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[5-13-1785]

"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
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