Robert Treat Paine Papers, Volume 4
Joseph Gibbs appt. vs. David Thayer applee (& origl. Platf)
in a Plea of Review of a Plea of Land &c Capt. Peter Papillon held 7, or 8,000 acres of Land in the Nipmug Country under Frances Blackwel & al. as appears by Papers No. 1, & 2. Papillon Sold Several Tracts to Sundry persons, as is described No. 3. The Residue descended from him (intestate) to his 4 Daughters & only heirs at Law, Katharine Gibbs—Martha Williams—Mary Thomas, (wife of Dr. Wm. Thomas) & Elizabeth (Decd.): Which Daughters, thereupon held said Residuum, in Coparcenary—(No. 3).1
I2 can’t yet discover that more than one of sd. coparceners (or their Heirs,) have ever made or Had partition of sd. Residue—& it seems that ¾ths of sd. Residue is as yet Common & undivided, by 3 or the Parceners or their Heirs I have been told that there was a Division made by a Court of Probate in the County of Worcester—& there is something that looks like it No. 4.
But, Be this as it may, whether the land is held in Severalty or in Common, there will, I believe, be no dispute, on the part of the Original Platf., but that the Right to land in Question vested in Katharine Gibbs. If I understand the Controversy Rightly, Thayer derives his Title from the Same source—Supposing sd. Catharine to die without any Heirs of Her Body—& that her 4th Part is Sunk into the Estate of the other three Parceners, their Heirs, or Alienees.
No. 5. This leads to, & now Introduces, the Great Question, whether the appt. is the Son & Heir of George Gibbs & Katharine Gibbs (quondam Papillon). The origl. Platf. depends entirely upon Bastardising Jo. Gibbs, origl. Deft.—allows that he is The Son of Katharine, but Says that he was begotten in Adultery by some other man—during life of the Baron.
There is no proof But that George Gibbs had Seasonable access. There is none of his Total absence before, at, & after a Reasonably Supposeable time of Access, & Conception, & Gestation. George Gibbs was alive & in health before & at the time of Jo. Gibb’s Birth So that, as I apprehend, Non-access, must be proved by the origl. Platf:3
You will See the Papers & Peruse them. When that is Done—Please to write me all necessary directions for any further Provision in Evidence, you think may be need full.
Be pleased to take an Extensive & Commanding veiw of the General Nature of the Controversy—& Inform me what are the Cardinal Points that must be attended to, & on whh. the cause must Turn.
I depended on Col. Davis4 to give you the History of the matter. I find he has not. This Description is the creature of a Hasty moment—& you must make the best of it. You will be well paid for a Critical attention to the Cause, as it is of the Highest Importance to our Client.
Peter Papillon (1681–c. 1733), a Boston mariner, in 1720 purchased 6,000 acres of land at Oxford (“in the Nipmuck Country in the County of Suffolk”), Mass., from John Blackwell and the widow Frances Blackwell, both of Stepney, England. He also purchased an additional tract of 1,714 acres, formerly owned by Dr. Daniel Cox of London, for a total of £300. Papillon subdivided the property, and he and his wife sold various lots between 1729 and 1732. He died shortly before May 10, 1733, when administration was granted on his estate. He was survived by the four daughters mentioned in this letter: Elizabeth, wife of John Wolcott of Salem; Katherine, wife of George Gibbs of Boston; Martha, wife of Richard Williams of Oxford; and Mary, wife of William Thomas of Boston. Katherine (Papillon) Gibbs died before Feb. 6, 1752, when John Ballard was appointed administrator of her estate. The estate inventory called her “of Boston and last of London in Great Britain, widow,” and valued her remaining real estate in Oxford at £704 (NEHGR 124[1970]:166–172).
William Stearns (1749–1783) was a 1770 Harvard graduate and practiced law in Worcester, Mass. (Sibley’s Harvard Graduates, 17:436–438).
This case is part of a series of litigation, beginning in 1773, concerning the title to the land in Oxford. This portion of the case was heard as Joseph Gibbs, plaintiff, v. David Thayer at the Apr. 1780 session of the Superiour Court of Judicature in Worcester County. RTP and William Stearns represented the plaintiff, and Levi Lincoln stood for the defendant. Although the case went to the jury, it was continued “at the motion of the Plaintiff who agrees if he finally recovers not to take Costs this term. Jury [was awarded] half fees, which is paid by the Plaintiff.” At the next session of the court in Sept. 1780, a second jury “find the former Judgment erroneous & find the Original Defendant not guilty. Judgment for reversion of the former Judgment, and Restitution & former Costs and Costs of this present Review” (Superiour Court of Judicature Minute Books, Worcester County, Apr. and Sept. 1780. Massachusetts Judicial Archives, Boston, Mass.). A discussion of the case, particularly the issue of “livery of Seizin,” which may have been first determined in America by this case, is found in George F. Daniels, History of the Town of Oxford, Massachusetts (Oxford, 1892), 286–287. The portion of the case concerning the original 1701 deed by Daniel Cox eventuated in Cox and others v. Edwards (Supreme Judicial Court, Worcester County, Oct. 1782). The opinion by Chief Justice William Cushing appears in Reports of Cases Argued and Determined in the Supreme Judicial Court of the Commonwealth of Massachusetts, ed. Dudley Atkins Tyng (Boston, 1818), 14:491–495.
Jacob Davis (1741–1814) was the Oxford representative to the state legislature. He served as a militia colonel in the Revolution and removed in 1786 to Vermont, where he had held land since 1780 and where he became founder of Montpelier (George L. Davis, Samuel Davis of Oxford, Mass., and Joseph Davis of Dudley, Mass., and Their Descendants [North Andover, Mass., 1884], 23–27).