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In the Name of God Amen I Nathaniel Dukinfield of Utkinton in the County of Chester Esquire being of sound mind and memory but in a very infirm state of health or rather an almost cessation of Health waiting for a comfortable dismission from my afflicted painfull body and from all the Sorrows Troubles and Evils I have been subject to in this Transitory Vain Life But that I may leave nothing undone that ought to be done that my mind may be free from all earthly incumbrances I do make publish and declare this to be my last will and Testament in manner and form following — Imprimis I give devise and bequeath all my Messuages Lands Tenements Hereditaments and Premises with their and every of their Appurtenances that I am now seized or possessed of situate lying and being in the County of Chester unto my dear Wife Margaret Dukinfield To Hold to her and the Heirs of her Body by me begotten (that is to say) my Will is that my dear Wife Margaret shall possess enjoy receive and take the Rents Issues and Profits of all the said Messuages Lands and Tenements for and during the Term of her Natural Life if she shall so long continue my Widow unmarried and if it should so happen that she should have no child living by me begotten and she continues my Widow during the Term of her natural Life Then my will is and I do hereby give to my said ^dear^ Wife Margaret full power to make a Will and to devise bequeath and to give by virtue of such Will the full Sum of Three Hundred pounds Sterling Money of Great Britain to such of her own Relation or Relations nearest in Blood as she may think fit or that she may think most deserving of her Favours the said Sum to be raised out of the Rents Issues and profits arising from my Messuages Lands and Tenements aforesaid But if my dear Wife Margaret shall Marry again Then I give and devise all my Messuages Lands Tenements Hereditaments and Premises with their Appurtenances in the county of Chester aforesaid unto my Brother John Chorley and my Nephew Samuel Dukinfield son of the late John Dukinfield of Bristol Esquire and their Heirs To Hold to them and their Heirs upon the several Trusts hereinafter mentioned (that is to say) upon Trust from and after such Marriage and not otherwise to pay her One third only of the said Rents Issues and Profits arising from my said Messuages Lands and Tenements for and during the Term of her natural Life And to apply the remaining two thirds of the said Rents Issues and Profits or so much thereof as my said Trustees in their - - - discretion shall think reasonable for the maintenance and education of such of my Children or Child by my said Wife as shall be living at such Marriage and if there shall be any such Children or Child living at her death Then upon Trust my said Trustees shall apply the whole Rents Issues and Profits of the said Premises or so much thereof as they shall think reasonable for the maintenance and education of such Children or Child until the eldest of such Children or only Child shall attain his or her Age of twenty one Years and from and after his or her attaining such Age Upon Trust that my said Trustees and their Heirs shall as soon as conveniently may be make a proper division of equal - proportion and of equal Value of the said premises according to the number of such Children then living the whole in equal Share and parts to be divided and given to them the necessary Expences and Charges the said Trustees may be at in making such division to be first paid to them But if there shall happen to be but one such Child then my Will is that my said Trustees shall convey the said premises unto such only Child on his or her attaining such Age as aforesaid his or her Heirs or Assigns for ever But if there should be no such Child or Children living by me begotten on the body of my said Wife and she shall Marry again I will that my said Trustees shall receive and take two Thirds of the said Rents Issues and Profits of the same Premises unto them the said John Chorley and Samuel Dukinfield equally between them and pay the remaining one third unto my said Wife for and during the Term of her natural Life And from and after her decease I give and devise my said Messuages Lands and Tenements unto my Nephew John Chorley son of my Sister Jane Chorley to him and to his Heirs lawfully begotten he paying to my said Nephew Samuel Dukinfield one third only of the Rents Issues and profits of the said premises until such time that my said Nephew Samuel Dukinfield should obtain such as Support by his profession in the Law as may raise him above the misfortune of necessity or should come into profession of the Hereditary Title and Estate successive in the Dukinfield Family or by any other means should obtain the comfortable supports of Life and no longer.
// I give and devise unto my worthy Friend Mr. Joseph Collett all my Plantations Negroes and Estate of what kind or nature soever situate in North Carolina in
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America Upon Trust that is to say my will and desire is that the said Mr Collett would not refuse taking upon him this last request from me That as soon as conveniently he would sell and dispose of the said Estate both real and personal to such persons or person at and for such Quote or Price as he can best obtain and do and shall apply the purchase money to arise from such Sale thereof as I by any writing Signed and Sealed by me in the presence of one or more credible witness shall direct or appoint. I give and devise to my said dear Wife Margaret all my Leasehold Estate in Ludgate Street London and also all the rest and residue of my personal Estate whatsoever and wheresoever Finally I constitute and appoint my said dear Wife as long as she continues my Widow unmarried my Executrix But in case of Marriage I constitute and appoint my brother John Chorley and my nephew Samuel Dukinfield aforesaid my Executors of this my Will and I do hereby enjoin them to be as Assistant and as serviceable to her as they possibly can to act and to do upon her request with as much sincerity faithfulness and cheerfulness in all things in the best and most comfortable manner for her well being in Life as if I had particularly nominated them to be joint Executors with her during her continuance my Widow unmarried I constitute and appoint my dear Friend Mr Joseph Collett my Executor of all my affairs in North Carolina to act and do Dispose and Sell every part and parcel thereof in the best manner he can And this Trust I know he is best qualified for But if my Brother John Chorley and my nephew Samuel Dukinfield should not behave with that relative affection and regard that is suitable and due to her as being my Wife or should refuse to act for her in the best manner they can or jointly with her whenever she either desires or requires such assistance Then in this or any such case I will empower and authorize my said Dear Wife Margaret to make her will and to devise and give every of the premises aforesaid unto such of my relations nearest in Blood as shall behave with a much superior degree of Sincere Affection and respect suitable to the near Relation she stands in to them by being my Wife than they have really shown to her in my Life time But if such respect and Esteem be not fully given to her Then my will is that my said Dear Wife shall devise bequeath and give by her Will all the said premises to anyof her own Relations nearest in Blood that may best deserve such favour from her provided she continues my Widow unmarried during her natural Life I kow no reason to subject a dear and good Wife to the Insults and precarious Humours of Relations I will that my dear wife shall bury me in the same Grave where my dear Family lies in Bunhill Burying Ground London with the least pomp or shew which to me is a strange and absurd vanity to carry death's Victories over Mortals in Triumph to the Grave my Desire is to be buried with as much privacy as consists with Decency and when please God my dear Wife departs this Life it is my desire that she should be Buried in my Grave - If any one should pretend to dispute this my last Will and Testament in order to give uneasy disturbances to my dear wife in my real intention of preventing such a vile wicked practice after my death I require and charge my Executors aforenamed if they continue faithfull assistance to my dear Wife and if otherwise I desire my Friend Mr. Joseph Collett would lay this my last will and Testament before The Right Honourable Lord High Chancellor who will determine it agreeable to my sincere intention which is the plenary comfort and welfare of my dear wife and that she may possess all that I have given her without the least Molestation I have not studied Law phrases but have used Words without quite suitable to the simplicity and integrity of my own mind and with intire approbation of my own reason and consideration of things I revoke and make void all former Wills by me made And I hereunto set my hand and Seal to each side of this paper wherein this my last Will is contained written with my own hand this fourth day of July in the twentieth Year of our most Rightfull Sovereign Lord George the Second King of Great Britain France and Ireland &c. and Glorious Defender of the Faith and the Liberties of Europe Annog Dom 1746.
N Dukinfield {Seal} Signed Sealed Published and declared by the said Nathaniel Dukinfield } the Testator and for his last Will and Testament in the presence of us who - } subscribed our Names as Witnesses hereto in the presence of the Testator -- }
William Prior Joseph Collett Dorothy Potts 2.
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Case. The Testator died in 1749 without revoking or altering his Will or having signed or sealed any writing directing the application of the Money to arise by Sale of the Plantations Negroes &c. leaving the said Margaret Dukinfield his widow and two sons Nathaniel and Robert him Surviving, but Robert died in the year 1782 a Bachelor.
The Testators widow Margaret Dukinfield proved the will and since married a second Husband John Pearson who died in the year 1775. The other Executors are both since dead without having taken upon themselves the Execution of the Will.
Mr. Collett thinking he had no power under the will has never acted under the Trusts thereof.
The Testators widow went to Carolina in 1755 and on her arrival there in consequence of Mr. Collett's refusal to act, administered to the will and has resided on the Plantation and received the Rents and Profits thereof to the time of her decease.
The eldest son Nathaniel now Sir Nathaniel Dukinfield Baronet went to North Carolina and resided two years with his Mother upon the Estate and in 1772 returned to England and purchased a Commission in the British Dragoons and served therein during all the War And by an Act of Assembly of North Carolina All persons mentioned therein by name were ordered to attend on a particular day and in default thereof their Estates were confiscated and Sir Nathaniel Dukinfield being one of the persons included by name in such Act of Assembly and not having appeared this Estate in North Carolina was under the said Act Confiscated upon the presumption that it descended to Sir Nathaniel as Heir at Law to the Testator ^or that the devise was a resulting Trust in his favour^ but no Sale of the Estate has been made and Mrs. Pearson was permitted and suffered quietly to enjoy the same to the time of her decease which happened in December last.
Previous to the said Mrs. Pearson's decease namely on the 21st of December she made her will duly executed and attested in manner following-
"Know all men by these presents that I Margaret Pearson of Dukinfield in the State of North Carolina "Widow do make my last Will and Testament in manner and form following viz? I devise my Plantation "called Dukinfield and all other Lands I am entitled to in this State and all my Estate and Interest in such "Plantation and other Lands whether at Law or in equity to Cullen Pollok and Samuel Johnston Esquires "their Heirs and Assigns for ever upon the Trusts herein after mentioned. I do also bequeath to the said Cullen "Pollok and Samuel Johnston all my Negroes, and all other my personal property (except what is hereafter "bequeathed) and all my Estate and Interest in such whether at Law or in equity upon the Trusts hereinafter "mentioned. The Trusts upon which I have devised and bequeathed the abovementioned Estate both Real and "personal are as follow (to wit) That the said Cullen Pollok and Samuel Johnston shall as soon as conveniently "can be done sell and dispose of the said Estate both real and personal and out of the proceeds of the "same that the said Samuel Johnston shall receive the Sum of Three Hundred pounds Sterling Money, which "I request him to accept of as a Legacy from me, and that the said Cullen Pollok and Samuel Johnston, "shall pay the remaining Sum arising from the said Sale to my dear Son Sir Nathaniel Dukinfield "Baronet to be his absolutely and for ever, and in Case of his decease in my Life time to paid to his Executors "or Administrators my said Trustees being intended to take the above Estate merely in Trust and not to "take a beneficial Interest for themselves other than as above. I bequeath to my Grandson Samuel George "Dukinfield the Legacy left me by my dear son Robert Dukinfield deceased. I request my Friend Mrs. Tredell wife of Mr. James Tredell Attorney at Law to accept of my Watch which I have usually worn as a token of
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"my regard for her. Lastly I constitute and appoint the said Cullen Pollok and Samuel Johnson "Executors of this my Will. In witness whereof I have hereunto signed my Name the twenty first day of "December in the Year of our Lord 1784.
The State of North Carolina has by an Act lately passed ordered all the remaining confiscated property to be sold and this Estate being included within that description will be sold unless the Trustees under Mrs. Pearson's Will can establish her Title to the same And it being apprehended by them that by the many expressions of affection Nathaniel Dukinfield the Testator made use of in the Will for the late Mrs. Pearson there is every reason to conclude that if such writing mentioned in his will had been executed by him the Appointment would have been in favour of her And that by the residency Clause in the same Will Mrs. Pearson became intitled in equity to the money arising by Sale of the same Plantations ^And also to the^Negroes and other personal Estate found found thereon. And that she had a power to devise the same as aforesaid uninterrupted by any claims of Sir Nathaniel Dukinfield or his ^late^ Brother Robert.
Your Opinion is desired whether for want of such an Instrument in writing as referred to be Nathaniel Dukinfield the Testator the Trust of the Real Estate in North Carolina resulted to Sir Nathaniel Dukinfield as Heir at Law to the Testator and of course is forfeited by the Act of Assembly in North Carolina the Plantations having been by Sir Nathaniel Dukinfield default of not appearing at the time prescribed by the said Act confiscated? Or by the express direction of the Testator to sell the same it is to be deemed in Equity as a personal Estate and go under the strong general residuary Clause to Mrs. Pearson. And whether the Trustees can prevent a Sale of the said Estate under the Act of Assembly by prosecuting their claim to the same under the Devise in her Will or what other Steps would you advise the Trustees to take to prevent the Sale of the Estate?
In the Case of Mallabar v. Mallabar in Cases in the Times of Lord Talbot page 78. the Testator ^(devised) his real Estate to a Trustee in Trust to be sold as soon as convenientally could be after his Death and out of the money Insolved all his Debts to be paid and after paymts. of his Debts he gave out of the remainder of the money several pecuniary Legacy & so several persons named in his will and after his Debts & Legacys paid as aforesaid &c subject to the same he bequeathed all the rest and residue of his personal Estate to his sister Esther Maleabar who he appointed sole Executrix. And Ld. Tabot held upon the will itself that the Executrix shod. have the whole residence after the sale of the Estate both of the money arising by such sale and of the personal Estate. This Case proving that where a Testator has directed his real Estate to be sold the money arising by the Sale will pass under the Description of his personal Estate provided it appears from Circumstances in the will that the Testator intended the money arising by the sale to pass under that Description though it is an improper Description. And I think that in the present Case show our circumstances in the Will which shew the Intention of the Testator to be that the money to arise from the Sale of his Lands in Carolina shod. pass to his wife under the Description of the Residue of his personal Estate. For in this Case the Devise to the Trustees 4.
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.