Volume 12 — Delaware Chancery

Petition to Set Aside a Sale made by a trustee appointed for that purpose in partition proceedings.

Bill to Set Aside a Deed. The cause was heard on bill, answer, testimony of witnesses heard orally by the Chancellor and exhibits. The facts are sufficiently stated in the opinion.

Bill in Equity by a widow to have the executor of her deceased husband repay to her certain sums of money alleged to be due on account of loans to and payments made on account of her husband. The cause was heard on bill, answer, testimony of witnesses produced before the Chancellor and exhibits. The facts appear in the opinion of the Chancellor.

Bill to Foreclose Mortgage. Bill by Sylvester D. Townsend, Jr., as trustee for foreclosure of a mortgage or deed of trust against the Delaware Glue Company. After hearing on the bill and answer, at the election of complainant, a decree was entered directing the trustee named to sell the property at public sale. At return by trustee of his proceedings confirmation of the sale was objected to by the purchaser.

<p>Bill For Specific Performance of a contract to sell real estate. The facts appear in the opinion of the Chancellor.</p>

Statement of the Case. To the bill the defendánts have filed a plea and an answer.

<p>Bill for Instructions to Executor. The bill is that of an executor for instructions concerning the will of the decedent to guide in the performance of duties imposed on the executor by the will. By the second item of his will the testator ordered, authorized and directed his executor to sell all his goods and chattels and real estate of which he might be seized at his death, excepting the land “hereinafter more particularly devised.” The fifth item of the will is as follows:</p> <p>“Fifth. I give and devise unto Margaret E. Polite, should she be living at the time of my death, all that certain tract, piece or parcel of land, situate in Sussex County, Delaware, where I now reside, lying on both sides of the county road leading from Millsboro to Lewes, adjoining lands of Joseph Moore, Erasmus W. W. Marsh and others, containing forty-five acres, more or less, for and during the term of her natural life, and at her death the said property go to Dr. Joseph M. Martin, his heirs and assigns forever.”</p> <p>By the sixth item of his will the testator directed that after the executor had made sale of his real estate not specifically devised, the proceeds be divided in certain shares among certain persons named.</p> <p>It was alleged that after making his will, the testator sold and conveyed the land referred to in item fifth above, and on the same day acquired another tract of land adjoining and contiguous to the residue of the land mentioned in that item, but did not thereafter republish his will. The devisees mentioned in item fifth claim that this after-acquired land was devised absolutely to them, while the residuary legatees of the will claim that it is part of the residue and should be sold according to the directions of the will so that the proceeds thereof may be distributed to and among them. Having converted into money all the property of the decedent except this land acquired after the. date of the will, and being in doubt as to its duties with respect to that' land, the complainant brought into court as defendants all the persons interested including those claiming to be devisees under item fifth and also the persons who as residuary legatees are entitled to shares of the residuary estate when converted into money, and asks that the will be construed, and that the court determine whether the executor should sell the after-acquired land, or whether it had been devised under item fifth.</p> <p>One of the defendants, Margaret E. Polite, the devisee for life of the after-acquired land under item fifth of the will filed a general demurrer to the bill as not containing “any matter of equity whereon this court can ground any decree and give to the complainant relief against the defendant.”</p> <p>At the time of the argument of the demurrer none of the other defendants had demurred, pleaded to or answered the bill.</p>

Injunction Bill. As required by Rule 101 of the Court of Chancery, after filing the bill of complaint in this cause, the complainant served notice upon the defendants of her intention to apply to the Chancellor for an order restraining the defendants from further proceeding under a judgment in the Court of Common Pleas for New Castle County to obtain possession of premises by Abram E. Frantz, one of the defendants, occupied by the complainant as tenant under a lease.

Bill to Have Declared Invalid a Chattel Mortgage. By the admissions of the mortgagor and mortgagee, the chattel mortgage was given, not only to secure a debt which was then owing by the mortgagor to the mortgagee, but also to secure advances of money to be made by the mortgagee to the mortgagor.

<p>Bill for Specific Performance. By a written memorandum of agreement the complainant, Kenyon, agreed to buy, and the defendant, Dorothy W. Millard, agreed to sell, real estate for $4,500; and, as stated therein, $100 was deposited by the purchaser with the agent of the seller as “forfeit money to bind the bargain” and “to be considered as a part of the purchase price.” The memorandum also contained the following:</p> <p>“And for the true performance of all and every one of the covenants and agreements aforesaid, each of the said parties binds himself, his heirs, executors, administrators and assigns, in the penal sum of $100, lawful money in the United States, firmly by these presents.”</p> <p>To compel specific performance of the contract a bill was filed, and a rule for a preliminary injunction to prevent a conveyance otherwise than to the purchaser was awarded. At the hearing of the rule the solicitors for the parties submitted arguments as to the effect of the agreement and particularly the above-quoted clause.</p> <p>On behalf of the defendant testimony was offered to prove a uniform custom and practice of real estate brokers in Wilmington to construe the clause as fixing liquidated damages, so that the seller may be relieved from carrying out the contract by paying the penalty, and it was urged therefore the defendant cannot be compelled to specifically perform the agreement if she offer to refund the amount received and pay to the purchaser the sum of one hundred dollars as penalty or liquidated damages.</p>

<p>Heard on exceptions by receiver to a creditor’s claim.</p>

Statement of the Case. The bill of complaint in this cause was filed for the purpose of restraining the defendant, its officers, servants and agents from transacting any business whatever or selling any stock under the name of Oklahoma Consolidated Producing & Refining Company; from in any manner representing that it is the complainant; and from making any representations that will lead the public to believe that it is the complainant; and from issuing or publishing letters,…

Bill By Executor for Instructions. Joseph W. Marsh by will dated January 19, 1916, directed his executor to sell all his property excepting, however, the lands and chattels hereinafter more particular devised or bequeathed,” made certain legacies, pecuniary and specific, and by the fifth item devised, as follows: “Fifth: I give and devise unto Margaret E. Polite, should she be living at the time of my death, all that certain tract, piece or parcel of land, situate in Sussex…

Bill and Supplemental Bill for an Injunction Against Proceeding on an Execution. Philip Caplan, one of the defendants, on July 27, 1918, obtained a judgment by confession against one Meyer Margolin on a bond dated May 18, 1918, for $1,000, due and payable May 18, 1919, with interest, and under a fi. fa. on said judgment, issued August 9, 1918, personal property of the defendant, Margolin, was levied on and advertised for sale by the sheriff on September 10, 1918.

Statement op the Case. The bill alleges that in 1909 and 1910 the complainant, while employed by the government of Brazil, discovered an improved process for the manufacture of propellant explosives, which was of great value, and submitted to one of the directors of a certain powder corporation a full réport of the process “for the purpose of selling the same” to that corporation.

Bill to Rectify Accounts of Trustees under the will of William H. Gregg, deceased. Heard on bill, answer, testimony of witnesses and exhibits.- The facts appear in the opinion.

<p>This cause was heard on bill, plea, testimony of witnesses and exhibits, the facts being sufficiently stated in the opinion of the Chancellor.</p>

Statement of the Case. A receiver was appointed to wind up the affairs of the National Building Loan & Provident Association, and its assets including certain real estate were sold and collected.

Petition by one of two trustees under the will of Horace Burr, deceaséd, for the appointemnt of a person to convey to both trustees the subject-matter of the trust. The facts sufficiently appear in the opinion of the Chancellor.

Petition for Rule 'requiring receivers-and the defendant company to show cause why the Chancellor should not summarily order a meeting of stockholders for the election of directors of the defendant company.

Statement of the Case. The bill was filed on September 25, 1915, wherein it was alleged that on August 10, 1910, an action of trespass on the case was brought in the Superior Court for Sussex County by Elizabeth A. Layton against the complainant, Parker H. Hudson, for damages by fire to growing timber on her land, and on October 14, 1910, judgment was entered for want of an appearance.

Bill to Vacate a Judgment in the Superior Court for New Castle County, obtained for want of an affidavit of defense, the grounds being legal fraud on the part of the plaintiff by which the defendant in the action did not make the legal defense there was to the aciton. The cause was heard on bill, amended answer, testimony of witnesses heard orally by the Chancellor and exhibits. The facts are stated in the opinion.

Statement of the Case. A demurrer to the original bill was sustained (ante p. 76, 106 Atl. SO) and the complainant filed an amended bill, to which the defendant has demurred. The case was heard on bill and demurrer, the material facts being set forth in the opinion of the Chancellor.

Motion to File an Amended Bill. Upon filing the original bill of complaint notice was given to the defendants of the intention of the complainant to apply for a restraining order. A hearing, was had and the restraining order denied. No further steps were taken in the case, and on September 5, 1919, after notice to the defendant’s solicitors, application was made on behalf of the complainant to file an amended bill.

Motion to Dismiss Bill. The bill was filed by receiver of Lewes Fisheries Company against former directors thereof and persons to whom assets and property of. the company were alleged to have been fraudulently conveyed. A motion to dismiss based on impropriety in the selection of a solicitor by the receiver was filed upon defendants’ solicitors being permitted to appear specially to make the motion.

Bill by an Executor for Instructions, and to have the residuary legatees under the will interplead with Samuel M. Harvey, who under a contract with the testator- claimed part of the proceeds of sale of land of the testator sold by the executor. Heard on bill, answers, testimony and exhibits. The facts are stated in the opinion of the Chancellor.

<p>Injunction Bill. The bill seeks an injunction to restrain the erection of garages by the defendant on his land adjoining that of the complainants. A demurrer to the bill was filed on behalf of the defendant, and the cause heard on bill and demurrer. The facts are sufficiently stated in the opinion.</p>

<p>Heard on motion to dismiss bill of complaint.</p>

Bill for the Construction of a Will. The hearing was on bill and answers, the facts being these: William M. Harrington, of the town of Harrington, who died in 1898, by will dated March 3, 1886, probated in Kent county, disposed of his property as follows: “Item 1.

Bill for Specific Performance of an agreement for ■ sale of land. The complainants, Major Hurd and Nancy Hurd, his wife, owning a farm formed of two parcels of land in South Murderkill Hundred, Kent County, Delaware, made on November 25, 1919, an agreement in writing to sell the same to the defendant, William M. Hughes, free and clear of all liens and incumbrances thereon, or against any interest, present or contingent, held by either owner.

Exceptions to Claims. A receiver was appointed for the Eastern Horse and Mule Company, and in the regular course of proceeding certain claims were filed, to which exceptions were taken. The.hearing was had on the claims and exceptions, and the pertinent facts are set forth in the opinion.

Bill for Specific Performance by the seller of a contract for the purchase of land. The case was heard on the bill, answer, amended answer and testimony of witnesses and exhibits. The opinion of the Chancellor sets forth the facts.

<p>A gift,of personal property for life with no gift over is absolute.</p> <p>If there be a general gift of personal property to one for life, with a gift over on a contingency which does not happen, the life beneficiary takés an absolute estate.</p> <p>Where there is a gift of a share of testator’s personal estate generally for life or widowhood with a gift over at the death or marriage of the life •tenant, the executory gift is valid.</p> <p>A gift for life of specific personal property with a gift over vests in first taker an absolute interest, except where it is of a chattel which may be used by the first taker without being consumed, when it is an executory devise, but the latter principle does not apply where the gift was of all of testator’s personal estate called “movable property,” and its character not shown.</p> <p>A will devising movable property to testator’s husband with gift over held valid as a gift over after a life tenant’s death, so that money in bank to life tenant’s credit, clearly realized from the sale of such personal property, belonged to beneficiaries under giver’s will.</p> <p>Where a will gave testator’s husband a life estate in her real property with power to sell timber for his support and for improving farm, and he sold the timber, placing the proceeds in the bank, where they remained at his death, her beneficiaries were entitled to such funds.</p> <p>An executory devise after a gift, with a general and absolute power of disposal, is void, but where a life estate is expressly given with the power of disposal for support of life tenant, or for specified purposes, a gift of what remains is valid.</p> <p>Where property has been sold by life tenant in execution of power of disposition for an authorized purpose, any proceeds, remaining unexpended at his death, go to remaindermen, and the absence of a gift over expressly of what remains does not justify a different conclusion.</p> <p>Where a testator left her husband a life estate in lands, with right to sell timber for his support and improvement of farm, a remainder of funds from timber sold left in the bank, though mingled with other funds of the life tenant, and a bond purchased with a portion of such funds, properly identified, • go to the remaindermen, and equity will disentangle the accounts.</p> <p>While beneficiaries might have enforced against the estate of life tenant their rights to the unexpended proceeds of the sale of timber authorized for tenant’s support and farm’s improvement, the administrator of the donor’s estate can collect the same for them.</p> <p>Where a proceeding by wife’s executor against husband’s executor was for the construction of the wife’s will, it is proper that the wife’s estate should bear the costs.</p>

Proceeding by the Delaware Trust Company against Elder and Company, in which a receiver was appointed for the defendant. Hearing on petitions by Cummings Machine Company and others for leave to take legal action against the receiver respecting machinery and equipment sold to the defendant.

Bill in Equity to obtain title to certain real estate which had been conveyed to Joseph Jackson Peirce, trustee, deceased, by William F. Nye, for purposes set forth in the declaration or deed of trust: The cause was heard on bill, amended bill, answer, •testimony of witnesses heard orally by the Chancellor and exhibits. The facts are sufficiently set forth in the opinion of the Chancellor.

After sustaining a demurrer to the original bill of complaint {ante p. 208, 1101 Atl. 669), an amended bill was filed, and the defendant has demurred. The facts pertinent to a determination of the questions raised by the demurrer appear in the opinion of the Chancellor.

Motion to Expunge From Bill Certain Allegations. The purpose of the bill was to compel conveyance of real estate which complainant had contracted to purchase from Joseph L. Carpenter, Jr., one of the defendants, and which had subsequently been conveyed to Joseph A. Vogel Company.

<p>Under Act approved April 21, 1919 (30 Del. Laws, c. 197, § 16), husband cannot answer for his wife in suits in equity against both, all prior rights and duties of husband respecting wifes’ appearance and answer being gone.</p> <p>A trustee in a declaration of trust, containing statements that cestui que trust paid the whole purchase price, that trustee had no interest in the premises, and would convey when and as demanded, is not estopped to deny delivery of the declaration, or that, "even if delivered, the enforcement thereof would work a fraud; and, even though delivered, it may be shown that the cestui que trust has not delivered certain notes to the trustee, who paid for the land and executed the declaration of trust with the understanding that such notes be surrendered to him.</p> <p>Estoppel should not be allowed to effect a fraud or imposition.</p>

This cause came before the Chancellor on a petition and motion by the complainant for leave to pay into court money due under a policy of insurance on the life of Robert L. Rodney, deceased. The facts are sufficiently set forth in the opinion of the Chancellor.

<p>Where legacies are given generally followed by a gift of the residue óf the estate, real, personal, and mixed, the legacies are charged upon the residuary real estate as well as the personal estate, where the latter at the date of the will is insufficient to pay the debts and legacies of the testator, and in such cases the real estate may be reached to pay the legacies, or so much thereof as the personal estate is insufficient to pay.</p> <p>In order to charge legacies upon residuary real estate, it was not necessary to show that at the date of the will the personal property of the testator was insufficient to pay his debts and legacies if such deficiency existed at the testator’s death; for a general gift of the residue of the testator’s estate imports a gift of what remains of his real and personal estate after debts and legacies are paid.</p>

Bill for Accounting. The bill seeks to recover from former officers and directors of a dissolved corporation, and others who had business transactions with said officers and directors, moneys and property alleged to be due said company. The cause was heard on bill, amended bill, answers, testimony of witnesses produced before and heard orally by the Chancellor and exhibits, and the facts are sufficiently stated in the opinion of the Chancellor.

Bill to Set Aside a Deed alleged to have been procured from Harriet A. Atkins by undue influence. The case was heard on bill, answer, testimony and exhibits, and the facts sufficiently appear in the opinion.

Bill for Specific Performance. The bill was filed by the vendor to require the vendee to specifically perform a contract to purchase real estate situate in the city of Wilmington, consisting of a lot of land at the southwest comer of Twelfth and Lincoln Streets, on which is erected a combined store and dwelling together with the store fixtures and stock of merchandise.

Bill to Enforce Liens. The bill seeks to enforce against two vessels liens acquired under the Statute of Maryland by those who furnished material and labor for the construction of the vessels. By the allegations of the bill it appears that the complainant, Obrecht, in January, 1919, furnished materials which went into O the construction of two Navy tugs being built by Eastern Shore Shipbuilding Company in its shipyard in Sharptown, Wicomico County, Maryland.

The plaintiff filed a bill in the Court below praying for a decree for specific performance by the defendant of an agreement signed by the latter November first, 1916, for the sale of a certain farm in New Castle County.

The complainant below was a creditor of the defendant below, and'filed a bill asking the appointment of a receiver because of the inability of the defendant below to pay its debts and meet its obligations as they mature in the regular course of business. An answer was filed by the defendant below denying the allegations of the bill upon which were based the prayers for a receiver.

<p>The Supreme Court ordinarily will not disturb a finding on the facts by the Chancellor, if it appears from the record that there was evidence to support the finding</p> <p>Refusal to reopen case and permit the .introduction of after-discovered evidence held not error, where much of the new evidence sought to be introduced was of a- cumulative character.</p>

The facts are stated in the report of the case in the Court below, ante p. 84, 106 Atl. 122, and a restatement of them here is unnecessary.

<p>The facts appear in the opinion of the court.</p>

Petition for Partition. In a cause in partition there was filed a petition by one not made a party to the cause claiming to have an interest and asking leave to intervene and be a party thereto, based on his interest.

Statement op the Case. George C. Pennewell, a son of the decedent, became administrator of the estate, and on July 26, 1916, filed an inventory of the personal property of the decedent appraised in the aggregate at $2,500.20. Of this sum the largest item was $2,000 for the stock of merchandise and fixtures-of the retail store of the decedent.

Petition for Partition. In this partition cause wherein there are three tenants in common together entitled to three parcels of land as remaindermen on the termination of a life estate, the respondent, J. Clarence Lank, filed a cross petition claiming that he lived with his mother, the life tenant, during her tenancy and made certain designated additions and improvements to tract number one, which were necessary, substantial, permanent and useful, made in good faith, and not…

Petition for Partition. The petition sets forth that Robert Sarde died in 1883 seized of two parcels of land in Kent County, described as No. * 1 and No. 2, and intestate as to them, leaving to survive him his widow, since deceased, and as his heirs at law four children, the three petitioners and the defendant.