Jones-Craven-Statewide County NcArchives Court.....Burgwyn Et Al, Devereaux V. 1840 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Jo Huettl johit@suddenlink.net September 4, 2010, 10:54 pm Source: N C Archives Written: 1840 Devereux v Burgwyn & Others (Sept 1840) NC Supreme Court Case # 2857 Jones County Found at the NC Archives, Raleigh, NC INTRODUCTION TO COURT CASE There are three Supreme Court cases by this name involving the same people and the same legal issue. The other two involve land in Bertie, Northampton, Warren and other counties and are long enough that one of the cases fills an entire box. All three are highly technical and the researcher should study the cases for himself. This particular case can be found in NC Reports, Vol 23. Gov. Thomas Pollock and his wife Elizabeth Sanderson had three sons according to his Will and bio - Thomas, George and Cullen with the latter two dying without issue. Thomas III married Eunice Edwards who was a widow with a daughter Sarah Pierpoint Hunt who md John Fanning Burgwyn. Thomas and Eunice had daughters Elizabeth who never married and Frances who md John Devereux and sons Thomas and George who had no issue. The children of Sarah Pierpoint Hunt and her husband John Fanning Burgwyn were of the half blood to the children of Frances Pollock and her husband John Devereux and instigated a law suit to equally inherit the extensive Pollock estate. This is a brief background for the cases taken to the NC Supreme Court Case. There are Pollock/Devereux Papers at the NC Archives, Duke University and The Southern Historical Collection. This case is of interest in our area because of the connection of the Pollock family to Baron Von Graffenried and his settlement in New Bern and the Griffin School in New Bern. Most important is the fact that the same names found in the Pollock family of Craven/Jones County are found in the family of Gov. Pollock and his father including the name Cullen. NOTE: Although this is an abstract, original spellings have been retained including several different spellings of Pollock. (NOTE: The typist due to the content of the legislature law information found is quite interesting as to the relation of blood and half blood and the way the law read during this time and the inheritance of such. JH) Jones Co. Court Fall Term Sept 1840 Henry K Burgwyn & others by their attorney William H Haywood Jr brought their declaration of ejectment against Roe & Thomas P Devereux. John Doe complained that Richard Roe, in custody whereas Henry K Burgwyn Thomas P Burgwyn John C Burgwyn Cameron F McRae & Julia his wife & Sarah E Burgwyn on Jan 1 1840 at Jones NC demised granted and to farm let to the said John Doe a certain tract of land beginning at fork of Mill Creek and running up to westernmost fork straight to head of easternmost branch down branch to first station - start Dec 1 until full term of ninety-nine years to be completed and ended by John Doe until Richard Roe afterwards. On Jan 1 1840 with force and arms entered into the tenement with John Doe and John Doe from said farm stated term therein not being yet expired, ejected expelled and removed the said John Doe being ejected, expelled and removed, sd Richard Roe hat withheld from him and sill doth withhold the popion and other injuries then and there did to him against the face of the sd and to damage of the said John Doe one hundred pounds wherefore to being - signed WHH jr Plaintiffs Attorney M Thomas P Devereux - stated you are in possession or claim title to the premises mentioned in declaration of ejectment so some part thereof, having no title I advise you /give you notice to appear Sept next at Court House in Trenton before Judge of Superior Court by some attorney and then and there by a rule to cause yourself to be made defendant in my stead and make defense otherwise shall suffer judgment to be against me and you will be turned out of possession. Your loving friend, Signed Richard Roe. Same was returned to court endorsed "I accept service of this declaration and consent to be made a party defendant acknowledging the said lease the entry under it and the ouster by the original defendant - signed TP Devereux Same time defendant by his attorney George L Attmore Esq came to court to defend the force and inquiry of said plaintiffs declaration and plead common rule - not guilty - court continued to March Term AD 1841. March Term 1841 Doe & Henry K Burgwyn & others v Roe & Thomas P Devereux - ejectment Parties have signed the case agreed "This is an action of ejectment brought to trial whether the premises set forth in the declaration descended to the lepors of the Plaintiff in common with Frances Devereux, or whether Frances was seized of them in severalty and upon this question the following statement & facts submitted - George Pollok died in April 1839 seized of land in question to which he succeeded by divide upon the death of his father Thomas Pollok the older under the will of sd Thomas - copy of will part of case - Thomas Pollok the elder succeeded to the land by descent upon the death of his father, the sd Thomas being the oldest son. Thomas Pollok the elder died 1777 leaving two sons - Thomas was deceased - the will mentioned George of whom Thomas was the oldest and a daughter Frances Devereux. Thomas died without issue in 1803 or 1804 - George died without issue leaving Frances the sister of the full blood and of the blood of sd Thomas the elder. Plaintiff are children of Sarah Burgwyn - was a daughter of the widow of Thomas the elder by a marriage subsequent to his death and was a sister of sd George of the half blood - on the part of his mother the sd Sarah died before George and if she had survived the sd George would inherit any of sd land then the Plaintiff has same title. Defendant Thomas Devereux representing Frances is in actual and excessive possession of land and claims to hold same in severity to the right of aforesaid. - if facts the plaintiff has title to premises then judgment is to be entered for Plaintiff - if they have no title then judgment is for defendant - stated either party may appeal judgment without giving surety for the courts - if other facts deemed material, they made be added before final judgment. Adjudged by John L Bailey Judge in favor of plaintiff - they recover premises - defendant appealed to Supreme Court. His excellency William Livingston, Esquire, Governor Captain General and Commander in Chief in and over the State of New Jersey and Territories thereunto belonging, Chancellor and ordinary in the same - Greetings Records remaining in the Registry of the Prerogative Court in the Secretary's office at Burlington, inspected last will and testament of Thomas Pollock recorded in Book No 20 of Wills folio 8 in the words following "viz Will of Thomas Pollok In the name of God amen! I Thomas Pollok of Elizabethtown in New Jersey being weak in body but of sound and disposing mind and memory, blefsed to God therefore do this twenty fifth day of November in the year of our Lord one thousand seven hundred and seventy seven make and publish this my last will and testament in manner following First - I give and devise unto my beloved wife Eunice my dwelling house in which I now live in Elizabethtown with the lands and tenements thereunto adjoining and belonging which I purchased of Cavalier Jouet to hold the same devised premises unto my said wife during her natural life, also I give and bequeath unto my said wife all my household goods and furniture, horses, cattle, carriages and farming utensils in Elizabethtown and one negro wench to be purchased for her by my executors and also five hundred Spanish milled pieces of eight to be paid her yearly and every year during her natural life out of my estate in manner hereafter mentioned and directed all which I devise and bequeath unto my said wife in lieu of and in full satisfaction and has of her dower and thirds of and in the mepuages lands, tenements and hereditaments being and lying in North Carolina and which is hereafter devised to my son George Item From and after the decease of my said wife, I give and devise my said lands and dwelling house in Elizabethtown, which is above given to my wife during her life unto my two daughters, Elizabeth and Frances, their heirs and assigns forever Item I give and bequeath unto my daughter Elizabeth seven thousand five hundred Spanish milled pieces of eight or the full value thereof in gold or silver to be paid her when she shall attain the age of twenty one years or day of marriage, which may first happen Item I give and bequeath unto my daughter Frances seven thousand five hundred Spanish milled pieces of eight or the full value thereof in gold or silver to be paid to her when she shall attain the age of twenty one years or day of marriage which may first happen. Item My will is and I do hereby direct and impower my Executrix and Executors hereinafter named or the survivors or survivor of them, to demise and let out from time to time all and singular my messages, lands, tenements, and real estate, with all or any part of my slaves, stock and farming utensils, lying and being in North Carolina until such time as my son George shall attain the age of twenty one years and that my said executors shall from time to time take and receive the rents, issues and profits thereof and out of such rents issues and profits and from such debts as may be due to me at my decease or which may become due to me on contracts already made pay and discharge all my just debts and also pay unto my said wife the aforesaid annuity or yearly sum of five thousand Spanish milled pieces of eight or the full value thereof in gold or silver above bequeathed to her yearly and every year "during the minority of my said son George and also pay there out all such sums as they find necepary for and towards the maintenances, education and support of my children George Elizabeth and Frances and the over plus and remainder of such debts and direct to be preserved and kept at "interest until my said daughters, or one of them shall attain the age of twenty one years or marriage and to be then applied towards paying the aforesaid legacies unto my said daughters as the same shall become payable Item I give and devise unto my son George Pollok and to his heirs and assigns forever all my lands and tenements and hereitaments that I have and hold in fee simple in North Carolina, be paying unto my said wife the aforesaid annuity or yearly sum of five hundred Spanish milled pieces of eight from his attaining the age of twenty one years during the natural life of my said wife Item I give, devise and bequeath unto my sons Thomas and George to be equally divided between them, all my slaves, stock and personal estate in North Carolina, with the increase there of to be divided and delivered unto them, when my said son George shall attain his age of twenty one years, provided nevertheleps, that my will is and I do order and direct that before my dividend be made of my said stock, slaves and personal estates, as aforesaid there shall be first raised thereunto my Executors, all such sum and sums of money as may be wanted to make up and complete the legacies or sums of money hereinbefore bequeathed unto my said daughters, so that such my bequest be paid as my said daughters severally attain the age of twenty one years or marry. Item My will is and I do hereby order and entreat my Executors and the survivors of them to take care of my son Thomas' estate, which will descend to him in North Carolina at my decease and which I now hold in tail, and rent out the same for his use and benefit until he shall attain the age of fourteen years or choose a guardian, and that he shall be maintained, supported and educated out of the rents, issues and profits thereof. Item My will is that my negro wench called Cuyler, be sent to, and received as part of my estate in North Carolina and I do hereby nominate and appoint my wife Eunice, Executrix, and my trusty friend John Blanchard of Elizabethtown in New Jersey and Christopher Neal, of North Carolina, Executors of this my last will and testament, hereby revoking all former will or wills by me heretofore made. In witnef whereof I have here unto set my hand and seal the day and year first above written. (sealed and signed) Thos Pollock Signed sealed published and declared by the above named Thomas Pollock as and for his last will and testament, in the presence of us who have hereunto subscribed our names as writnefes thereunto in the presence of the testator and in the presence of each other. (signed) Joseph Tooker, Ellit Crissey, John de' Hart 10 Feb 1841 - James G Stanley Clerk of Court - certify will is a true copy of Thomas Pollock deceased rendered in Book of Wills letter A folios 275-276-277 and 278. Findings. - (this is stating of legislative law of half Blood, etc JH) By acts of 1784 & 1785 it is plain that the legislature said in conformity of a republican form of government, to divide the inheritance amongst all the children - Further Act of 1784 was to admit the half blood to the inheritance in ordain cases. - Common law in all cases excluded the half blood- could not be supported upon any other, than federal principals, and where the half blood was of the blood of the purchasing - does not seem to be well sustained by those principles - Unfortunately the legislative direction was so obscurely by the acts, that their was much difficulty in ascertaining whether the indeavion was to acessiors the half blood in all cases or only in these in which it was of this blood of the acquiring master. Court after hesitation and conflicting discussion ultimately inclined to the former opinion - however - the interpretation the meaning of the legislation was misconceived a contrary opinion is sustained to a considerable extend by the words of the act Term "actual" purchasers it is believed the legislation - used for valuable conservations - in contractions from technical purchasers, in as much as appropriating that meaning is this word "actual" it can have no meaning at all. It is admitted that no reason can be made to excluding the half blood, when of the blood of the acquiring ancestor, it must be further admitted that no reason can be apisned for admitting it when not of that blood. Further to be found in the fact, that so soon as this was ascertained to be the affect of the law, the legislation attained the rule of descent. Certain that the court by legislative, or that the legislation is very early became dipatisfied with its enactments. In obedience to the principle that the half blood is entitled to share in the inheritance, whereas of the blood of the ancestor & is not entitled to any part thereof, when not of that blood, the act of 1808 was proper - admits it is the first case so exclusively if in the latter. To protect the blood of the acquiring ancestor, the act provided against the effect of technical purchases and gave to grantors estate, whether by deed or by devise - consideration of blood might be considered the moving cause by giving to such purchases the actually estate. Reports which are thirds entitled to all the might of a preamble to the act, declares to be the object of the 4th Cannon - whether this shall carry into effect the whole intention f the legislation or but a small portion of it will depend much upon the construction which shall give to it in this case. If the term being as word used in the 4th Cannon is understood to point out a clap of persons answering that description at that time more than twenty paps, the whole intention of the legislature will have been effected but if the turn is understood to refer to a person which the estate vested, the intention will most cases be frustrated. The heir is not necessarily the person who answers the disciplines at the death of the ancestor but is more properly the person who answers that description whomsoever it "becomes necessary to ascertain is whom an estate may descend. If in 1808 & where the act was under investigation, an engiving had been made for the heirs of Thos Pollok if be doubted that George Pollock would have been designated as a person assessing that description tho he did not consume to it at the death of Tho Pollok. Had an estate been at that time granted to the heirs of Thos Pollok it is certain that George would have taken under the grants. The case of Exum in Davie - heir may be called into existence by Act of apsembly, after the death of the ancestor. No in claimer can be found in which the term being when was used in act is legal instrument, to any other know the clap of persons designated by his heir then existing cause. - Legislation was used during that term intended to point out a clap of persons long before that time known to be included within this form. For these reasons, we think- authorized to content that the legislature by the use of the term "heir or one of the heirs" meant to point out a clap of persons - that description by them existing laws of the State. This interpretation we think derives great force from the carrying out this "declared intention of the legislation if to these appropriate any other meaning. It is contended for this plf that the person advanced much more the description of heir at the vesting of the estate. This construction will in most cases the whole object of the 4th can. Before the Act of 1784 there was much stronger inducement to make by gifts or otherwise upon younger c children. I have since the only way by which younger children in the future. Few cases have been brought under investigation only proves that the concernments circumstances raise the question but have not yet. By confirming the meaning of the word "heirs" is the time the estate vested it is manifested that settlement to younger children provision to the Act of 1784, will be excluded from the operation of the 4th con. It is surely unassonable to suppose that the legislation overlooked this large clap of cases or intended to adopt our law for cases before and cases arising after that act, yet such is the consequences of the construction contended for by Plf. Not only will all these cases be excluded from the operation of the 4th can but the construction which cannot seek to its legitimate consequences will be found to had to most extraordinary results. A few cases by way of illustration will then show that this construction be with the leading object of the act. A. having no son makes a gift to his nephew & heir before 1784. This estate by the construction both by plf & dft will be reshaped in its discount to the blood of the donor. If we suppose A afterwards to have two sons, to make a settlement upon the younger, the estate thus settled will be gifts construction be excluded from the operation of the 4th can & heirs a settlement by a father upon a son will be a settlement upon a stranger, and settlement by remote relative will be protected by the 4th can and can descend to none but the blood of the settling ancestor. Precisely the same results will follow suppose the elder son is after the settlement leaving the father in which cases it will turn out in fact that a settlement made by a father upon the only person who is his heir, at his death, is not included in that case. But must be a trustee as a contract between strangers. If we examine the construction upon devised estate the consequences will be made to suppose A B & C to have each no sons & one daughter on the same day to make this several ways, and to divided their estate amongst several children. A before 1784 B after 1784 and C after 1795. According to Plf construction the portion devised by A to his elder son is restrained to the blood of the devisor and if the younger son & daughters are not. The shares devised by B is his two sons will be thus withstood, that to the daughter not but all that was devised by C will be 1 heir mentioned; thus making the disclaimed quality of the estate to depend upon the contingency of the devisors death & not upon the Act of 1808, making these several estates created by instruments of the same kind at the same time. If we support the legislation intended to make the described quality of the estate to depend on the time at which the devisor died, we shall be constrained to admit that it precisely the several of what its official report declared viz that it did not intend to preserve the estate as to family of acquiring ancestor - we don't understand plfs counsel to contend that their construction will carry out the declared of the legislation but that the words of the 4th can admit no other construction. The inconveniences & almost frustration of the agestative will which must result from their constricted - we think a strong agreement if ours were not will literal and accurate. We shall our construction is not only consent ended with this term spirit if the act, but also is alike true to the letter. It is admitted by plfs counsel that after the words the heirs as one of the heirs in the 4th can we must understand the following words "according to the law of North Carolina". The necepity of supplying these words is as plain to admit of contractition or devisor ay additional forces from the admipion made by our opponents. The fourth cannon where these implied words are supplied will read as follows: viz On failure of defendants and the inheritance has been assertive by an ancestor, are has been devoid by gift, divided or settlement from one ancestor is whom the person thus advanced, made, in the event of such ancestors death hath been the heir as one of the heirs (according to the law of North Carolina (the inheritance shall descend to the next collateral of the person last devised who were of the blood of such ancestors subject to the preceeding rules. What then is the natural meaning "of the words"? can they be supposed to refer to any other than the these present time? To make good the construction for which Plf contends to the words already supported must be added these words "at the vesting of the estate" To us it seems no authority can be found for such addition. The words "according to the law of North Carolina 4 viz & cannot without violence be tortured to point to any other than the terms these presents & the law then existing - but it is submittive that mere literal or grammatical consideration is intended to little might when the testators of the law make is ascertained. In that respect happily or cannot be mistaken. The Act of 1808 is perfectly clear in itself & consistence with the declared intention of the law makers as Act forth in its official supports. The legal examination is not compelled to grape his way though long and ambiguous instances, It is hoped & believed that the court will not hesitate between a construction such will secure the whole object of the Act and one which will depict the object in a large majority of cases within the scope of its provisions. Friday Dec 2 1808 Journal of the House of Commons Mr. Easton from the committee who were directed to inquire into the explaining of amending the law of descents, reported - they find the various acts that have been paped to regulate course of descents are replete with ambiguities - difficult to understand true meaning of Legislature. Whether designed retain a preference in favor of relations of the blood of purchasing ancestor, whether kindred on part of father were to have a prior claim to those of mother - whether prevision in favour of one half blood over the other did not apply to the whole blood - whether abilities of distinction between males and females was confined to individuals or extended to stock - whether the provisions in favour of parents comprehended the case of lands inherited by the in testate - all questions - most intelligent may differ - must reason the most extensive litigation. Committee conceived the law of descents is importance and universal -anxious to discover the ambiguity in the existing law has arisen from Legislature having undertaken to define cases which might occur -endeavored to make provision for each instead of establishing certain plain and general principles that might be susceptible of application in every instance. Committee strongly impreped with this belief - conceived their duty to frame rules embracing such principles and making these rules to be studious to conform as nearly as might be to the Spirit of the existing law - The three first rules it will be perceived, don't introduce any innovation in those which now prevail - unnepary were it not for advanted which is derived from bringing together all the rules upon the subject - Fourth rule principal object the securing to the family of the man by whose industry the property was required - enjoyment of such property in preference to those who have no acquaintances with him - Fifth rule designed to embrace cases which in testate was himself the first purchaser and reason dictates that his nearest relations should succeed to his estate - whether on side of his father or mother - Sixth rule simple affirmation of principles now existing - provisions founded upon that sentiment of natural affection which has resided the sanction of the Legislature in the two acts of 1784. Committee deemed it advisable to avoid all uncertainty that provision should embrace every case where collateral kindred are more remote than the ipue of brother and sister and to prevent inconvenience which might result from interrupting general course of descents - proposed the provision should be for life only Committee recommend that the bill accompanying the report entitles & bill to regulate descents be put on its papage and enacted into a law - State of NC Secretary's office - Will Hill Secretary of State in the State of North Carolina certify true and correct copy of entry on the journal of the General Apembly of state. Part of rendering of court Under will of Thomas Pollock the elder had there been no statutory alterations of the law of descent since his death - clear estate would continue in his family - Act of 1784 by construction would carry the estate out of that family but equally clear that Act of 1808 sought to alter it. Clear that Thomas Pollok the elder never made a will the estate would now be carried to his family exclusively - from the principals it is clear only thing that occurred since 1777 is to give the lepors of this plaintiff a title in the act of 1784 - an act which was disagreeable to legislature, which they sought to alter, 24 years after its passage they did alter most materially should 55 years after passage be found affecting materially and in point sought to be altered a descent. Leads me to consider the evil existing under act of 1784 - primarily a violation of principle that has existed wherever the feudal law has had obligation which would preserve the acquisition of an ancestor to his descendants and exclude from them all who were not of his blood; suffering it to return to the sovereign rather than to leave his blood; by the act of legislature sought to correct the latter part of rule and to prefer the half blood to an escheats - further sought to admit the half blood to an equal participation with full in all cases of purchases - gifts in consideration of blood were not intended to be include is inferred from language of second act of 1784 - construction that these acts more favorable to the half blood than the legislature intended at making the estate divisible between the bloods when it came by descent from the full blood - by taking the half blood when the estate was in strictness of law a purchase - thought purchase may have been a mere donation - intentioned to anticipate the descent of the estate by the death of the donor. These are the evils connected with the act which it is necepary now to state - to remedy and supply a certain general rule for all cases of future descents, the act of 1808 was passed - obvious that draftsman were perfectly well acquainted with his duty - obvious that he understood the cannons of descent at common law - what did he mean by 4th cannon "heir or one of the heirs? - did he mean the "heir or one of the heirs" according to the rule which prevailed between 1784 & 1795 or that which prevailed between 1795 and 1808 or that which prevailed prior to 1784 - submitted that he could not mean that which prevailed prior to 1784 because he used the word in the plural - common law there is but one heir and it was bad pleading even in the case of over A to be one of the daughters of B - submitted that he would not mean the period which intervened between 1784 & 1795 because the exprep object of the cannon was the securing to the family of the man by whose industry the property was acquired the enjoyment of such property in preference to those who have no consanguinity with him - refer to provision by will to daughter - defeat expressed object - not intended to refer to a period prior to 1784 because it would without any reason step over that between 1784 & 1795 and it would secure lep of a voluntary provision to the family of the donor than if confined to the latter period. Had legislature been asked "do you intend to make a difference between a second son advanced in 1786 and one advanced in 1784 - reply would be "unquestionably we do not, we intend to secure the land to the descendants of him by whose industry it was acquired and we know no difference between the natural affection of a parent at those periods - would have to be necepary to put child or children - but against the reply would have been "a child is now an heir and the term would be surplusage - we intend a larger and more beneficial provision for the full blood, that they shall take exclusively upon a gift by an uncle and to include the nieces, nephews and more remote collaterals we use the word "heirs or one of the heirs" - means when estate has been settled by donation in such a way as it would have descended it shall be estimated as to is descendible qualities to a descend estate. Words in Act of 1808 "has been transmitted by descendant" - "has been derived by gift" - both are past tense and both receive same construction - cannot contend that they were to apply to estates theretofore descended or transmitted because if they do then this absurdity will result that as to all estates thereafter to descend or be transmitted there would be no general law of descents - the words "have been the heir or one of the heirs " - also in past tense - receive same - construction must apply to cases thereafter to happen - this construction in words necessary to be supplied are words in the future tense, either the word "now" or the words "hereafter may be " so as to make the sentence read "when an estate has been or hereafter may be transmitted by descent from an ancestor or has been or hereafter may be derived by gift from an ancestor to whom the person thus advanced would be now or hereafter may be an heir or one of the heirs then "by the interpretation of the words in the future tense meaning is plain and consistent and uniform rule is obtained. By will or settlement in 1783 divided his land equally between his two sons and died immediately, the sons live until 1809 and then die without issue, half the land would go to their sister of the full blood exclusively and the other half would be divided between her and a sister of the half blood - suppose same case except second son should die in 1785 then his land would have descended to his elder brother and upon his death in 1809 the whole would go to a sister of the full blood. Suppose A to have sons alone, B daughters alone and C sons and daughters and all to have made their will dividing their land between their children then upon the death of one of B's daughters after 1808 her land would go exclusively to the full blood, the same would be the case as to the land of the eldest sons of A & C but in all other cases the half blood would inherit equally with the full. Suppose A devised in 1783 to his sons and died 1785 an uncle B made exactly the same will - land of the father would be carried out of family while that of the uncle would be preserved in it. - this actually will have happened if the plaintiff be correct for in 1795 Cullen Pollok the younger brother of Thomas the elder, died without issue leaving his will all his fee simple lands to the late George Pollock and as he though permitting his lands to descent, the land of Cullen Pollock is suppose beyond dispute. 1783 conveyed the land to his two sons in fee in that year the oldest died without issue and in 1784 the father died it is obvious that the second son succeeds to the first and the moiety thus descended would upon his death without issue in 1809 go to the full blood. - how would the moiety he took under the settlement go? - at the time of conveyance he was not - if the construction contended by the plaintiff prevails "an heir or one of the heirs" and if so it would go to the half blood but at the death of the father he was the heir and it is supposed the land would go exclusively to the full blood - if so character of the land is fixed and ascertained by the death of one who never had the least shadow of title to it. If a parent having a family of sons and daughters had devised his land equally to be divided between them, if he died before 1784 the land of his eldest son would go exclusively to the full blood and all the rest would be divided between the full and the half blood - if he died between 1784 & 1795 the same result would follow as to the land which all the sons took and that which all the daughters took if he died after 1795 then all the land would go exclusively to the full blood. Case is believed to have existed as to a part of the land in question - Thomas Pollok the elder had a reversion in part of it; the estate which the reversion would fall in was created by his father or grandfather - it fell in about the year 1820. Illustration - late George Pollok always contended the legislature had the arrangement of the lands of the Tuscarora Indians taken 1280 acres of land which in fact belonged to his father - the land granted to make it have been strictly within the act of 1808 and confined to the whole blood - then part of the land George Pollok gets from his father, the residence of that father, goes to the half blood but a mere right goes to the full blood exclusively. The existence of similar cases and their having been permitted to pass without question has always been held to be a strong argument against a claim when afterwards presented, a decision adverse to them would open many lawsuits and much has ever been conceded to the well settled opinion of the profession - Act of 1808 passed 24 years after Act of 1784 and 13 years later Act of 1795 - being 1839 is not too late to raise questions - there must have been questions under these acts but find no record - only case was one in 1806 to one who was then an heir and was overruled by the court (Felton v Billups(-(NOTE: additional examples but with same results) Facts were submitted with some unkindnep and question never would have arisen had it not been for the value of the land in controversy - great injustice to defendant as he admitted that he valued the residence of his grandfather - simply because it was his residence and he is not insensible to the "pride" of belonging to a family who had the sagacity to acquire this land as early as 1708 and has had the prudence to retain it for 131 years and especially while heirs ready to admit that he does not value it the lep in consequence of its being worth a large sum of money - he is in justice to himself bound to say that he values the law of truth and justice - if not given to him he would surrender it completely - ON death of proposition the lessors of the plaintiff took counsel as t the descent of this real estate - question was made as to another portion of his land - the possession of the premises in dispute was taken by the defendant and yielded by the lepors upon the mutual conviction that it was his right - a lessors prepped the defendant to sell he refused and finally a lease was taken of part of them 14 months after the death of Mr. Pollok this claim was first intimated to him - former habits and association of defendants had brought him into intimacies with many of the profession and he asserts without fear of contradiction that he has hear of but one disinterested member of it - facts of case not being disparted in the circuit - enabled the question of law to be freely canvassed with the judges For defendant it is contended that the act of 1808 and Act of 1836 only sources which the court now can derive any knowledge of rules of descent in this state - legislature sought to establish consistent uniform rule that would affect all descents thereafter to be cast that the only difference sought to be made as to the persons who should succeed was as to their connection with an acquiring ancestor that these questions should be solved as of the time when the person last seized died and the descent was cast - when an estate had been suffered to descend or had been so settled that it must necessarily have descended by law as then constituted. By adopting this construction can the court get rid of the mass litigation which Act 1784 occasioned - this construction can the principle the legislature expressly declared thy intended to preserve inviolate be thus preserved - preservation to a dead man's descendants of that portion of his estate which he choose to invest in land as long as any such descendants existed - construction contended for other side does not even stick to the letter while it grossly violates the spirit of law - this case carries the land of the paternal grandfather of the proposition from his only surviving descendant in her generation and vests it in those who absolute strangers to his blood - signed T Devereux File at: http://files.usgwarchives.net/nc/jones/court/burgwyne1605wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 38.7 Kb