Bank of Delaware v. Bancroft
| Decision Date | 30 July 1970 |
| Citation | 269 A.2d 254 |
| Parties | BANK OF DELAWARE, Trustee under the Will of John Bancroft, Plaintiff, v. Esther BANCROFT, Pauline Bancroft Chadwick, Frederika B. Evans, Frances B. Bancroft, A. Gordon Matthews, Carol Jane Bancroft, Lynn duPont Bancroft, and William John Bancroft, Defendants. |
| Court | Court of Chancery of Delaware |
Richard P. Beck, of Morris, James, Hitchens & Williams, Wilmington, for plaintiff.
Edward W. Cooch, Jr., of Cooch & Taylor, Wilmington, for defendant Esther Bancroft.
Robert W. Wakefield, of Walker, Miller & Makefield, Wilmington, Guardian Ad Litem for Carol Jane Bancroft, Lynn duPont Bancroft, and William J. Bancroft.
MARVEL, Vice Chancellor:
Bank of Delaware, co-trustee under the will of John Bancroft, seeks instructions on the question as to whether or not a successor trustee for John Bancroft, Jr., its deceased co-trustee, should be appointed.
The will of John Bancroft contained provisions for the creation of two trusts for which John Bancroft, Jr. and the Equitable Trust Company (now the Bank of Delaware) were named as co-trustees. The first trust provided for a life estate for each of the testator's three children, John, Jr., Pauline, and Esther. Upon the death of the last child of John Bancroft, the will directed that the trust principal should be then distributed among the testator's grandchildren. The second trust provided for a life estate for testator's daughter, Esther, and for the distribution of trust property upon such life tenant's death to her children. No express provision was made in the will here in issue for the appointment of a successor trustee for John Bancroft, Jr. on the event of his death during the existence of such trusts and no intention can be gathered from the four corners of such will that one should be appointed. There is, however, provision made for the distribution of John Bancroft, Jr.'s share of the trust, upon his death. Thus, his possible death during the lifetime of the trusts was contemplated.
The issue thus presented for decision is whether or not the Bank of Delaware may take title to all of the John Bancroft trust property as sole surviving trustee.
It is settled law in Delaware and elsewhere that where there is no express testamentary direction that a successor trustee is to be appointed to succeed a deceased co-trustee the property so placed in trust comes under the exclusive jurisdiction of the surviving trustee who may thus administer the trust as sole trustee without the need of having a successor trustee named. In re Burr's Will, 12 Del.Ch. 102, 107 A. 449. See generally, 90 C.J.S. Trusts § 258; Vol. II, Scott on Trusts (3rd Ed.) §§ 103, 103.1. This rule, however, is admittedly derived from cases in which the trustees § 258; Vol. II, Scott on Trusts (3rd Ed.) to corporations.
Under the common law a corporation was deemed incapable of holding property as a joint tenant, 1 and, theoretically, cotrustees hold property as joint tenants, this being the relationship which creates the rights of the surviving trustee. See Buckley v. R. H. Johnson & Co., 2 Terry 546, 41 Del. 546, 25 A.2d 392, and Cohen v. Krigstein, 10 Terry 256, 49 Del. 256, 114 A.2d 225. And the common law rule that a corporation may not hold property as a joint tenant has never been expressly repealed by statute in Delaware.
Plaintiff contends, however, that such rule has been impliedly repealed, at least as to trust companies acting in their capacity as trustees, by the Delaware statutes pertaining to banking found in 5 Del.C.Ch. 7. The legislature, in granting powers to trust companies, has provided under the terms of 5 Del.C. § 765, as follows:
'In the case of a corporation established as a trust company under this chapter, the powers conferred by section 761 of this title shall include the right or power to be appointed * * * trustee * * * under the same circumstances, in the same manner, and subject to the same control by the court having jurisdiction of the same, as a legally qualified individual.'
The test for determining whether or not a rule of law has been impliedly revoked or repealed by statute is a strict one in that a showing of...
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