IN THE CASE OF MICHAEL FURBEE’S LAND, 3 Del. Cas. 4 (1822)

Ridgely’s Notebook IV, 7

Court of Chancery of Delaware, Kent County. In Vacation.
April, 1822.

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The following case was stated for the decision of the Chancellor, and a speedy determination being deemed necessary, it was submitted in Vacation by John Van Gesel, who married Priscilla Furbee, one of the daughters of said Michael Furbee. He, John Van Gesel, represented tha Henry M. Ridgely is his counsel. Mr. Hall, who stated the case, is, I apprehend, the standing counsel of Messrs. Price and Pleasonton, the administrators of Richard Harrington, late sheriff, in whose hands it seems the money is from which John Van Gesel expects his claim will be satisfied, if he and his wife shall be considered entitled to receive, under the proceeding on the recognizance, a sixth part of the appraised value of the land instead of a fifth.

The case is copied just as it was presented to the Chancellor:

February 23, 1815. Elias Shockley, as assignee of Jonathan Furbee, eldest son of Michael Furbee, deceased, who died intestate, accepted under the order of the Orphans’ Court the real estate of the said Michael Furbee; and upon the acceptance, the said Elias Shockley entered into a recognizance in $5760 conditioned to pay the other heirs and legal representatives of the said Michael Furbee their respective shares of the appraised value of said real estate, amounting to $2880, on or before the first day of February, 1817, with lawful interest.
The said Michael Furbee had left six children, namely, Jonathan, Mary, Nancy, Priscilla, Sally Ann and Elizabeth.
March 7, 1815. Mary, one of these children, having died intestate, administration on her estate was duly granted to Molton Rickards, who gave bond with William Lewis his surety, etc.
February 22, 1816. Elias Shockley was in the Orphans’ Court duly appointed guardian of Priscilla, Elizabeth, and Sally Ann, three of the above named children, respectively, and in each case gave bond with Molton C. Rickards his surety in $3000.

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May 27, 1817. Molton Rickards passed before John Clarke, Register, an account of his administration as administrator of Mary Furbee above named, and in this account, among other credits to the deceased’s estate, credits her share of the valuation of her father’s land thus: “By cash from Elias Shockley for portion of her father’s land, say 1/6 of $2848.73 — $474.73.”
May 27, 1817. Molton Rickards passed before John Clarke, Register, a distributive account on Mary Furbee’s estate in which he distributed the balance appearing on the above administration account among her surviving brother and sisters. The balance thus distributed includes, as above said, her share of the valuation of her father’s real estate; and in this distributive account, against the credit to Sally Ann, Elizabeth and Priscilla, respectively, of the distributive share to each, it is entered in the debit side: “See guardian account passed this day etc.”
May 27, 1817. Elias Shockley passed separate guardian accounts before John Clarke, Register, of his guardianship of Sally Ann, of Elizabeth, and of Priscilla Furbee above named; and in each credits each ward by her distributive share of her sister Mary’s estate, as per administration account.
Writs of scire facias have been issued on the above mentioned recognizance: first, for the use of Elizabeth Furbee; and afterwards, for the use of Priscilla Furbee and Sally Ann Furbee against the heirs and terre-tenants of Elias Shockley. Judgments have passed by default.
The question is, what share of the appraised value above mentioned, each of the said children for whose use said writs were marked, viz Sally Ann, Elizabeth and Priscilla, are entitled to levy out of the real estate of Elias Shockley. Whether one-fifth or one-sixth?
This question comes to these points, whether the lien of the recognizance so far as concerns the share of Mary Furbee, deceased, was not extinguished by the proceedings of Molton Rickards and Elias Shockley [and] by the regular accounting for it by Molton Rickards as administrator of Mary Furbee in his administration account on her estate, and by Elias Shockley as guardian of his said wards in his guardian accounts accounting for their respective shares of said Mary’s estate. Or, as Molton Rickards is administrator of Mary Furbee, whether any person but he can recover her share by force of proceeding on the above recognizance.

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If the lien of the recognizance so far as concerns Mary Furbee’s share was extinguished by the proceedings of Molton Rickards and Elias Shockley, or if Molton Rickards as administrator of Mary Furbee alone can proceed on the recognizance to recover her share under it, then, in either case, it is conceived Sally Ann, Elizabeth and Priscilla can each be entitled to one sixth part only of the appraised value secured by the recognizance.
In answer to the first point it is alleged that although the accounts were passed as above, yet in point of truth no money passed from Elias Shockley to Molton Rickards, and that the entries are mere matter of form. It is supposed that no money did pass from Elias Shockley to Molton Rickards and from the latter to the former, as it is not probable that the money would have been paid by Elias Shockley to Molton Rickards as administrator merely to be paid back by Molton Rickards to Elias Shockley as guardian; and, in addition to this, Mr. Rickards asserts that no money whatever passed. It is, however, contended that the regular form of doing the business was that Molton Rickards who as administrator was entitled to receive Mary Furbee’s share, should receipt to Elias Shockley, and that Elias Shockley, who as guardian of Priscilla, Elizabeth and Sally Ann, was entitled to receive their shares of Mary’s estate, should receipt to Molton Rickards; and that although no money passed, these receipts, from the situation of the parties rendering actual passing of money nugatory, would be as effectual discharges as if the money had in fact passed, and that the present case of accounts passed before the authority appointed by law to pass them, and by parties clothed with characters making it their duty to pass the accounts, and the accounts giving legal remedies to their amount, is much stronger than the passing receipts would be.
As the matter is circumstanced, however, if the recognizance does not prevail, there can be no remedy; because Elias Shockley is dead and insolvent, and his surety in his guardian bond is also insolvent.
The parties in interest agree to abide the opinion of the Chancellor. The money is in the hands of Messrs. Pleasonton and Price, administrators of R. Harrington. There has been paid over to the guardian of Priscilla, Elizabeth and Sally Ann, appointed since Elias Shockley’s death, one sixth part each of the appraised value. If the Chancellor should

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be of opinion that they were entitled to levy by virtue of scire facias for their use on the above recognizance one fifth part each of the appraised value, I shall advise the administrators to pay the difference.
(Signed) W. Hall.

The following is the opinion of THE CHANCELLOR.

In the case submitted to the Chancellor on the recognizance entered into by Elias Shockley on his acceptance in the Orphans’ Court of the land of Michael Furbee, two questions arise. First, whether by the account passed May 27, 1817, by Molton Rickards, administrator of Mary Furbee, wherein he charges himself with $474.73, her portion of the appraised value of her father’s land, as being received from Elias Shockley, the recognizor; and by the several guardian accounts passed the same day by Elias Shockley, guardian of Sally Ann, Elizabeth and Priscilla, sisters, and with their brother Jonathan and sister Nancy, heirs at law of said Mary, wherein he credits them each by her share of her sister Mary’s estate, including this $474.73 as being received from Molton Rickards the administrator of said Mary, the land of Elias Shockley is discharged from said recognizance as to Mary’s share of the valuation money. And secondly, whether Sally Ann, Elizabeth and Priscilla, three of the heirs at law of said Mary, can proceed on said recognizance to recover their shares of Mary’s portion of said valuation money.

First. I am [of] opinion that the accounts passed by Molton Rickards and Elias Shockley in manner aforesaid do not discharge the lands of Elias Shockley from his recognizance as to Mary’s share of the appraised value of her father’s land. No money, it seems, passed from the recognizor to Mr. Rickards, the administrator, and none was paid by the administrator to Mr. Shockley, the guardian of the three children. This was not a real transaction. It was done rather for the convenience of the guardian than with a view to the security of his wards. The land of Mr. Shockley and of his surety were bound by the recognizance, and if this kind of transfer of debt could prevail, then the children, without the payment of any money, would have lost the security the law intended for them by taking the recognizance. This is evident, for it now appears that the surety in the guardian bond is insolvent, and the recognizance is available, for it has produced funds sufficient to satisfy their shares of the valuation money. It is true that a real payment of money by a recognizor to a guardian may lessen the security and be the cause of the loss of the debt, but that would be the ward’s misfortune, the transaction being bona fide and in compliance with

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the obligation to pay. But here it seems to have been done merely to shift the responsibility from Mr. Shockley as recognizor to Mr. Shockley as guardian, and to exonerate the land of Mr. Shockley and of his surety in the recognizance.

Further, the Act of Assembly, 1 Del. Laws 92, requires that administrators and guardians should actually receive the money before their discharges shall be binding on the orphan or minor; therefore, according to the true intention of this Act, these credits given in the accounts are not effectual to exonerate Mr. Shockley’s land from the lien of the recognizance. The sum carried to the credit of Mary Furbee’s estate in Molton Rickards’ administration account is $474.73 without any interest. The whole sum, principal and interest, was $538.88, that is, $474.78 principal and $64.10 interest from February 23, 1815, to May 27, 1817; so that there is an evident mistake as to the amount and not a complete discharge of the recognizance, supposing these accounts had an effect which I think they are not entitled to.

Secondly, it does not appear when Mary Furbee died. Letters of administration were granted on her estate March 7, 1815; and if she died before February 23, 1815, when the lands were ordered to Mr. Shockley, the five surviving children of Michael Furbee were each entitled to one fifth part of the said valuation money. In that case, Mary’s share of the land passed to her brother and sisters as fully as if they had been her children. They were, as to real estate, her legal representatives, and the share of each of them of the appraised value of the land was one fifth part. So that in the event here contemplated, I am clearly of opinion that Sally Ann, Elizabeth and Priscilla could each recover on the recognizance one fifth part of said appraised value. I will remark that if, before the land was ordered to Elias Shockley, Mary had died of full age, indebted by judgment, or had aliened her portion of the land, still the proceedings in the Orphans’ Court would have been good, but her judgment creditor or alienee would have had a lien on her part of the valuation money. So if she had mortgaged her share of the land; for no act of hers could have prevented the operation of the intestate laws or discharged her share of the appraised value from the lien of her creditor or alienee.[1]

But if Mary died after the land had been ordered to Elias Shockley, and he had entered into the recognizance, her interest, by the operation of law, lost all the quality of real estate, and her share of the appraised value secured to her by the recognizance

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could be recovered only by her personal representative. Her heirs, as such, could have no claim upon the recognizor, but like every other debt, it was to be collected and distributed by her administrator; and of course in such case, none but Molton Rickards, her personal representative, could enforce the payment of her share of the recognizance.

Notwithstanding, I think that in a court of equity, the administrator being insolvent, a receiver might be appointed for the recovery of Mary’s share of the money for her heirs.[2]

The following is the form of certificate given by THE CHANCELLOR and annexed to the statement:

I am of opinion that the accounts passed by Molton Rickards, administrator, and Elias Shockley, guardian, respectively, wherein they account for Mary Furbee’s share of the appraised value of the land of her father, Michael Fur-bee do not extinguish the lien of the recognizance entered into by Elias Shockley in the Orphans’ Court when the land was ordered to him.
I am also of opinion that, if Mary Furbee died before February 23, 1815, when the land was ordered to Elias Shockley, Priscilla, Elizabeth and Sally Ann, three of the legal representatives of Mary as to this land, were entitled to levy by virtue of a scire facias for their use on the said recognizance, one fifth part each of the appraised value of said land. But if Mary died after the land was ordered to Elias Shockley, her share of the appraised value became changed into personalty by the operation of the law, and can be recovered by Molton Rickards only, her administrator, by scire facias on said recognizance. In the latter case, all difficulty about the insolvency of the administrator may be obviated; for the Court of Chancery, on a bill filed, might appoint a receiver to sue for these three children’s proportions of Mary’s share of the appraised value in the name of the administrator, such receiver giving security to indemnify the administrator.
(Signed) Nicholas Ridgely. May 4, 1822.

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