Ridgely’s Notebook II, 301
Orphans’ Court Court of Delaware, Kent County.
February 15, 1819.
The mother of David B. Hitchins died when he was but a few days or weeks old. Elisha Hitchins, the father, died about a month after the mother. Then the child was without father or mother. Charles Smith and his wife, immediately after the death of the father[1] , took it and have had it ever since. Charles Smith afterward was appointed guardian. Peter Hitchins, the uncle of the child, at the same time applied to be guardian.
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Smith and his wife had formed a strong attachment to the child, as he said, and it is presumed, the child was equally attached, to them. He knew nobody else, and Smith and his wife were as parents to it. Smith agreed to keep the child for nothing, except perhaps a small matter for clothes. For these reasons I appointed Smith in preference of Peter Hitchins, the uncle. Smith gave a guardian bond dated August 17, 1816, in $4000, with Sovereiga Davis his surety. At February, 1817, it was represented to the Court that Sovereiga Davis had become insufficient security. On examining into the matter, Charles Smith being present, he admitted, and it was clearly ascertained, that Davis was insolvent and not sufficient security. Peter Hitchins gave in the first instance this information to the Court in order that Charles Smith might be removed from the guardianship of David B. Hitchins, and he, Peter, appointed. At February [1817] it was ordered by the Court that Charles Smith should give at the next Orphans’ Court, August, 1818, other and better security. Smith did not, and has not complied with the order.
At this day, February 17, 1819, Peter Hitchins came forward again, and the Court removed Charles Smith from the guardianship of David B. Hitchins and appointed Peter Hitchins guardian, who gave bond with William Hamilton of Mispillion Hundred surety in $4000. This removal of Smith was made with the utmost reluctance by the Court. Nothing but the positive and imperative command of the law, 1 Del. Laws 422, could have influenced the Chancellor to do so. Smith and his wife were as parents to the child; and although there was no affinity by blood or marriage, the child knew no other friends or relations. It is now but four years old (the age is not exactly known), and from the time it was six or eight weeks old it has always lived with Smith. He and his wife have been very kind and tender of it. The uncle, now guardian, from his conversation in court with the Chancellor, evidently has in view the consumption of the child’s estate, about $300 in its maintenance. The Chancellor pressed him to permit the child to remain with Smith. He refused because then he would get nothing in maintaining it.
THE CHANCELLOR
then informed him, Peter Hitchins, that if his guardian account should be settled before the Chancellor that he, Hitchins, should never be allowed for maintenance, schooling, sickness, or any other account whatever, more than the interest of the child’s money; because the child could be maintained and schooled for that or less. And he pressed on Peter Hitchins to remember this before the guardian bond was signed; and that if he meant to claim any more, not to sign the bond, as he was now
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free from any obligation and need not accept the trust. And THE CHANCELLOR further said that he would not have removed Charles Smith from the guardianship, if the law had not obliged him. William Hamilton, the surety, hesitated a short time, on hearing this declaration of the Chancellor, signing the bond, but finally they both executed it, with full information of the determination of the Chancellor, if the account should ever come before him.