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The Ephraim Witcher Estate Battle

A Witcher Family Genealogy 

This is one page of the partition agreement of the slaves in the Ephraim estate.

You may email me at wwawitcher @ witcher. net requesting the actual digital files.

This is one page of the mortgage agreement between Asa Prior and James Witcher.

You may email me requesting the actual digital files.

Until his death in November, 1819, Ephraim Witcher was a resident of Surry County, North Carolina.

The records I refer to are copies of loose estate papers and deed records located in the Raleigh, North Carolina, archives. I have transcribed the more relevant papers as the heavy calligraphy is almost indiscernible.

These records include inventories of the estate made shortly after Ephraim's death, the distribution of his real and personal property, a petition for the division of slaves among the heirs, the names of those slaves and their fate, and the final liquidation of the estate after the death of the widow Elizabeth Witcher some twenty-seven years later. Also, I include power of attorneys from sons James and John, and an 1848 petition presumed to ask the courts to name new executors and/or grant the right to sell the lands within the estate.

The power of attorney presented to the court in 1843 by James Witcher and John Witcher names each man as a "legatus." By legal definition, this is to say these were children due their part of the estate.

Furthermore, deed book 3: pg 45-47, of Surry County, NC, contains an interesting transaction between James and John Witcher and Asa Prior. On March 8, 1827, both James and John mortgaged their interest in their father’s estate. James received $212.75, while John received $250 from Asa Prior. This mortgage was apparently not recorded in the deed book until the first major settlement of the estate in 1843. I have provided an excerpt of one agreement between James Witcher and Asa Prior. An image of the actual deed book entry is seen at the bottom of this page.

Deed Book 3: 45-47

Asa Prior, from James Witcher, Georgia, Newton County:

Know all men by these presents that I James Witcher of the county and state aforesaid do for and in consideration of the ??? sum of two hundred twelve dollars and seventy five cents which I justly owe Asa Prior of the county of Morgan and state aforesaid do and by these presents now sell to the said Asa Prior all my rights and interests of my fathers and mothers estate now in possession of my mother and Lacy Witcher executors of my father’s last will and testament.  And I do further bind myself my heirs and executors or administrators to relinquish to the said Asa Prior all my part of said estate and if the said James Witcher shall at any time hereafter pay off the above sum of two hundred twelve dollars and seventy five cents with the lawful interest of said state of Georgia then the obligation to be null??? and void otherwise to remain in and of force and virtue in witness my hand and seal the 8th day of March, 1823.
                            Jas Witcher          John Witcher

North Carolina, Surry County: February term 1843

The execution of the written mortgage from James Witcher to Asa Prior was duly proven in open court by the oath of Melton H. Haynes and Tolifaro Witcher who proved the handwriting of the subscribing witness John Witcher and the bargainer James Witcher and also proved that the said subscribing witness John Witcher is not a resident of this state but an inhabitant of the state of Georgia in order to be registered. 
                 F. K. Armstrong, Clk by H. C. Hampton dc
Came to hand the 13th February, 1843 Geo W. Brown

Two petitions presented to the courts in 1842 and 1848, as well as a flurry of court activity in 1843, establish that James Witcher (and John) was in fact a son of Ephraim Witcher and therefore co-heir to his father’s estate. 

In November, 1819, Ephraim Witcher died in Surry County, North Carolina. His will was published, and proved, and is public record to this day. In that will, he lists children:
Betsey and Nancy, and sons William, Lacy, and Benjamin as beneficiaries, along with his wife "Betsey."

Here is a section of Ephraim's will, which later resulted in a multi-year estate battle among his heirs:

"The balance of my estate, both real and personal, I give to my beloved wife Betsey Witcher during her life or widowhood. After her death or widowhood or marriage, my will is that all my negros and their increase be placed in equal lots or parts according to the whole number of my children and drawn for them so as to make the division as equal as may be. As to my land my will is that my executors lay off in such lots or parts as they think best at the day of sale and give twelve months credit and the money equally divided among my children. Lastly I appoint my friends Steven Potter and Lacy Witcher as executors to this my last will and testament...."

Based on surviving court records from Surry County, North Carolina, we know that this division did occur, and that division validates Ephraim had more children than were listed in his will. We may never know why he chose to only list five of them. Maybe the other children had already acquired land, maybe they were from a previous marriage, or maybe their departure to Georgia was upsetting to this plantation owner. Perhaps it’s just that the five listed children were the youngest and unmarried, still living at home; until I can complete my research, this is what I tend to believe.

From the records of deeds, petitions, summons, and power of attorneys, we know who the "whole" of Ephraim's children were and what was his wife's legal first name.

During the 1842, November Term of the Surry County Court of Pleas, a petition to relieve the widow "Elizabeth Witcher" of the estate's slaves, and to distribute them among the heirs, was filed with the court by the widow and five of the children of Ephraim:

Widow Elizabeth Witcher
Elizabeth Witcher
3.  Daniel Witcher
4.  Winston Witcher
5.  Talifaro Witcher
 Nancy Witcher

The other Children being sued as the heir defendants were:

William Witcher
2.  John Witcher
Benjamin Witcher
4.  James Witcher
 Lacy Witcher
6.  Heirs of Sally Prior who intermarried with Asa Prior 

(I assume Sally Prior and Sarah Prior are one in the same. She died on July 2, 1838. On 2-22-1843, widowed Asa Prior made a probate entry in Surry County probate records, Inventories, 1838-1845, pg 235, on behalf of the "Sally Witcher" estate, "Two negros valued at five hundred and twenty seven dollars and 86 cents." Certainly this was part of the distribution of the slaves in the estate, granted as requested by the petitioners. These two slaves were given in the division which took place at Elizabeth’s house on February 20, 1843. That record is listed below. See the record of the Surry County, North Carolina probate entry by
clicking here. Also, click here for an official record of birth and death of Sally Prior.

7.  Heirs of Tabitha Haney who intermarried with Diskin Haney.

I highlighted in red the wife and children who were included in the original will, with petitioner widow Elizabeth being assumed to be the wife Betsey in the will, and the other Elizabeth Witcher being Ephraim’s daughter Betsey.

In this 1842 petition, the argument is made by the petitioners that "widow Elizabeth Witcher" had become, "Old and ill able to manage and control said slaves, that she is willing and desirous to surrender her interest" in the slaves. The petitioners wanted a division of the slaves among the heir children. According to this petition, all defendants, except William J. Witcher, were absent from the state, so advertisement to appear in the Spring Term Court of Pleas was requested.

This petition resulted in James Witcher and John Witcher securing lawyers in the state of Georgia, who were to represent them as heirs of the estate. James secured his son Diskin N. Witcher as his lawyer, while John Witcher secured his son Ambrose J. Witcher (also known as A.J.) as his lawyer. To see the family connections, you should review the family bible record imaged on this site.

James Witcher wrote in his power of attorney that he appointed Diskin H. Witcher to, "...Ask demands, sue for recover, and receive of and from Lacy Witcher and Steven Potter, executors  of the last will and testament of Ephraim Witcher, deceased, of the county of Surry County, and state of North Carolina, all such sum or sums of money with all my interest in the estate both real and personal & mixed of every description of the aforesaid Ephraim Witcher dec'd which is now due me as one of the legatus of the said Ephraim Witcher, deceased, and to have use and take lawful ways and means in law of equity in my name." Source: Actual court petition 

This is the same James Witcher listed in the 1842 petition as an heir defendant, and this power of attorney, signed January 7, 1843, was his response to the petition.

In these power of attorney papers, James and John Witcher responded to the petition by calling themselves "legatus." A legatee is a person to whom a legacy is given by a last will and testament, as in a child who is due their part of the parent's estate; James Witcher (and John Witcher) was one of the children not listed in the will, but was one of the "whole" of Ephraim's children, and was therefore part of this suit, in which he defended his right to the estate. But that aside, other court documents specifically name both James and John as sons of Ephraim Witcher.

For your research, I will now include a transcript of the actual division of the slaves in the Ephraim Witcher estate; the actual deed book image will be included at the bottom of this page.

Surry County, North Carolina, Deed book 2: pg 201

​Witcher’s heirs division of negros To the worshipful the court of pleas and ???    ??? held for the county of Surry on the second Monday of May next. In the case of Elizabeth vs. William J. Witcher and others petition for division of slaves your commissioners beg have to report that they have met at the house of the said Elizabeth Witcher on the 20th day of Feb, 1843 and after being duly sworn did examine and value said negro slaves mentioned in petition to wit,
Martin, Lucy, Trim, Ambrose, Polly, Lucinda, Hardin, Haywood, Chaffin, Jackson, Clemmons, Carolina, Crawford, Judy, Joel, Jennet, Mary, Jinny, Martha, Samuel & Edmund find that Benjamin Witcher have received two dollars and sixteen cents more than his proportional part we therefore made them in eleven lots which was drawn as follows.

Talliaferro Witcher Lot No. 1 – Martin, Lucy & Haywood with the additional sum of six dollars and twenty cents from Lot No. 10 it being 1/12th part
Lot No. 2 to Daniel Witcher  - Clemmons with the additional sum of ninety seven dollars and eighty six cents from Lots No. 8 & 11 with the two dollars and sixteen cents due from Benjamin Witcher it making 1/12th part lot 
No. 3 to Lacy Witcher – Crawford with the additional sum of ninety seven dollars and eighty six cents from Lots No. 6 & 7 it making 1/12th  lotLot
No. 4 to John Witcher – Hardin & Samuel with the additional sum of six dollars and twenty cents from Lot No. 10 it making 1/12th partLot
No. 5 to Winston Witcher – Trim and Mary with the additional sum of fourteen dollars and fifty three cents from Lot No. 10 it making 1/12th part Lot
No. 6 to James Witcher – Jackson & Martha pay to Lot No. 3 thirty five dollars and forty seven cents leaves him 1/12th part
Lot 7 to William Witcher – Ambrose & Carolina pay to Lot No. 3 fifty two dollars and fourteen cents which leaves him 1/12th partLot
No. 8 to Daniel Roberts and wife Elizabeth – Edmund & Jinny pay to Lot No. 2 sixty eight dollars and forty seven cents which leaves them 1/12th partLot
No. 9 to Melton H. Haynie admn. of ?? Tobith?? Haynie decd - Lucinda & Chaffin with the additional sum of six dollars and fifty three cents from Lot No. 10 which makes 1/12th part
​Lot No. 10 to Asa Prior admn. of Sally Prior decd – Judy & Joel pay to Lots No. 1, No. 3, No. 4, No. 5, No. 9 forty three dollars and three cents which have 1/12th part
Lot No. 11 to Nancy Witcher – Polly & Jenette pay to Lot No. 2 twenty seven dollars and fourteen cents which leaves her 1/12th part

Given under our hands and seals this the 26th April, 1843  E. Thompson  Rich Gwyn  Shadrach Franklin

North Carolina, Surry County May term 1843 the written report was returned unto open court and confirmed by the court and ordered to be registered.                         F. K. Armstrong, clk                        By H. C. Hampton, dc

​Before we move to the next petition, issued in 1847, I wish to point out my opinion that the Lacy Witcher, who is the executor in Ephraim's will, is not the son who inherited the 83 acres known in the will as "Lacefields Place." One reason for assuming this is that both Steven Potter and Lacy Witcher were called "my friends" in his will. It is important to note that the name Lacy is widespread in the Witcher households of those days. Ephraim’s son Lacy was later to be imprisoned in Tennessee for arson, while the executor Lacy would move to Paulding County, Georgia and assume the role as an agent for the government in the affairs of the Cherokee Indians. This point has been elaborated on this site. Click here to
read more about these assumptions.

I believe Ephraim’s friend Lacy Witcher would later become an Indian agent in the Cherokee lands of northern Georgia, and was in opposition to the heavy-handed policies of Ephraim's son, Captain John Witcher. John was a self-empowered militia leader opposing and harassing the local Indian population. One research document identifies this Lacy Witcher as having "no known relationship” to John Witcher, therefore further eliminating him as the son Lacy who inherited Lacefields place.

In the Spring Term of 1848, a petition from Tolaifero Witcher, William J. Witcher, Elizabeth [wife of Daniel Roberts], Nancy Witcher, and Winston Witcher by his guardian William J. Witcher was levied against Melton Haney, Jackson Witcher,
Hameet [wife of William Hartsfield], Bushrod Witcher, D. Ann Witcher, Elizabeth Witcher, Polly Witcher, Ambrose Witcher, Asa Prior [Sally is now dec'd; Asa was once Sally's husband] Benjamin Witcher, Daniel Witcher, James Witcher, and Lacy Witcher. 

This petition, unfortunately, is missing the last pages; however, I can validate the following points from a
Witcher family Bible record and the first part of the petition.

1.  A Witcher family Bible record says that John Witcher had died on December 25, 1847.
2.  This same John Witcher is listed as a "lunatic" under the guardianship of his son, Bushrod Witcher. On March, 1845, a $2,400 bond was secured by Bushrod Witcher, James M. Butram, A.J. Witcher, and Polly P.P. Witcher. These all (highlighted in red), except Mr. Butram, are listed as children of John Witcher in the family Bible record.
Source: Carroll  County, Georgia, Guardianship Book, pg 117, recorded May 3, 1845.
3.  James Witcher is listed in the same family Bible record, along with wife and children.
4.  This validates the relationship between these two men: as brothers, as sons of Ephraim Witcher, and as heirs to the Ephraim estate.
5.  The executor Lacy Witcher was not living in North Carolina as of 1847, nor had been for many years.
6.  Steven Potter, the other executor, was dead.

Though I don't have the last pages of this petition, I can conclude that at some point around this time, William J. Witcher was assigned by the courts the office of executor, as an inventory of sold items from the estate was made on December 10, 1847, and William J. Witcher had signed off as executor. Therefore, we can also assume that Widow Elizabeth must have recently died in 1847, some twenty-seven years after her husband Ephraim had passed away.

The passing of Widow Elizabeth must have been the reason a request was made in the petition by some of the heir-apparents to sell the land in the estate, some remaining "400 acres of land," m/l. The petition to the 1848 Spring Term Court included a request to advertise to sell lands in the estate. The following publication was in fact made in the Greensboro Patriot newspaper, and is a matter of public record in archived copies of this publication.

William Witcher, and others
VS.Milton Harvey, Asa Prior, and others
Petition for sale of land:

It appearing to the satisfaction of the Court that the defendants, Milton Harvey, Jackson Witcher, and wife, Harried Witcher, Bushrod Witcher, Denny Ann Witcher, Elizabeth Witcher, Polly Witcher, Ambrose Witcher, Asa Prior, Benjamin Witcher, Daniel Witcher, James Witcher, and Lucy Witcher, are not inhabitants of this state: it is therefore ordered by the Court that publication be made for six successive weeks in the Patriot, a newspaper printed in Greensboro, that unless the said defendants appear at our next Court to be held for the County of Surry in the Courthouse at Rockford on the 1th Monday after the 4th Monday in March, 1848, then and there to plead, answer of demur to this issue, judgement will be taken pro confesso will be entered against them.

On April 17, 1848, the Clerk and Master of Equity for Surry County wrote a note indicating that the land in the estate was sold to the highest bidder for $2,000 [$5 per acre], and the negros for division were hired out till June 27, 1848. 

On June 26, 1848, four slaves named Allen, Melton, Nice, and Rachel were valued at $2000. These were four of the five slaves Widow Elizabeth retained as indicated from the 1842 petition. One slave, Sally, presumably had died. These individuals were sold, and the monies distributed.

The available records indicate that in late 1849, and January, 1850, a final flurry of activity occurred in the settlement of Ephraim's estate. After lawyers and other bill collectors were paid, William J. Witcher and Benjamin Witcher received cash. On January 8, 1850, executor William J. Witcher authorized lawyers Solome and Graves to pay Benjamin Witcher $380 for his part in the distribution. This concluded the matter of Ephraim Witcher's estate, almost thirty years after his death.

There are images of some estate entries in the Surry County probate books. You can click the following link
1820 and 1847 to begin your search.

You will need to register with FamilySearch, free and well worth the time. 

Below are the images of court records I promised. Happy hunting, Wayne Witcher, a gggg-grandson.