Ridgely’s Notebook III, 42
Orphans’ Court of Delaware, Sussex County.
March 8, 1820.
On July 19, 1819, an order was made directed to John Collins, John Wilson, Ralph Robinson, John Davis, and John Richards to divide the real estate of the intestate, Isaac Cannon, among Curtis Jacobs, assignee of Sylvester Cannon, the eldest son of the intestate, Noah Ross and Lavinia, his wife, a daughter of said intestate, Nester Cannon, another daughter, and William Ross and Mary, his wife, another daughter of said intestate, to be divided into four equal parts, etc.
The freeholders returned said order, with a plot and division of said land into four parts, assigning to the assignee and each heir one of the said parts.
Curtis Jacobs at this term filed exceptions to said return and division:
1. That Ralph Robinson, one of the freeholders, is an uncle to the heirs of the intestate, the former wife of said Ralph Robinson being a sister of the mother of said heirs.
2. That the allotment to Curtis Jacobs is not of equal value to the allotment of either of said heirs, in particular to that of William Ross and wife.
3. For that the freeholders did not view the woodland, etc.
4. For that part of Curtis Jacobs’ allotment includes about twenty acres of a tract of “Bite the Biter” which he purchased of Daniel Adams, who was in his lifetime possessed thereof and until his sale to said Curtis Jacobs. It also includes about ten acres of same tract belonging to William Ross.
5. For that the said Curtis Jacobs owns one-fifth of the ninety-eight acres assigned to Noah Ross and wife, which said Curtis Jacobs purchased of William Laws; this said Isaac Cannon having purchased of the other heirs of AnnaPage 540
Lewis, formerly Anna Laws, the other shares of said ninety-eight acres.
THE CHANCELLOR.
For so much of the tract of land called “Bite the Biter” as is included in the part assigned to Curtis Jacobs, and to which Curtis Jacobs has a title paramount [to] that of Isaac Cannon deceased, the division is unequal. It appears from the testimony of William Neal that there are fifteen or twenty acres of this land. This part of “Bite the Biter” fell into the possession of Isaac Cannon by his being guardian of Daniel Adams. He changed the fences for his own convenience and left them so at his death. Daniel Adams never disturbed this holding. The widow of Isaac Cannon being his mother by a former husband, and he being willing to accommodate her, he afterwards agreed for the sale of this land to Curtis Jacobs, for which Jacobs has paid him. In this respect then the division is unequal, the other heirs having received an equivalent for these fifteen or twenty acres which never were owned by the intestate, Isaac Cannon.
As to the parcel of land which Jacobs claims as part of “Sam’s Horsey’s Swamp,” as part of “Little Gosher,” it does not belong to Curtis Jacobs to object, although he claims such parcel by the deed of William Laws and wife. It lies in the part assigned to Noah Ross and wife, and it might be an objection in his mouth, but not in Jacobs. However, as to this land the title of Jacobs is not so apparent as to be sufficient to overthrow the division on what now appears. Jacobs bought in Laws’ title last January after the proceedings commenced in this division. He was holder of part of this Cannon land, and this title of Laws is a mere dormant one, and therefore Jacobs should be considered a trustee for the other heirs; more especially as the freeholders went on this land the 12th October last, and the survey was made in the same month, and the division is dated in the same October, although probably not signed until after January. All this indicates something like an intention in Jacobs to frustrate this division by buying in and setting up a dormant title in January last. At the best, Jacobs should therefore be considered merely as a trustee for the other heirs and himself.
On account of this part of the tract called “Bite the Biter” being included in Jacobs share, and the other heirs receiving an equivalent there from this division, this division is not approved, and a review shall be ordered; and on the return the Court will examine both and will adopt such as shall be then approved.
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