Robinson v. Burton

2 Del. Ch. 314

• Court: Court of Chancery of Delaware
• Decided: March 15, 1863
• Status: Published

Opinion

Harrington, Chancellor.

The property which was originally in contest between Robert B. Robinson, as trustee for Sally Burton, and Peter R. Burton, a creditor of her husband, was trust property for the most part in specie, never having been converted. It was made subject, to be sure, to the payment of debts and funeral expenses ; and for that purpose it was in the power of Polly Burton’s administrator, and liable, on conversion, to be divested of the trust; but, except for about $38, it was not needed for debts or fgneral charges, and was in fact never converted. The filing an inventory and appraisement and passing an account by the administrator was nota conversion of the property. The identical articles still remained and were followed by the trust. In this condition they were seized by Peter R. Burton, on execution, as the property of the administrator and for the payment of his debts. Sally Burton’s trustee obtained an injunction by petition,and the other complainants became sureties in an injunction bond, with condition to pay the execution, or so much as the Chancellor should decree, and to perform the decree, The injunction was dissolved for want of diligent prosecution, no bill having been filed. A suit was brought at law against these complainants on the injunction bond ; and judgment was recovered on a written agreement of counsel that the judgment should in all things await the final decree of the Chancellor in the case now pending in the Court of Chancery, and that no proceedings should be had or taken upon said judgment until such decree is made by the Chancellor.

Without this agreement the Chancellor would not interfere with the proceedings at law,which were regularly had upon a forfeited bond, pending which the original complaint was regularly proceeding in this Court by bill and answer. But, the judgment at law having been taken subject to the final decree here, is no obstacle to the proceeding in this cause on its original equities; and, the trust being established and the trust property ascertained, I have no difficulty in deciding that it was not subject to the debts of John H. Burton, nor liable to be seized on the execution of Peter R. Burton.

Let a decree be entered, perpetually enjoining the defendant, Peter R. Burton, from further process against the goods in controversy, and ordering that John H. Burton deliver the goods to the complainant, Robinson, as trustee under Polly Burton’s will, upon the payment to John H. Burton of $38, due him as administrator. Also, let Peter R. Burton be perpetually enjoined from execution upon the judgment recovered at law upon the injunction bond.

Decree affirmed by the Court of Errors and Appeals at the June Term 1865. See 3 Houston’s Del. Rep. 154.