On the PETITION OF ROBINSON, 2 Del. Cas. 321 (1817)

Ridgely’s Notebook 7, 104

On the PETITION OF JOHN ROBINSON for the Partition and Division of the Lands and Tenements of his Father, John Robinson, who died intestate.

Orphans Court of Delaware, Sussex County.
July 23, 1817.

Levin Godwin, the husband of Hester, one of the daughters of William Kendrick and Lydia, his wife, both now deceased, which said Lydia was a daughter of said John Robinson and died in his lifetime, and left issue Daniel, James, Arcada, wife of Jeremiah Conwell, Rhoda, wife of William Barr, and the said Hester; the Levin objects to the said division, because that the said John Robinson, the petitioner, had been advanced in the lifetime of his said father by a part or portion of land, which had not been taken or deemed by the freeholders as part of the share of his father’s estate.

Affidavit of Levin Godwin filed.

Laurence Riley, witness for Godwin. Knows land, late of John Robinson, and land of the son John Robinson, sheriff. The old man held the land where John now lives. The land where John, the son, lives is part of the land which John the father purchased of Mr. Read. John Robinson went to live on these lands twenty-five years ago, I suppose. Charles Robinson, another son, went into possession of another tract on the opposite side of the road. The whole was in woods except a little clearing where old Mr. Collins lived. I ran some lines by direction of Mr. Robinson to ascertain a certain quantity of land within certain lines, in March, 1806. The part on which Charles had lived on was taken into the division. I was surveyor in the late division.

April 2, 1788, indenture, George Read and wife to John Robinson.

Riley. Part of the land in possession of John Robinson is included in this deed of Mr. Read; the greater part is included in this deed. There are two hundred acres in John Robinson’s tract

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all of which is included in Mr. Read’s deed, except somewhere about thirty acres of Collins’ tract, but I know not which of them bought of Collins.

John Bennett, witness for Godwin. I was called on by John Robinson, deceased, to write a will for him. I wrote it, but it was not signed; he afterwards burnt it. This was five years ago. He gave John Robinson two hundred acres in that will, the land in question. I always thought that the improvements were made by John on the land he lives on. A tolerable good house, barn and other common buildings.

Nathan Reed, witness for Godwin. I have heard John Robinson say he had no deed for this land. His father did not convey the land though he had it surveyed for the purpose, because there were twenty or twenty-two acres more in the survey than two hundred acres. He, John, expected a title. This I heard John say, on being questioned about his being a grand jury man. The land was mostly woodland when sheriff went on it. Sheriff put up the buildings.

THE CHANCELLOR.

The order for the division of the lands and tenements of John Robinson, the intestate, together with the division and return, must be set aside. The two hundred acres held by John Robinson under his father must be deemed an advancement. It would be highly unjust that that land should be thrown into the common stock, and equally so that John Robinson should hold it without making any allowance. He clearly entered into the possession under his father with his consent, not as a tenant, but certainly as a portion of his father’s estate; and as his possession for twenty or twenty-five years has thus been held, it must be presumed as an advancement for which the other heirs must receive an equivalent. John Robinson must pay the costs.

Order and return set aside.