PAYNE married Elijah THORNBERRY, Jane PAYNE married Thomas STEWART, Benjamin PAYNE Jr., and William PAYNE. Benjamin PAYNE Sr. conveyed his interest to his children and is of record in Fauquier County. [Orator continues to name those who have purchased the interests of the Payne heirs]. Orator states that the 300 acres is poor and could not be divided equally without injuring each lot. Orator petitions the court for an equitable division of the proceeds from the sale of the land and the slaves.

(Source: Behethilon Cummins v Nimrod Combs, Id # 1852-013, Library of Virginia Archives, Chancery Court Index: Fauquier County, original images from case file, abstracted, and submitted by Sue Elfving for Combs &c)

p. 22-27 Decree issued to appoint a Special Commissioner (John C Cummins) to sell the land and slaves with the proceeds to be divided into 6 parts: Decree dated 4 April 1835.
Peter bought by Mr. Cave at $200
Con and her child M??iah bought by Mr. Shelton at $328
Charles bought by Mr. Alsop at $896
Ann bought by Mr. Shelton at $406
Eliza bought by Mr Chilton at $300
Mana bought by Mr Chilton at $322
Total = $2452.00
Land (264 acres) sold and netted $299.40
1/6 share equaled $439.07

The commissioner states he had to hire out the slaves before they were sold and there were distributions made in the amount of $28.48 per 1/6 share from those proceeds. The distribution accounting for the heirs of Helen Combs Payne was broken down into 7 parts but the share of John Combs decd was not divided.
No information is given for what happened between 1835/6 and 1850, the year the report was filed.

p. 28 The final report of the distribution was dated 29 Oct. 1850.

p. 30 Oath by John C CUMMINS the following do not reside in Virginia: Elizabeth HOPPER, Sampson and Lucy BARBEE, Sanford PAYNE, James Combs & Elizabeth, Benj PAYNE Jr & Sr., Wm PAYNE. Dated 14 Feb. 1834.

p. 32 Newspaper notice dated 17 May 1834 regarding chancery suit.
p. 36 Thos & Jane STEWART of Prince William Co., Va. 14 Feb. 1834
p. 38 Elijah & Hetty THORNBERRY and Nimrod Combs acknowledged the summons. Both in Fauquier.
p. 44-46 Exhibit: Will of John Combs of Fauquier Co. [This will found in Combs &c Fauquier Co. records]

p. 47-48. Conveyance by Benjamin Payne Sr. in trust to Sanford Payne and Samuel Barbee
“ Know all men by these presents, that Whereas, by the last will and testament of John Combs of Stafford County decd. He did bequeath to the children of his son John after the death of his wife of his wife Seth Combs certain slaves being one third part of the Slaves devised by the said John Combs to his said Wife for life and in the said Will enumerates together with their increase, and the said Seth Combs the widow of the said John the devisor, is now lately dead, and whereas my Wife Helen is one of the children of said John Combs designated by the Will aforesaid and as such entitled to an equal part with the other children of the said John Combs mentioned in the said Will, and whose children were five in number, Now Know ye that I Benjamin PAYNE the husband of the said Helen one of the children of the said John, for and in consideration of the love and affection I have for the children by my wife, and also to secure to her a competency for life, and in consideration also of one dollar to me in hand paid at the time of sealing and delivery these presents by Sanford Payne my son and Sampson Barbee my son-in-law I have granted bargained and sold, and do by these presents bargain sell [c/r] and convey to the said Sanford Payne and Sampson Barbee all the right title interest, claim and demand which I have or may be presumed to have in law or equity to the slaves aforesaid which is the part and share of those and their increase coming to my said wife under the bequest of the said John Combs, to have and to possess the same to the said Sanford Payne and Sampson Barbee and the Survivor of them, In trust however and to and for the only use and benefit and behalf of my said Wife for her life and after her death to be equally divided among her children and Whereas Mrs CALMESE one of the other of the children of the said John Combs mentioned in the Will of the said John Combs the devisor is dead without issue. I do hereby also convey and sell in the same manner in trust, to the said Sanford Payne and Sampson Barbee for the same uses, right or title which I may have or be supposed to have in law or Equity to the share of my said Wife to which she become entitled to be the death of the said Mrs. Calamese and I hereby authorize and empower the said Sanford Payne to recover and take possession of the said slaves for the purposes aforesaid at any time it may be in their power to do so. In Witness Whereof I have hereunto set my hand and affixed my seal this 25th day of March 1820. Benja Payne Seal
Sealed and delivered in presence of Edward Robinson, Mathew Jenkins, Thomas Saunders
This Deed of trust was from Benjamin Payne to Sanford Payne was produced to the Court and proved by the oaths of Edward Robinson Mathew Jenkins and Thomas Saunders three subscribing witnesses thereto and ordered to be recorded. Teste Daniel Withers CLS

(Source: Behethilon Cummins v Nimrod Combs, Id # 1852-013, Library of Virginia Archives, Chancery Court Index: Fauquier County, original images from case file, transcribed and submitted by Sue Elfving for Combs &c)

SE Note: In reading this conveyance, keep in mind that John Combs (husband of Seth BULLIT Combs and the grandfather of Helen Combs) is referred to as the devisor. The other John Combs decd. was the father of Helen. John Combs the devisor left legacies to the children of his son John Combs. Mrs. Calmese was Elizabeth Combs, the wife of Marcus Calmes, and the d/o of John Combs and Seth Bullitt. This conveyance infers that Seth Bullit died not long before Benjamin his wife’s interests, and it also documents that Helen Combs PAYNE was still alive as of March 25, 1820 but was likely deceased by 1828 when her children sold these same interests to others.

The 1785 will of John Combs [Sr] the devisor is found in Combs &c Stafford Co. record collections. The 1780 will of John Combs [Jr] son of John the devisor is found in Frederick Co. record collections.

p. 50 Agreement and Legatees Bond between the children of John Combs: “Know all men by these Presents that we the Undersigned have this day Divided the Largest part of the Estate of John Combs decd, we likewise agree & bind our selves that at the Death of Sary Combs widow of of John Combs to Divide Peter & Charles & Comey & her increase & the Land Belonging to said Estate Equally Between us & John HOPPER who married a Daughter of said Combs & for the true Performance of the aboive we Bind our selves our Living Executors or Administrators each to the other in the Sum of five thousand Dollars in witness we [can’t read] our hands & seals this 25 Day of May 1823.” Signed Willis CUMMINS (Seal), John COOPER (Seal), Benja PAYNE (Seal), John Combs (Seal), Nimrod Combs (Seal). Test Dixon Brown, Benjm Combs.

(Source: Behethilon Cummins v Nimrod Combs, Id # 1852-013, Library of Virginia Archives, Chancery Court Index: Fauquier County, original images from case file,transcribed, and submitted by Sue Elfving for Combs &c)

p. 53-54 Indenture dated 10 April 1828 between James Combs of Fauquier County to William E Alexander of Prince William Co., for $1, sells interest in undivided tract of land near old Bent Town Meeting House and slaves Peter C??? Charles and [blank] in occupancy and possession of Sarah Combs.

Note: This James Combs who married Elizabeth Payne is believed to have been James, the son of Nimrod Combs and Elizabeth Marshall.

p. 56-58 Indenture dated 28 April 1828 between Sampson & Lucy BARBEE of Fauquier County to William E Alexander sell all their interest for $1 in an undivided tract of land near the old Brent Town Meeting House land and slaves Peter, Cuna, Charles Ann Sarah and their increase in the possession of Sarah Combs. Lucy Barbee examined privately.

p. 60 Indenture dated 17 Nov. 1828 between Sanford PAYNE and wife Fanny of Fauquier Co. to Henry A Barron of Prince William sell their interest for $1 in an undivided tract of land (near old Brent Town Meeting House) and slaves Peter Charles Cason Ann and Sarah and their increase now in the possession of Sarah Combs.

p. 62 End of File

(Source: Behethilon Cummins v Nimrod Combs, Id # 1852-013, Library of Virginia Archives, Chancery Court Index: Fauquier County, original images from case file, abstracted, transcribed, and submitted by Sue Elfving for Combs &c)