5

for sale is not confined to his real property, but is a devise of his Plantations
Negroes and Estate of what kind or nature soever in North Carolina. Whom he
declares the Trust of the Devise he directs that the Trustees shall [illegible] of his said
Estate both real and personal. He directs the Sale to be as soon as convenientlly can
be after his Death, and in the Clause by which he appoints Collet his Executor
in North Carolina of all his affairs know he describes him as authorized to act & so
dispose and sell every part and parcell thereof. From these Circumstances it is evident
that the Testator intended his real & personal property in Carolina to be one fund
to answer the Disposition he had in view. He intended that at all Events the whole
should be [illegible] into money, & was anxious that every part & parcell thereof shd.
be sold by Collet. Whom this first [Invation??] of his shod. be accomplished the money
arising by the sale of the whole property of both kinds wod. become one undistinguished
mass of money which is personal property. Of this Fund he had a view to dispose
by some writing or writings to be afterwards [??resolved] by him either in the whole
or in part and therefore directs the money to arise from such Sale to be applied as
he should by writing direct. But in as much as he might or might not dispose of
the whole by such writing, he therefore added immediately a residuary Clause, not
meaning to die intestate as to any part of his property, which residuary Clause is a
Disposition of his personal Estate whatsoever and whomsoever which obviously includes
in the Description that residue of the general fund of money which should be in
Collets hand, and shod. be undisposed of by a subsequent writing. and as no
such subsequent writing was made the whole falls within the Description. This appears
to me to be the plain understanding of the Testators Interest and that the whole fund
if a sale had been made wod. belong to the Testators Widow - As she had the absolute
right to the money arising from the sale it was in her option whether the sale shod.
take place or not. It appears that she elected that no Sale shod. be made in her
Life time by her entering upon & enjoying the Plantation as long as she lived.
If so much of the Fund as was real property descendible to the heir had descended as
a resulting Trust the Widow was a wrongfull possessor of the real Estate from the
Time of the Death of her husband in 1749 and from the Time when her eldest son attained
21, the Statute of Limitations [??was] agst. him & would have barred him if he had had a
legal Title and I think a Court of Equity after a quiet possession in his Widow without
Interruption either by the Trustees or the son from 1749 to 1784 when she died being
35 years wod. hardly have established a Trust upon a doubtfull case. I therefore
think that the Widow is to be considered as Owner of the Carolina Estate from 1749
to 1784 when she died and that her Son cannot claim any otherwise than under her
Will.