Ridgely’s Notebook III, 82
Orphans’ Court of Delaware, New Castle County.
April 18, 1820.
Appeal from guardian account passed September 28, 1818.
[Bin of Exceptions.]
1. Exception. That guardian charges himself with 1/7 of 2/3 of the balance of personal estate of ward’s father, the Reverend Thomas Smith, deceased, only, whereas he ought to charge himself with 1/5 of said 2/3 such being said ward’s proportion as one of the children of said T. S. in his own right and by right of representation to other children of said T. S. who died intestate and without issue and for which said guardian is bound to account.
2. Because said guardian is not charged with as much for the said Ebenezer’s part of the valuation money of said Thomas Smith’s real estate as said Ebenezer was by law entitled to.
3. They except to the charges in Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and to the interest on those charges.
4. They except to the allowance under date July 21, and August 21, 1805, and to the allowance of the medical account $75 and to the items under dates February 12, and February 28, 1806; and January 5 and April 17, and May 10, and 20, 1807; and January 25, and February 4, 1808; and January 3, 1809; and August 1811 ($10), and December 29, 1814, no vouchers.
5. Except to interest on above items.
6. They except to the commissions.
Richard Clayton, witness for appellant. Knows family of Reverend T. Smith. He left issue Thomas, John, Samuel (dead), Mary (dead), Elizabeth, David, and Ebenezer (dead). Does not know when Samuel died. Mary died, does not recollect when, nor when Ebenezer died. They all died after their father. They made their home with their mother. Ebenezer was bound out. He was, I’ve understood, put to a tanner and currier.
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John Lum, witness for appellant. Thomas Smith left children. Knew some. Knew Ebenezer, after 1805 knew but little about him. Do not know where he lived from 1803 to 1805. I hardly knew Ebenezer until he came to Mr. Williamson. I was with him in July, 1805, when he got hurt going to Mr. Williamson’s. He was in Kent County, Maryland, when he got hurt. Mr. William-son took him to Robert Moody. Dr. Maxwell and his son attended him. His brother was sent for the night he got hurt. Dr. Maxwell was the attending physician. I suppose he was five or six weeks at Mr. Moody’s. Ebenezer was hurt by a wagon in his feet, very seriously, he was a cripple afterwards. Dr. Smith resided at The Trap. He boarded there. He brought his brother to his lodging. He, Ebenezer, after Christmas, could not walk without crutches. Dr. Smith boarded with Nicholas Chambers, where Dr. Smith carried his brother Ebenezer. I think it was necessary to dress his feet when I saw him after Christmas. Dr. Smith was sent for when accident happened, and a second time when a mortification took place. Knows Eliza Williamson, an appellant. She and her husband do not reside together. He in New Castle County, she in Cecil. They have not lived together since December, 1816, Mr. Williamson says. She told me she was supported by Dr. Smith’s (the defendant’s) order. She said she could get nothing from farm and mills, formerly Mr. Williamson’s without an order from Dr. Smith. I understood Mr. Williamson conveyed them to Dr. Smith, and that the Doctor gave a bond to return it when certain debts were paid. There are five children with Mrs. Williamson. Land and mill I suppose would have rented for $500, have not seen it for ten or dozen years. In 1805 worth $500 per annum.
David Smith, witness for appellant, son of [___].[1] Reverend Thomas Smith had issue, Thomas, John, Samuel, Mary, Eliza, David, and Ebenezer. The minors, all except Thomas and John, resided with their mother, Ebenezer resided with her, but in 1804 he lived with Alien and Smith, as a young man in the store twelve months (witness is one of Alien and Smith). He returned to his mother in 1805, but not long, until he went to Philadelphia to learn the currying business. Ebenezer died 11 month, 1815, in Chester County, Pennsylvania. He was taken sick there. Mary died about 1795 or 1796; Samuel, 1797 or 1798. Ebenezer long time indisposed previous to his decease. Thomas Smith died January, 1792. The mother raised the minors. I do not know that she made any charge. After 1805 Mrs. Smith lived with her son Dr. John Smith. She resided a short time with Mr. William-son
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when she broke up housekeeping. She was not able to live [___].[2]
Ebenezer was born April 1789 and died 11 month, 1815. After he recovered from injury in his feet he was pretty healthy, but he was a cripple, and was disqualified from business. He died of a consumption. Thomas Smith, the son, transacted the business for his mother, the administratrix of the father. I received nothing after I came of age. I received $500 of Thomas Smith after I came of age, my share of the real and personal estate of my father, after my bringing up. My impression is that Dr. Smith never received amount of the real and personal estate of Dr. Smith’s estate belonging to Ebenezer. Thomas Smith had a claim of $1700 against his mother. He sold her right of dower. I was present at a settlement between our mother and brother Thomas Smith. She released her right in the property, her dower. My impression is that Thomas applied money he received for his mother as administratrix to payment of his claims against her. Ebenezer’s friends did not choose to bind him. They were apprehensive he might be imposed on, or suffer, and not be qualified for the business he might be put to, on account of his situation (he was not qualified for nor able to perform laborious duty).
March 26, 1804. Receipt John Smith, for himself, and as guardian of David and Ebenezer Smith, to Thomas Smith, for satisfaction for his, and David’s and Ebenezer’s share of the appraised value of the real estate of Reverend Thomas Smith (under the order of the Orphans’ Court for division of the real estate of Reverend Thomas Smith).
Mr. Read for respondent. August 22, 1818, advertisement of James Williamson, one of the appellants: notice not to trust his wife etc. May 27, 1799, valuation of real estate of Reverend Thomas Smith. Ebenezer’s share $458.68 (principal and interest of this share is accounted for).
Deposition of Thomas Smith, 47 years.
Read for the respondent objected that this appeal cannot be sustained because there were not proper parties before the court. This appeal, he said was prosecuted by James Williamson and Eliza, his wife, which Eliza is the sister and one of the heirs at law of Ebenezer Smith, deceased; whereas the executor or administrator of Ebenezer Smith should be the appellant, and not the heir; and if there is no executor or administrator then an administration should be raised to entitle a person to prosecute the appeal. He referred to the case o Noxon et al. v. Pearce, Executor of Henry Ward Pearce, an appeal in the Orphans’ Court
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brought by an heir at law, wherein it was adjudged necessary and ordered that the administrator d. b. n. of the person who was entitled to the estate should be made a party.
Mr. Johns, for the appellant, replied that the appellants Williamson and his wife, were concerned in the account and by the constitution were entitled to prosecute the appeal.
THE CHANCELLOR
said the appeal cannot be sustained. The personal representative of Ebenezer Smith should be a party. If no administrator has been raised, one should be raised to prosecute the appeal. The respondent, the former guardian of Ebenezer Smith, cannot pay the balance to the heirs, for it should go into the hands of an executor or administrator. The heir could not prosecute a suit at law against the guardian. The bond given by the guardian could only be sued by an administrator or executor, and consequently the heir cannot appeal from the decree of the Register on passing this guardian account. “Persons concerned” mean persons legally entitled to receive or sue as representing or standing in the place of the deceased ward. Let the party raise an administrator and then appeal, if he pleases. The appeal must be dismissed for want of proper parties appellant.
Decree made.
[Miscellaneous entries and orders of the Orphans’ Court appear here, Ridgely’s Notebook III, 85-90.]