Spruance v. Darlington , 7 Del. Ch. 111 ( 1894 )

Wolcott, Chancellor.

King Dolbow, late of the City of Wilmington, in Hew Castle County and State of Delaware, died on the 9th day of July, A. D. 1881, leaving to survive him a widow, Margaret Dolbow, and three children, namely: Mary Ann Hoffman, John K. Dolbow and William H. Dolbow, and five grandchildren, namely: Mary H. Dolbow, Hattie Moy and Henry E. Dolbow, minor children of the said William II. Dolbow, and Helen H. Dolbow and John Edgar Dolbow, minor children of John K. Dolbow.

After the decease of the said King Dolhow, to-wit, on the 26th day of July, A. D. 1881, a certain paper writing, bearing date the 19th day of August, A. D. 1872, was proved before and allowed by the register of wills in and for Hew Castle County aforesaid, as and for the last will and testament of the said King Dolbow, deceased; and letters testamentary thereon were granted to the said Margaret Dolbow, one of the executors therein named (the said John K. Dolhow, the other executor therein named, having renounced said executor-ship).

By this will or paper writing, the said King Dolhow gave to his daughter Mary Ann Hoffman, $100 absolutely; to his son William H. Dolhow, $10 absolutely, and to each of his three children, Mary A. H. Dolhow, Hattie A. Dolhow and Henry E. Dolhow, the sum of $50 per annum, to be paid for their maintenance, respectively, until each should attain the age of sixteen years. He also gave to his brother John Dolbow, who predeceased him, the sum of $50 per annum during his life. He also gave to his son John K. Dolbow absolutely his two stalls in the Fourth Street Market House, situated in the City of Wilmington aforesaid. The remainder of his estate, real and personal, he gave to his wife absolutely.

The said executrix proceeded to administer the estate of the said deceased according to- the directions of the said will. She caused an inventory and appraisement of the household goods to he made and filed in the office of the said register of wills, the appraised value being $263.50'. She also passed an account before the register which showed that she had paid the debts of the deceased, and the funeral expenses, which, together with commissions and fees, amounted to $977.80.

The residue of the estate of said deceased consisted of seventy-nine shares of Union National Bank stock, a mortgage of $2,000, owed by William Preston, and certain real estate which he gave to' his wife. From the death of her .husband to the time of her death, she collected all the income that had accrued on said stock and mortgage, amounting to $2,528.63, which, together with the rents derived from the real estate, including the estimated rental value of the property occupied by herself, amounted to $6,025.

Margaret Dolbow died February 4th, A. D. 1888, leaving a last will and testament, dated February 7th, A. D. 1875, which, with the codicils thereto, was duly proved before the register February 13th, A. D. 1888, and letters testamentary thereon were in due form of law granted to Thomas Darlington, the executor therein named.

In and by the said last will and testament of the said Margaret Dolbow, she, among other things, bequeathed the said household goods of the late King Dolbow, deceased, to certain of her children and grandchildren, to whom the said Thomas Darlington, executor, delivered the same pursuant to the directions contained in the will of the said testatrix. And from the death of the said Margaret Dolbow to November 1st, A. D. -1888, her children, acting as devisees under her will, collected the rents from the real estate as she did in her lifetime.

After the death of the said Margaret Dolhow, to-wit, on or about the 1st day of November, A. D. 1888, .another paper writing purporting to be the last will and testament of the said King Dolbow, deceased, bearing date the 1st day of January, A. D. 1886, was discovered and produced and filed in the office' of the register .aforesaid, which, by due course of law, was established as the last will and testament of the said King Dolbow, deceased. And afterwards, to-wit, on the 12th day of •June, A. D. 1889, letters of administration, with the will annexed, were duly granted thereon to William C. •Spruance (Edward T. Bellah, the executor named in the said will, having renounced the executorship).

The said testator, King Dolbow, in and by his said last will and testament, bearing date the 1st day of Janu.ary, A. D. 1880, after directing the payment of his debts and funeral expenses, bequeathed to Edward T. Bellah the sum of $5,000, in trust, to invest the same and •collect and pay the income thereof to the testator’s wife, the said Margaret Dolbow, during her life, and at her ■death to pay the said sum of $5,000- to the testator’s five grandchildren, namely, Mary Dolbow, Hatty Dolbow, Henry Dolbow, Ellen Dolbow and Edgar Dolbow, 'in equal shares; and did declare that the provision in behalf of his wife should be in lieu of her dower. And the said testator, in and by his said will, did direct that :all the rest, residue and remainder of his estate should he sold and disposed of by his executor, and that the proceeds arising from the same should be divided by him in three equal parts or shares, and he bequeathed one of said parts or shares to Edward T. Bellah, in trust, to hold the same and apply and pay the income thereof to the said Mary Ann Hoffman during her life, and at her decease, to divide said part or share among the said five grandchildren of the testator, share and share alike; and the said testator did further bequeath one other of' said parts or shares to the said Edward T. Bellah, in trust, to apply and pay the income thereof to the testator’s son, William H. Dolbow, during his life, and at his decease, to divide sáid part or share, in equal shares,, among the children of the said William living at the-time of his decease, and if at his death any of his children should be dead, leaving issue, the said issue-to take-their parent’s share, and if at the death of the said William, all of his children-should be dead, leaving no issue, then said part or share should go to his next of kin or the heirs of the said William. And the said testator did bequeath the other of said parts or shares to-the said Edward T. Bellah, in trust, to hold the same and apply and pay the income thereof to the testator’s, son, John K. Dolbow, during his life, and at his decease, to divide said part or share in equal shares among-» the children of the said John living at the time of his-decease, and if at his death any of his children should be dead, leaving issue, then such issue should take their parent’s share; and if at the death of the said John, all of his children should be dead, leaving no issue, then said part or share should go to the next of kin or heirs» of the said John.

The Equitable Guarantee and Trust C’ompany, on the 3d day of February, A. D. 1890, was appointed trustee for the legacies or sums of money bequeathed to Edward T. Bellah, as aforesaid, he having refused to accept said trust.

The complainant, administrator of the said King Dolbow, as aforesaid, subsequently sold and converted into money all of the estate of the said testator accessible to him, and, on the 17th day of January, A. D. 1890, passed his first account before the register aforesaid, showing an unappropriated balance in his hands of $17,853.25. Out of this sum he retained $853.25 1o meet the expenses of litigation and other contingencies incident to the settlement of the estate of the said testator, and paid the remainder, $17,000, over to the trustee. In the balance shown is included the rents of the real estate, which accrued between the granting of letters of administration to William O. Spruance, the complainant, and the time of the conversion of the same into personalty.

The first question to be decided is, whether the entire subject-matter of this controversy properly falls, within the jurisdiction of this court. Whatever the rights or interest involved in the dispute between the complainant and trustee may be, they are strictly equitable, and are, therefore, exclusively a subjectof equity jurisdiction. And though the matters in controversy between the complainant and the remaining respondents may be of a legal nature, and perfectly capable of being enforced in a legal tribunal, yet, if they are so connected with the trust fund that it may be affected by the result of this suit, it follows as a logical consequence that all the respondents are not only proper but necessary parties to this proceeding. To determine otherwise, assuming such connection to exist, would drive the parties to- a repetition or multiplicity of suits for the enforcement of their respective rights, which is contrary to the principles' of equity jurisprudence.

To bring out this proposition more clearly, let us see briefly what some of the contentions of the respondents are. It is contended that the title to the real estate of King Dolbow at his decease devolved upon his heirs-at-law, subject to the exercise of the power to convert the same into money, and that pending the repose of such authority, they were entitled to the rents and profits thereof. If this be true, the complainant had no right to collect any part of the rents that may have accrued prior to the sale, and turn them over to the trustee. It is admitted that he did collect such rents and mix them with the assets in his hands, which to that extent increased the fund that he paid to the trustee. The heirs-at-law of King Dolbow, deceased, therefore-, in view of their contention, claim from the complainant a sum equivalent to the rents collected and received by him.

It is also contended that the executor qf -Margaret Dolbow, deceased, is entitled to be reimbursed by the complainant, for the money she expended during her lifetime in payment of the debts of her deceased- husband.

It is further contended that certain of the legatees under the will of the late King Dolbow, deceased, should he paid the balance that may he found to he due on their respective legacies.

If the claims presented by these contentions are allowed, it is quite apparent that the amount remaining in the hands of the complainant is not sufficient to satisfy them. And as the complainant under the circumstances is not personally liable to the persons making such demands, a part of the fund represented by the trustee will have to be taken to supply the deficiency.

Now, as the trust fund cannot be made the subject of litigation, except in a court of equity, those claims or rights, whose maintenance or protection threaten its diminution, are necessarily drawn into the same jurisdiction in order that full and complete justice may be done to all concerned.

But it is insisted that as the complainant had an adequate remedy at law respecting the claims made by him upon certain of the respondents, he has no standing in this court, admitting that they are valid and subsisting demands. It is true that the absence of such a remedy has been held by some of the most eminent judges and text writers to be the test of equity jurisdiction, hut this view no doubt originated more in a desire to avoid a collision between courts' of equity and common-law jurisdiction than in a desire to subserve the ends of justice. Consequently, it has never been accepted and recognized as a general rule of law. Whether this is true or not, the consensus of judicial opinion now is that the jurisdiction of courts of equity is not entirely determined' by the absence or presence of adequate legal remedies, though either is not an unimportant element in aiding the solution of such a question.

The facts and the circumstances of the case at bar, for the reasons already stated, furnish a very clear illustration of the hardships that might result, if the presence of an adequate remedy at law were regarded as an insuperable barrier against the exercise of equitable jurisdiction in such cases. As a matter of convenience to the courts and the lawyers, the adoption of such a rule would be a very excellent thing, in that it would relieve them of very many delicate and embarrassing questions of a jurisdictional character. But it must be remembered that the object to be secured in formulating rules of practice and enunciating principles of law is not so much the convenience of courts and lawyers as it is the advancement or promotion of justice between suitors.

The conclusion, therefore, reached by me is that I can see no reason why this court should not take, jurisdiction- of all the matters in dispute between any and all the parties to this suit, so far as the adjudication thereof may affect or threaten the integrity of the trust fund.

The next question that arises is: whether the executor under King Dolbow’s will, or the administrator c. t. a. had a right to receive the rents in controversy?

The only source whence this right is claimed, to- be derived, is the clause or item in the will which simply directed the executor to sell the real estate, and divide the proceeds of the sale thereof in the manner prescribed therein. This being then a mere direction to sell, it vested no estate whatever in the executor. It is strictly a naked power uncoupled with any interest. Neither did any estate or interest in the lands, qua lands, pass to the legatees or objects of the testator’s bounty as such, because their interest under the terms of the will attached only to the fund produced by the sale of the property. Therefore, between the death of the testator and the sale, the title to the fee descended to his heirs-at-law, and remained in them until it was divested by the execution of the power conferred upon the executor. During that intermediate period then, the heirs-at-law were entitled to the rents and profits arising from the real estate without let or hindrance from any source. This conclusion, therefore, eliminates to a very large extent the question of rent in the settlement of the various accounts between the parties to this proceeding. In this connection it is only necessary to state that the complainant must account to the heirs-at-law of King Dolbow, deceased, for the rents received by him, less the costs and expenses of collecting the same.

Another question raised is, whether the estate of Margaret Dolbow, deceased, should be credited with the amount paid by her as legacies to- the parents of the minor legatees under the first will of the late King Dolbow, deceased.

The only person to whom payment can he legally made of money belonging to a minor, is to his or her guardian. In this case there is no allegation that the money paid to the parents of these legatees on their account was improperly expended. They, however, were not the parties legally competent to receive such legacies, and could not, therefore, execute a valid discharge or acquittance for the same. Grant that the money in this instance was judiciously used, yet there are not a few parents who, if such a privilege were granted to them, would expend the money belonging to their children in such a way as would not be beneficial either to their physical or intellectual welfare.

The safe rule or practice to establish in such cases, is to require a strict adherence to the law in every instance where it is practicable and not inconsistent with the necessities of humanity. Therefore, the sum paid in the discharge of such legacies must be disallowed as a credit to the estate of Margaret Dolbow, deceased. If, however, Margaret Dolbow, as executrix of her late husband, had paid these legacies to parties authorized to receive the same, her estate would have been entitled to credit therefor, under section 12, chapter 89 of the Revised Code, which declares, that all the lawful acts of such an executor or administrator shall be valid. Neither does this provision of the Code apply to the claim made on account of the erection of the monument at the grave of her deceased husband, because the expenditure therefor was not authorized by law.

The claims for repairs and taxes cannot be allowed for the reason that she expended the money in that behalf on her account as the owner of the property, out of the rents which she received therefrom.

The executor of Margaret Dolbow also claims that the amount expended by her in payment of the debts of her deceased husband should be a further credit to her estate. At first I was inclined to the opinion that her estate was not entitled to such a credit upon the ground that the rents which came into her hands should under the statute be treated as assets for the payment of debts. Upon reflection, however, I have concluded otherwise, inasmuch as nothing appears to show that she received such rents in her representative capacity. Acting under the belief that she was the owner of the real estate, the presumption is, that she collected and received them as such owner and not as executrix. Therefore, until something is shown to rebut such presumption, it must prevail. Under the circumstances, the only person to whom she was accountable for the rents thus received, were the heirs-at-law of her deceased husband.

The claim is also made by Margaret Dolbow’s executor that her estate is not responsible for the return of the goods and chattels mentioned, or the payment of their equivalent in money. But this is incorrect. Their acceptance under the first will of King Dolbow operated only as a release of her official liability on account of the use and possession thereof during- her life, and the disposition of the same by her last will and testament. While they remained in her hands, or in the hands of those who hold them as a gift, they are liable to be taken as a part of the estate of King Dolbow under his last will and testament. They could only pass beyond the control of his legal representative where the rights of innocent persons based upon a valuable consideration had intervened. Hence, the appraised value of such goods and chattels must be treated as a just charge against her estate.

There is still another question in regard to the rights of the executor of Margaret Dolbow, deceased, caused by her dual relation in her lifetime to the estate of her deceased husband as legatee and doweress. In view of the innocent concealment of the last will of King Dolbow, until after the death of his widow, she had no opportunity to elect whether she would take under the will or under the law. As she was deprived of that privilege by circumstances over which she had m> control, the court will make the election most advantageous to her interest. In courts, both of law and equity, the rights of widows are favored. It is conceded that the annual income secured to her by the will amounted to more than she would have received out of the estate of the deceased under the law. It is, therefore, held that the widow took only under the will, and nothing under the law, and the trustee should pay to her executor the interest upon the trust fund of $5,000, from the time of the death of King Dolbow to the time of her death; and the trustee should also pay to* the five grandchildren of King Dolbow interest upon their respective portions of said trust fund from the time of the death of Margaret Dolbow to the time of the payment to them of the principal thereof.

The Statute of Limitations which has been invoked by her executor can have no application in this case, granting that it is available in a court of equity. Until there are parties capable of suing and being sued, the statute does not run. This is too well settled to admit of doubt or argument.

In this case there could be no proper party to represent the estate of the testatrix until after the discovery and establishment of the second will, and letters of administration with the will annexed were duly granted thereon. Consequently no cause of action which the complainant had could have been affected by the statute even in a court of law, if it had been prosecuted within three years after the date of his. appointment. Until then no cause of action had accrued.

How, as to the parties who took under that will, in this court at least, they are also saved from the operation of the statute during the concealment of the will, though on a somewhat different ground. They were unavoidably ignorant of their rights. They cannot be chargeable with either negligence or carelessness, as no amount of diligence would have aided them in the discovery of the document from which their rights are derived. There was nothing to awaken such diligence in the minds of reasonable persons. Their sleep then was not the slumber of the foolish. "While the first will stood on the record unchallenged, they acquiesced in its provisions as the foundation and measure of their respective interests in the estate of the deceased testator. They did so because there was nothing either of record or outside of the record to show a different testamentary intention on his part. To permit the Statute of Limitations to be interposed to prevent the parties from adjusting themselves to the changed conditions produced by the accidental finding of the second will would be carrying it beyond the purpose it was intended to serve. A court of equity will not allow such an inequitable use to be made of such a wise and beneficial statute.

Let the decree be drawn in conformity with this opinion.