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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 434   View pdf image (33K)
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434 JONES v. JONES.—1 BLAND.

pay the valuation, one of the heirs, who had not been satisfied,
brought an ejectment, for his one * undivided sixth part of
460 the land descended, against the elector. Upon which it was
held, that a legal estate in fee, in the land elected to be taken,
cannot vest in the party electing to take, and pay the value, with-
out his actually paying the persons entitled their just proportions
of the value in money, or giving bonds to them for the same
agreeably to the Act of Assembly. 1802, ch. 94; 1820, ch. 191,
s. 20, 21 & 22; Jarrett v. Cooley, C H. & J. 258. Whence it would
seem, that although the elector may be regarded as a purchaser;
yet, by his election alone, the estate is not thereby changed from
realty to personalty, or from an undivided estate into an estate in
severalty, until the value, in money or bond, has been actually
paid or given, although the judicial proceedings under which the
election had been made mayhaie been, long before, finally ter-
minated. Ridgely v. Iglehart, post.

In the case now under consideration the Court is informed, by
the bill, that the surplus of the proceeds of the sale of the real
estate of the late Jesse Jones, yet remains in the hands of the
sheriff, who made the sale, in obedience to a writ of fieri facias,
which emanated from the Court of Appeals of the Eastern Shore;
and further, that there have been no administrator appointed to
take charge of the personal estate of the intestate Jesse Jones.

1 feel perfectly satisfied, that the surplus in the hands of the
late sheriff, who is now here as a defendant, must be regarded as
personalty; and as such belongs not to the heirs, but to the per-
sonal representative of Jesse Jones. But there is no such person
here as a party to this suit; and, without such a party, I hold it to
be impracticable, by any decree of this Court, to affect this surplus;
which, as personalty, can only be called for from the hands of the
personal representative of the intestate to whom it rightfully and
exclusively belongs. For, although creditors may be allowed to
proceed against the heirs alone, in respect to the real assets de-
scended to them, where there is no administrator, or the personalty
has been altogether exhausted; yet they certainly cannot be
allowed, in this way, to obtain satisfaction of their claims from a
merely personal fund, to which they direct the attention of the
Court, without making the administrator, who alone can be en-
titled to such fund, a party to the suit.

Supposing however, that an administrator of the late Jesse
Jones was here as a party to this suit; even then, this defendant
Brown, the late sheriff', as regards his possession of this surplus,
must be * considered as an officer of the Court of Appeals.
461 But can the Chancellor order money, which has been legally
placed in the hands of an officer of the Court of Appeals, subject
to their control, to be brought into this Court, to be disposed of
here as may be deemed right, among the parties to this suit ? This

 

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Brantly's annotated Bland's Reports, Chancery Court 1809-1832
Volume 198, Page 434   View pdf image (33K)
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