Introduction
John Allen presented his claim to John Fleming’s land (west half of Lot 1 Concession 6 in Douro) before the Second Heir and Devisee Commission on three occasions. On July 15, 1840 and July 15, 1841, the Commissioners deferred their decision, pending Allen providing additional information to support his claim. The Commissioners finally allowed Allen’s claim on July 5, 1842.
Genealogical take-aways
John Fleming died in 1833 [Affidavit of Michael Sullivan, June 24, 1839; affidavit of John Allan, July 1, 1840; affidavit of Bridget Allan, July 1, 1840].
A wealth of information comes from the affidavit of Bridget Allen and Patrick Sullivan. Though the affidavit is undated, Bridget’s deposition addresses the Heir and Devisee Commissioners’ request for proof that John Fleming had no children or grandchildren who had claim to his land in Douro. The Commissioners had made this request at their hearing on July 15, 1840 – and the affidavit of Bridget Allen and Patrick Sullivan would have been presented to the Commissioners’ meeting on July 15, 1841. We assume, therefore, that the affidavit was prepared in 1840 or 1841 and calculate the years below accordingly:
John Fleming had two daughters, Bridget and Catharine. Bridget Fleming (of course) married Edmond Allen. Catharine Fleming married a man named Johnson. Catharine (nee Fleming) Johnson died in 1816 or 1817.
Catharine (nee) Fleming had two daughters, Bridget Johnson and Catharine Johnson.
Bridget Johnson travelled with her grandfather, John Fleming, and her aunt (Bridget (nee Fleming) Allen) and the rest of the Allen family from Ireland to Upper Canada in 1825. Bridget Johnson moved to the United States between 1836 and 1838.
Bridget (nee Fleming) Allen had not heard from Catharine Johnson since 1829 or 1830.
Sources
We have compiled a document from three sources:
- Minutes of three meetings of the Second Heir and Devisee Commission (pp. 2-6)
- John Allen’s Case Record (pp. 7-24, 27-30).
- Missing page from Allen’s Case Record (pp. 25-26).
Second Heir and Devisee Commission
Source: http://www.archives.gov.on.ca/en/db/deviseedb.aspx. Accessed June 4, 2023.
The second Heir and Devisee Commission was established by legislation in 1805, essentially continuing the functions of the first Heir and Devisee Commission that existed from 1797-1805. Whereas the first Heir and Devisee Commission heard and determined claims to land brought forward by original nominees, their heirs devisees or assignees, the second Commission was confined to claims made solely by heirs, devisees or assignees, since a majority of the original nominees had either died or had left the country. The second Commission was also more centralized, with sittings generally taking place in the Executive Council Chamber of the Court House in the Town of York. Sittings were originally held for ten days in March and in June, but were later confined to fifteen days in July.
Appointments to the Commission were made by the Lieutenant Governor from members of the Executive Council and the Court of King’s Bench, with the Chief Justice being an ex officio member. Three Commissioners, of whom one had to be a judge, formed a quorum; six constituted a full tribunal. Decision was by a majority vote of the Commissioners present. At the first meeting in 1805, John Beikie, Deputy Clerk of the Executive Council, was appointed Clerk to the Commission.
Commission records
Library and Archives Canada holds most of the records of the first Commission (1797 to 1804) and some of the records of the second Commission (1805 to 1854). The records are arranged by district, then by type of document (RG1 L5, volumes 1 to 104, microfilm H-1133 to H-1153). These microfilm reels are digitized and can be viewed free on the Héritage website.
Microfilm | Volume | Pages | District | Title or description of records | Date |
---|---|---|---|---|---|
H-1152 | 103 | 389 to 536 | not specified | Reports of the Commissioners | 1841 to 1850 |
Case records
The Archives of Ontario holds 5184 case files that document claims for land made to the Second Heir and Devisee Commission from 1804 to 1895. Each case file may include some or all of the following documentation:
- Copies of searches conducted by the Surveyor General’s and, later, the Crown Lands Department, and sent to the Commission recording: whether a location had been made for the land in question and, if so, the name of the individual to whom the land was located and when the location was made; the justification for the location (e.g., an order-in-council); background information relating to the location; whether the land had been described for a patent; whether settlement requirements had been met. Files also may include copies of location tickets.
- Notices signifying the intent of claimants to pursue a claim before the Commission, as well as affidavits from the local Clerk of the Peace attesting that the notice had been publicly read and proclaimed in the Court of General Quarter Sessions and had been displayed in the office of the clerk.
- Lists of documents compiled and submitted relating to the claim, as well as affidavits submitted by claimants and supporting affidavits from witnesses.
- Copies of relevant indentures assigning interest in the land in question, as well as original wills and copies of wills assigning interest in land to heirs.
- Affidavits from Land Registrars attesting to the fact that the indentures, memorials and wills in question had been registered, as well as incoming correspondence received by the Commission from claimants, trustees, solicitors, and other interested parties.
- Copies of receipts issued by the Crown Lands Department documenting the payment of instalments on sales as well as reports from land agents relating to the claim in question, and maps showing the land claimed.
- Some files include family trees. Documents within the files can contain genealogical information concerning the background of both the original locatee and of the claimant, their occupation, and family connections.
Chronology
Items in our document reflect the following chronology:
Item | Date | Record | Page Nos. |
1 | June 24, 1839 | Affidavit of Michael Sullivan | pp. 29-30 |
2 | June 1, 1840 | Notice of claim of John Allen | pp. 16-17 |
3 | July 1, 1840 | Affidavit of John Allen | p. 24 |
4 | July 1, 1840 | Affidavit of Bridget Allen | pp. 25-28 |
5 | July 6, 1840 | Notice form of Thomas Ward, Clerk of the Peace | p. 15 |
6 | July 13, 1840 | Certification of John Radenhurst, Acting Surveyor General | p. 14 |
7 | July 13, 1840 | Notice of William H. Lee, Clerk, Commission | p. 13 (top) |
8 | July 15, 1840 | Minute of Commission Decision | p. 13 (bottom) |
9 | July 15, 1840 | Register of Commission Decisions | pp. 2-3 |
10 | n.d. | Affidavit of Bridget Allen and Patrick Sullivan | pp. 21-23 |
11 | June 24, 1841 | Notice form of Clerk of the Peace | p. 10 |
12 | July 15, 1841 | Minute of Commission Decision | p. 13 (middle) |
13 | July 15, 1841 | Register of Commission Decisions | pp. 4-5 |
14 | March 10, 1842 | Notice of John Allen | pp. 11-12 |
15 | May 21, 1842 | Affidavit of Daniel Sheehan | pp. 18-20 |
xx | July 1, 1842 | Notice of William H. Lee, Clerk, Heir and Devisee Commission | p. 8 (top) |
16 | July 4, 1842 | Re-certification of Surveyor General | p. 9 |
17 | July 5, 1842 | Minute of Commission Decision | p. 8 (bottom) |
18 | July 5, 1842 | Register of Commission Decisions | p. 6 |
Transcriptions
1. Affidavit of Michael Sullivan – June 24, 1839
Newcastle District
To Wit
Michael Sullivan of the township of Otonabee in the said District, Yeoman, maketh oath and saith that he was well acquainted with the late John Fleming of the township of Douro, now deceased – that the said John Fleming died in the year of our Lord one thousand eight hundred and thirty-three – that two or three years before his death the said John Fleming made a will in which he devised all his right to and interest in the west half of lot number one in the sixth concession of the township of Douro, of which this deponent witnessed, to John Allan, the grandson of the said John Fleming – that this deponent has reason to believe that no other will was subsequently made by the said John Fleming and that the said will has been since lost as this deponent has heard and believes.
[signed] Michael Sullivan
Sworn before me at Peterborough within said District this 24 day of June 1839
JG Armour [?], A [illegible] in B[?] [?]C[olbourne]. D[istrict].
2. Notice of John Allen, June 1, 1840
Take Notice
That John Allan of the township of Douro, Yeoman, will claim before the Commissioners under the Heir and Devisee Act at their next sittings in July [illegible] the west half of lot number one in the sixth concession of the said township of Douro and Devisee of John Fleming, deceased, the original nominee of the Crown.
1 June 1840
[written across the Notice: T[homas] Ward, Clerk of the Peace
3. Affidavit of John Allen – July 1, 1840
Newcastle District
To Wit
John Allan of Douro in the Newcastle District, Yeoman, maketh oath and saith that the will of the late John Fleming of the same place, Yeoman, who died about seven years ago, was in the possession of this deponent, and that he lost the same in 1834, and deponent further saith by said will the said late John Fleming devised all his right to the west half of lot number one in the sixth concession of Douro aforesaid to him this deponent, and that deponent has been since unable to find the said will.
And deponent further saith that he believes his claim to the said lot to be equitable and correct and that he is not aware of any adverse or other claim or title existing for the said lot on the part of any person whatsoever and this deponent also further saith that he resides on the said lot and that he has resided theron for about ten [?] years and that there are about thirty-five acres cleared upon the said lot and a house and barn built thereon and that said improvements have been made by this deponent, and lastly that no adverse title exists to the said lot to the knowledge of this deponent.
[signed] John Allan
Sworn before me at Peterborough in the Newcastle District this 1st day of July 1840.
J. G. Armour [?] [illegibile] A. Comm. in B. R. for taking aff[idavi]ts Newcastle District
4. Affidavit of Bridget Allen – July 1, 1840
Newcastle District
To wit
Bridget Allan of Douro in the Newcastle District, wife of Edmond Allan of the same place, Yeoman, maketh oath and saith that she is the only surviving child of the late John Fleming of the same place, Yeoman, and that the said John Fleming died seven years ago – that John Allan of the same place, Yeoman, is the eldest son of her this deponent – that she this deponent knows that the said late John Fleming made a will in his life time by which he devised the west half of lot number one in the sixth concession of Douro aforesaid to the said John Allan – that deponent has seen and read the said will and that he made no other will as deponent believes – and deponent further saith that the said will has been given to the said John Allan and that he has lost it as deponent believes – deponent also further saith that said John Fleming made no assignment of the said lot in his life time and that said John Fleming at the time of his death and for two or three years previously resided with this deponent and her husband and that the said John Allan resided upon the said lot two or three years before the death of the said John Fleming by the leave of the said John Fleming – and further deponent saith that she would have inherited the said lot if no will had been made and that she is perfectly satisfied of the right of the said John Allan to the said lot.
[signed] Bridget Allan
Sworn before me at Peterborough in the Newcastle District this 1st day of July 1840.
J. G. Armour [?] A. C[?], for taking aff[idavi]ts, Newcastle District
5. Notice of Thomas Ward, Clerk of the Peace – July 6, 1840
[notice form]
I do hereby certify, that the annexed Notice of Land Claim, has been up in the Office of the Clerk of the Peace in and for the District of Newcastle for the space of thirty days – to wit, from the fifth day of June 1840 until the day of the date hereof. The claim of John Allan, west half of no. one sixth con. Douro. Clerk of the Peace Office, this sixth day of July 1840.
T[homas] Ward, Clerk of the Peace
6. Certification of John Radenhurst, Acting Surveyor General – July 13, 1840
To the Honourable The [Heir and Devisee] Commissioners etc. etc. etc.
A Search in the Surveyor General’s Office
Toronto, 13 July 1840
I certify that the west half of lot no. one in the sixth concession of the township of Douro was located in the year 1825 in the name of John Fleming as a settler under The Honourable Peter Robinson, for which no description has issued.
[signed] J[ohn] Radenhurst
7. Notice of William H. Lee, Clerk, Heir and Devisee Commission – July 13, 1840
[marked “2” and “239”]
[top]
Notice
John Allan
Rec[eived] from J. G. Armour, Esq., 13th July 1840.
W[illia]m H. Lee, Cl[er]k of Com[mission]
8. Minute of Commission Decision – July 15, 1840
[bottom]
15 July 1840
Deferred for proof that Fleming left no other children who left issue.
[signed] J. B. Robinson, C[hief] J[ustice]
V[ice] Ch[ancellor] Mr. Justice Jones
Minutes Claim No. 53
id=”register-commission-decision-18400715″>9. Register of Commission Decision – July 15, 1840
July 15, 1840 – Claim deferred
https://heritage.canadiana.ca/view/oocihm.lac_reel_h1152/534
Commissioners Present: The Honourable John Beverly Robinson, Chief Justice, the Honourable Jonas Jones, and the Honourable Archibald McLean – two of the judges of the Court of King’s Bench.
https://heritage.canadiana.ca/view/oocihm.lac_reel_h1152/536
No. of claim: 166. Name of Claimant, Residence, Addition etc.: John Allan of the Township of Douro, Yeoman, claims as Devisee of John Fleming – deceased. Lot: West half 1 Concession: 6. Town or Township: Douro. District: Newcastle. Acres: blank. Original Nominee: John Fleming. Date and Decision of the Commissioners: Deferred for proof that Fleming had no other children who left issue.
10. Affidavit of Bridget Allen and Patrick Sullivan
Newcastle District
To wit
Bridget Allan of the township of Douro in the Newcastle District, wife of Edmond Allan of Douro aforesaid, yeoman, and Patrick Sullivan of the same place, yeoman, severally make oath and say and first this deponent Bridget Allan for herself saith that she this deponent and Mary Johnson were the only children of the late John Fleming late of the said township of Douro that the said Mary Johnson had only two children, both daughters, named Bridget and Catharine – that Catharine has not been heard of by the deponent for the last twelve eleven years and that said Bridget has left this province three or four years ago and is now residing in the United States of America.
And this deponent Patrick Sullivan for himself saith that he knew the late John Fleming about thirty years ago, that he had only two children by his wife, Bridget Allan and Mary Johnson, and that Mary Johnson died about twenty-four years ago having – deponent further saith that he has heard the late John Fleming two or three times say that he had given the west half of Lot number one in the sixth Concession of Douro aforesaid to John Allan, his grandson, and that the said John Allan occupied the said land to this deponent’s knowledge for about two years before the death of the said John Fleming.
[signed] Bridget Allen
X his mark Patrick Sullivan
Severally sworn before me at Peterborough in the Newcastle District the said Bridget Allan and the said Patrick Sullivan and I do hereby certify that the above affidavit was read in by me to the above named deponents and that they seemed perfectly to understand the same and that Bridget Allen with her signature and Patrick Sullivan made his mark thereto in my presence.
J. G. Armour, A. C[?]
in B.R. N[ew]C[astle]D[istrict]
[back]
Affidavit of Mrs. Allan & P. Sullivan
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
I do hereby certify, that the annexed Notice of Land Claim, has been up in the Office of the Clerk of Peace in and for the District of Newcastle for the space of thirty days to wit from the fifth day of June 1840 until the day of the date hereof. The claim of John Allan west half of no. one sixth con Douro.
Clerk of the Peace Office, this sixth day of July 1840.
T[homas]. Ward
Clerk of the Peace
Take Notice
That John Allan of the township of Douro Yeoman will claim before the Commissioners under the Heirs and Devisees at at their next sittings in July ?? the west half of lot number one in the sixth concession of the said township of Douruo as Devisee of John Fleming deceased, the original nominee of the Crown.
1 June 1840
{NOTE: Illegible annotation written from bottom to top.}
July 15 [?] 1840
Deferred.
Deferred – the testimony of a subscribing witness to the will should be produced.
[signed] J. B. Robinson and Mr. Justice Jones
Minutes Claim No. 52
Take notice that John Allan will claim before the Commissioners under the Heirs and Devisees Act at their sittings in July with the west half of lot number one in the sixth concession of Douro as Devisee of John Fleming deceased the original nominee of the Crown.
Peterborough, 10 March 1842
To The Honourable The Commissioners etc. etc. etc.
Surveyor General’s Office
Kingston 4th July 1842
Reference is respectfully requested to a Certificate from this Office dated 13th July 1840 on the claim of John Allan, the land remaining as then certified.
[signed] Thomas Parke
Surveyor General
Notice
John Allan
received from J. G. Armour Esq.
1st July 1842.
[signed] Wm. H. Lee
Clerk, Commission
5 July 1842
Allowed
[signed] Robert S. Jameson
No. 5 of Mr. Justice Macaulay Minutes.
Printed form
I do hereby certify, that the annexed Notice of Land Claim, has been up in the office of the Clerk of the [illegible] in and for the District of Colborne for the space of one hundred and five days to wit, from the seventh day of March 1842 until the day of the date hereof.
West half of lot number one in the sixth concession of the township of Douro.
Clerk of the Peace Office, this twenty-fourth day of June 1842.
W. H. Wrighton
Clerk of the Peace
July 15, 1841 – Claim deferred
https://heritage.canadiana.ca/view/oocihm.lac_reel_h1152/571
Thursday, 15th July 1841
Commissioners present: The Honourable John Beverly Robinson, Chief Justice, the Honourable Robert S. Jameson, Vice Chancellor, and the Honourable Mr. Justice Jones.
https://heritage.canadiana.ca/view/oocihm.lac_reel_h1152/572
No. of Claim: 68. Name of Claimant, Residence, Addition, etc.: John Allan of the Township of Douro, Yeoman, claims as Devisee of John Fleming, deceased, original nominee. Lot: West half 1 Concession: 6. Town or Township: Douro. Original Nominee: John Fleming. Date and Decision of the Commissioners: Deferred – the testimony of a subscribing witness to the will should be produced.
July 5, 1842 – Claim allowed
https://heritage.canadiana.ca/view/oocihm.lac_reel_h1152/585
Report of the Commissioners appointed to ascertain and determine certain titles to Lands in the Province of Canada by a Commission under the Great Seal of the said Province bearing date the third day of July one thousand eight hundred and fourty one, signed by His Excellency The Right Honourable Charles Baron Syndenham of Sydenham in the County of Kent and of Toronto in Canada, etc. etc. etc., and issued under the authority of an Act of the Legislature of the said Province, passed in the fifth year of the Reign of Her Majesty Queen Victoria entitled “An Act to alter for a limited period the place of sitting of the Heir and Devisee Commission of the Late Province of Upper Canada, and for the purposes therein mentioned,” on claims brought before them the said Commissioners, during their sittings in the Town of Kingston Governor General of British North America, in the said Province of Canada from the Fourth to the Eighteenth of July one thousand eight hundred and fourty two inclusive.
Commissioners Present: The Honourable Robert S. Jameson, Vice Chancellor. The Honourable James B. Macaulay, Judge of the Court of Queen’s Bench, and the Honourable John Henry Dunn, a Member of the Executive Council.
…
No. of Claim: 2. Name of Claimant, Residence, Addition, etc.: John Allan of the Township of Douro, Yeoman, claims as Devisee of John Fleming, deceased. Lot: West half 1 Concession: 6. Town or Township: Douro. Original Nominee: John Fleming. Date and Decision of the Commissioners: Allowed.