Ridgely’s Notebook II, 454
Orphans’ Court of Delaware, Sussex County.
July 21, 1819.
Petition for the division of a tract of land in Cedar Creek Hundred among the heirs of Pemberton Carlisle, as intestate land.
Mr. Cooper, for the petitioner, reads the will of Pemberton Carlisle, dated August 2, 1810, proved January 13, 1818. He died January 5, 1818. Testator devised the land in fee to Charles Carlisle. Also to Pemberton Carlisle land testator bought of Dr. Rogers and James George, and if he shall die without an heir, said land to return back to his brothers and sisters equally to be divided. He then devised the residue of his lands to his three daughters, Nancy, Polly and Rebecca, in fee, equally to be divided. He, the testator, names the residue, or different parcels of land not before devised.
Elias Shockley, witness for petitioner. Knew Charles Carlisle, son of Pemberton. He died in June or July, 1817. Witness and Richards had debt against Charles. After Charles’ death, witness called on Pemberton Carlisle about it, the debt. The old man said, “Go on and use the land,” and he told witness to call on the widow of Charles and work the land as she used to. He said he wanted Charles’ debts paid; that the land was the children’s, the children of Charles. He, Pemberton, thought, as he had made a will and left the land to Charles, that it would be Charles’ children, though Charles had died before him, Pemberton. He, Pemberton, paid me afterwards $100 in part [payment] of the judgment against Charles. Pemberton Carlisle wrote a note to witness dated August 18, 1812, thus, “Sir, I have no demand against Charles Carlisle’s personal property or the land he lives on until your debt is paid from me, Pemberton Carlisle.” Charles himself got [it] of his father and brought this note to us. Charles settled on this land about 1795 or 1796. Charles Carlisle obtained credit generally in consequence of holding this land. Witness had believed that he had a deed for it, till 1812.
Charles Palmer, witness for respondent. Charles Carlisle took possession of this land, January, 1796. He had married a few
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weeks previous, Charles put improvements on land. He bought a dwelling-house, and moved it on the land. He also moved two outhouses on it. Priscilla Carlisle, the widow of Charles, and the children of Charles are in possession of the land. His father gave him a house, and he moved it on the land. It was moved from Shawny. It is admitted by petitioner that Charles paid the taxes for the land from the time he went in possession of it in 1796 till his death.
Henry Hudson, witness for respondent. I considered Charles to be an owner of the land. I trusted him and indorsed a note for him in the bank on the supposition that he was or would be the owner of the land.
Mr. Cooper for the petitioner. Peter Robinson
for the respondent.
THE CHANCELLOR
said that it appears that Pemberton Carlisle did not die in possession of this land. Priscilla, the widow, and the children of Charles Carlisle set up a title adverse to the other heirs of Pemberton Carlisle. This widow and the children of Charles were in possession before and at the death of Pemberton Carlisle, and they claim the land against Pemberton Carlisle and his heirs. Now, though the devise to Charles may not avail his heirs, as Charles died before the testator, yet the heirs of Pemberton Carlisle ought to recover the possession of this land before they can proceed under the intestate laws to obtain a division of it. Pemberton Carlisle did not die the owner of it, that is, he was not seised and possessed of it at the time of his death, and until the heirs obtain the possession by proceedings at law or otherwise this Court cannot undertake to make a division of it.