Will of John McMillan of Ashe Co., NC

The will of John McMillan (1840) is found in Ashe County, North Carolina Will Book A (1801-1857). The will is transcribed here because of the inclusion of a daughter, Nancy (McMillan) Phips, as an heir, and because of the various other close relationships to the Phips family of Ashe County.

According to Benjamin Floyd Nuckolls (Pioneer Settlers of Grayson County, Virginia, Bristol, Tennessee: King Printing, 1914, pp. 173-178), John McMillan was a “man of letters” and a “native of Scotland.” Nuckolls said that McMillan settled on Elk Creek and that he became the first clerk of Ashe County, where he was an “extensive farmer.”

John McMillan’s daughter Nancy married Joseph Phipps, according to Nuckolls. Nancy was born about 1798 in North Carolina according to the 1850 census, but about 1796 in Virginia according to the 1860 census.

In her father’s 1840 will, Nancy is referred to as Nancy Phips. The census shows her living in Grayson County, Virginia on 4 October 1850 as the head of household, with no children and no husband. On 25 September 1860, the census shows her living in Grayson County but in the household of her son Joseph.

Nancy (McMillan) Phips appears to have been the mother of at least the following:

  • Alexander Phips or Phipps, born about 1819-1820 in Virginia 1950 and 1860 censuses); Nuckolls says he married Miss Ludema Thomas and settled at “the old Field’s place” on Bridle Creek (note the Field reference in the will, below); Alexander and Ludema (Thomas) Phips or Phipps were the parents of: Rosamond, Emily, Columbus, Martha, Nancy, Stephen, Violet, and Alice
  • Joseph Phips or Phipps, born about 1836 in Virginia (1850 and 1860 censuses); he married Cynthia, as shown in the 1860 census, with his mother living in the same household; Joseph and Cynthia appear from the census to have been the parents of Alice
  • Nancy Phips or Phipps, born aobut 1840 in Virginia (1850 census)
  • Larkin Phips or Phipps who, it is claimed, married Charity Barton in 1834 in Grayson County; they were supposedly the parents of Jackson Phipps who married Mary Osborn
  • John Mack Phips or Phipps, who married Margaret Osborne according to Nuckolls; Nuckolls, who simply calls him John, says he “settled on Saddle Creek,” but he is called John Mack in the 1922 “Reminiscences” of Columbus Phipps

The older Nancy’s husband Joseph Phips is said to have been born about 1786 in Grayson County. Nuckolls says he “settled on Saddle Creek, Va.” and that he was “one of Grayson county’s best farmers.”

His parents were Benjamin and Jean (Hash) Phips or Phipps. Benjamin’s parents are unknown, despite countless dogmatic but unsourced Internet claims.

Another daughter of John McMillan was Peggy, who is referred to in his will. She married James Maxwell.

John McMillan’s Sr. Will

In the name of God Amen, I John McMillan of Ashe County & State of North Carolina, being at this time in health of body and of sound and disposing memory and Judgement, Blessed be God for the same I do this 24th day of September 1840 make this my last will & Testament in manner and form as follows, I give unto my son Andrew McMillan all the land that I own on Nathans Creek being in several tracts which I Value at 1700 [or 1400?]. Dollars, out of which he is to pay to John McMillan two Hundred Dollars, and to my son John McMillan I give Holman place begining on potatoe creek between him and James Land runing up the ridge above the Coots field and near the fence of the old field then to the waggon road southward to the maple branch thence up the maple branch as far as my lands extends and some entrys towards Bakers ridge also part of the Coots tract on the north side of potatoe Creek, all of which I Value at 1300 Dollars, number of acres not Known, & to my son Alexandir I give the place I live on also one hundred acres on the north side of the Negro boy branch also the lower part of the Maxwell tract, from the West corner of my old tract from a chesnut tree marked E. O. being an old line run by Enoch Osborne and from said tree runing southward near an old path to the [? (looks like “rich”)] [Ditch?] [? (looks like “tranch”)] tract also the [ditch?] branch tract of one hundred acres all of which I value at 2000 Dollars, and to James McMillan’s sons I give all the lands between John McMillans part and Alexanders being in several tracts all joining the exact quantity I do not Know but value it at 1500 Dollars, which land is allotted entirely for the boys, the girls to have no part of it

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And to my daughter Polly Maxwill I give two tracts of land where she lives of two Hundred Acres Each one of these tracts I had allotted for Andr. Fields if he would settle upon it she is to have said land besides a share of my other property, my will is that my Slaves be divided as follows, to James’ Heirs I give Isaac, Henry, Tilly, & child sam, To Andr. McMillan I give Mary & children she has at his house that is Jack Alfred & the younger ones and Duncan.

To my son Alexander, I give Dick Ship, & [Tean?] and to Nancy Phips I give Kett, & children, James’ Rindy & children and to my son John McMillan I give Peter Hugh Simon & a Girl Franky, Maysie Reeves I give Lois & children Rachal & Celia, and to my daughter Polly Maxwill I give Hessy & children and Violett & [Poll?] & child, & Ben, & whereas I lent a girl named Wenney to James Maxwell when he married my daughter Peggy my will is that the children or increase of said girl be equally divided among said Peggy’s children when they are of age or become lawfully entitled to them said Maxwell to Keep Winey and one of her children his lifetime and any sale or disposal of Wenneys chldren except with the concent of my Executors shall be nul and void, & what money James Maxwell owes to me [in?] the largest note which will be more than one Hundred Dollars to each one of them I request my Executors to see it faith fully taken care of either by collecting it or giving his note to Peggy’s children for their share of it as soon as they become entitled to it & no claim or account that he may cause against them shall be as set off against

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the debt that he ows to me and the said James Maxwell or children to have no claim or share in the rest of my property on the account of his marriage with Peggy, the girl Marry at Pollys house she agreed to discount out of her share [of?] 350 dollars for her if she is still willing to Keep her she may do so & if not let her be sold in the family, the girl Ann, at Andrew Hathorns I give to Andrew & John & my will is that all my other property not willed away be equally divided or sold and the money divided equally divided, and what money to me by note my Executors to divide the notes equally and each one to collect his own share & if any of the children dissent or be contentious my my [sic] will is that each dissentor pay one Hundred Dollars to them who are willing to abide by it to be recoverd by a warrant, at the division of money or notes I want my Executors to take from the whole amount of my Estate the sum of one Hundred & Eighty Dollars and divide the same equally among James McMillans sons when they come of age and if any of them dies before they come of age the living ones to have their share my Executors may Keep the money in their own hands by paying three per Cent interest and be liable for it or lend it out at six per Cent and take securety for it and not be liable for its loss, and the said boys to have their shares equal with their sisters, also, the said legacy to the boys not to be subject to pay any debt they may contract before they come of age and what money is coming to each of James’ children let that part be paid to each one individually both to sons and daughters by giving them notes to collect or wait till money is collected.

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And I hereby constitute and appoint Andr. McMillan & Alexander my sons Executors of this my last will & Testament to be executed agreeable to the true entent and meaning thereof & they are not to charge per cent but to have sufficient pay for their trouble

In witness whereof I have hereunto set my hand & seal this 24th day of September 1840.

John McMillan (seal)

The debt that James Maxwell ows to me will be over one Hundred Dollars to each one of Peggy’s children but if it is over [sic] let them have it all. I want my Executors to see the children paid or Maxwill give them notes

[signed:] Jno. McMillan

[witness, signed:]
Elijah Irwin Jurat.

State of North Carolina
Ashe County

Feby Term 1844

The within will was duly proven in open court by the oath of Elijah Irwin & ordered to be Registered.

Test.
Jno. Ray [Clk C? ]

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