Lessee of LUKE TOWNSEND and MARY DEVOU vs. THOMAS REES, 2 Harr. 324

Per Curiam. We do not think it a debateable question. Jesse Devou being entitled to one-fourth of Glenn’s estate as assignee of the eldest son, and being tenant by the curtesy of another fourth, in right of his wife, who was dead leaving two children, obtained a valuation of the land; and the Orphans’ Court assigned it to him on securing one-half the valuation money. There was no law by which the court could compel him to secure the share due to his children, after his death. Then what was the eflect of the assignment as to their right. The act of assembly (1 Del.

Laws, 291,) directs the assignment to be made to the eldest son, &c., he paying to the other children of the deceased their equal shares, or giving good security to pay the same; “and the person or persons, whether minor or others, to whom or for whose use, payment or satisfaction, shall be made as aforesaid for his, her or their respective part or shares of the deceased’s lands, tenements and hereditaments shall be forever debarred of his, her or their right, title and demand, of in and to such share or parts, by virtue of this act, and the same shall be held and enjoyed by the said purchaser, as freely and fully as the intestate held the same.” The act bars from claiming the land all heirs, minors as well as others, who have been paid or satisfied for their shares; then how can it be contended here that the representatives of Mary Clenn, who have not had their share paid or secured for them, are barred from resorting to the land of their grandfather.

We do not question the propriety of the decision of the Orphans’ Court; but deny the effect which is claimed for it. Neither the Orphans’ Court, nor any other court, could transfer the title or interest of these minors out of the land without securing a compensation ; and if it had done so we should not respect the decision : not because we think the correctness of their proceeding can be inquired into collaterally here, but because it would be a clear case of want of jurisdiction. (See Lessee of Lumber vs. Beauchamp, ante 139.) J. A. Bayard, for plaintiff. Rodney and Wales, for defendant. Judgment for plaintiff.