Bruno v. President, Directors And Company of Farmers Bank

• Citation: 29 Del.Ch. 87,46 A.2d 549
• Court: Court of Chancery of Delaware
• Decision Date: 03 April 1946
• Parties: MARIA BRUNO, ROBERT VALDESERE, LUCY DROKOPEL, FRANKLIN BRUNO, and JOSEPH BRUNO, v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE FARMERS BANK OF THE STATE OF DELAWARE, Executor and Trustee under Will of ARMEDO VALDESERE, JOHN EMORY BRUNO, ARTHUR VALDESERE, PATRICIA CROKOPEL, and IRENE GEORGE, CECIL LAMBERT

46 A.2d 549

29 Del.Ch. 87

MARIA BRUNO, ROBERT VALDESERE, LUCY DROKOPEL, FRANKLIN BRUNO, and JOSEPH BRUNO, v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE FARMERS BANK OF THE STATE OF DELAWARE, Executor and Trustee under Will of ARMEDO VALDESERE, JOHN EMORY BRUNO, ARTHUR VALDESERE, PATRICIA CROKOPEL, and IRENE GEORGE, CECIL LAMBERT

Court of Chancery of Delaware, Kent

April 3, 1946

John B. Hutton, for complainants.

George M. Fisher, for respondent Farmers Bank.

OPINION

SEITZ, Vice-Chancellor.

The following provisions of the will of Armedo Valdesere are pertinent to the issues to be decided here:

"Item 4: All the rest, residue and remainder of my estate, real personal and mixed wheresoever same may be situated or located, and whatsoever same may consist, of which I may die seized and possessed or to which I may be entitled at the time of my decease, I order and direct to be converted into money as soon after my decease as can conveniently be done and for that purpose I hereby authorize, empower, and direct my Executor, hereinafter named, to sell at either public or private sale or sales and at such time or times and for such price or prices as may seem to it the best interest for my estate and by proper deed or deeds, conveyances, assignments or assurance in the Law to be duly executed, acknowledged and perfected to grant, convey, assign, and assure the same to the purchaser or purchasers thereof in fee simple, without liability on the part of the purchaser or purchasers for the application, non-application or mis-application of the purchase money, and when my said estate shall have been converted into money as aforesaid I give and bequeath all of the same unto the President, Directors and Company of the Farmers Bank of the State of Delaware of Dover, Delaware, its successors and assigns, In Trust, Nevertheless, to invest the same in some good and safe interest bearing securities, or just mortgages on land, with power to call in and reinvest the same, and the interest or income arising therefrom, after deducting reasonable compensation for services to pay over semi-annually, from the day of my death to my children,namely; Maria Bruno, Robert Valdesere, Irene George, Margarita Lambert, and Lucille Drokopel, and to the survivor of them, in equal shares and as Francolin Bruno Joseph Bruno, John Emory Bruno, Arthur Valdesere, Joseph Valdesere, and Patricia Drokopel respectively arrive at the age of twenty-one years then their equal portion or share of said principal sum shall be paid unto them within six months from their majority, freed, and discharged from any Trust, whatsoever.

"Item 5: Any rest and remainder of my estate, real, personal or mixed, I give, bequeath and devise unto my grandchildren, Francolin Bruno, Joseph Bruno, John Emory Bruno, Arthur Valdesere, Joseph Valdesere, and Patricia Drokopel, their heirs and assigns, forever."

It will be seen that by Item 4 of his will, after devising his property in trust for the benefit of his children, the testator, Armedo Valdesere, provided, in effect, that as each of his six named grandchildren in turn reached the age of twenty-one years a one-sixth interest of the trust corpus should be paid outright by the trustee to such grandchild.

By item 5 of the will, the language of which amounts to a residuary clause, the testator bequeathed the remainder of his estate to the same six named grandchildren.

One of the grandchildren named in the will, Joseph Valdesere, predeceased the testator, and in fact died a minor without issue before the will was executed.

Two of the grandchildren, Francolin (Franklin) and Joseph Bruno, have now arrived at the age of twenty-one years, and the question arises on this bill for the construction of the testator's will as to what share of the corpus shall be paid to each of them. Of course, each is entitled to a one-sixth share and the controversy centers around the one-sixth interest which was left to the deceased grandchild.

One preliminary matter requires attention. It is arguable that Item 4 and Item 5 should be considered together, because Item 4 nowhere purports to bequeath any interest to the grandchildren but merely provides when the interest, presumably given elsewhere, shall vest in possession. However, because of the conclusions hereinafter reached with respect to Item 5, it is not important to consider whether or not Item 4 purports to bequeath any interest to the grandchildren. It will be assumed, therefore, that Item 4 does purport to convey such interest, and it will be further assumed that the void bequest to the deceased grandchild (Doe ex dem. Hearn v. Cannon, 4 Houst. 20, 25) falls into the residuary clause (Item 5) in the same manner as a lapsed legacy. See Lodge v. Grubb, 15 Del.Ch. 105, 132 A. 142, 143.

It is clear then that unless the share of the deceased grandchild passed pursuant to the language of Item 5, it did not pass under the will at all but constituted intestate property. By this, of course, I do not mean that the share of the deceased grandchild is not trust corpus so long as the trust itself exists.

Let us examine Item 5 of the will which gives, bequeaths, and devises the remainder of the estate to the testator's "grandchildren, Francolin Bruno, Joseph Bruno, John Emory Bruno, Arthur Valdesere, Joseph Valdesere, and Patricia Drokopel, their heirs and assigns, forever." Does the share of the deceased grandchild, Joseph Valdesere, as provided for in Item 5 pass pursuant to the language of that Item to the other grandchildren in equal shares so as to constitute a portion of the share which each grandchild takes outright from the trust corpus upon reaching the age of twenty-one years, or will the share be divided among them when the last one reaches the age of twenty-one years, or finally, is this Item without effect as to such share? An answer to these questions requires an answer to the following question: What is the effect of a void legacy given in the residuary clause where there are other residuary legatees?

In 4 Page on Wills (Permanent Edition) § 1436, the rule in this situation is stated as follows:

"If the void legacy or devise is given by a residuary clause, and there are no other gifts and no other residuary legatees or devisees, the gift must necessarily descend as intestate property. Even if there are other residuary legatees or devisees, the void legacy or devise descends as intestate property, and does not pass to the other residuary legatees or devisees, in the absence of words in the will which show testator's intention to the contrary; and of a statute which applies to such a case."

In Lodge v. Grubb, supra, the Chancellor had before him the following residuary clause:

"'All the rest, residue and remainder of my estate, I give, devise and bequeath to the persons herein named as pecuniary legatees, and to their heirs, executors, and administrators, to be divided among them pro rata according to the amounts of money herein respectively given and bequeathed to them, and I further devise that in the event of my estate not being sufficiently large to pay all the pecuniary legacies herein bequeathed in full, then all the said pecuniary legacies shall be abated pro rata.'"

In considering the facts before him, as they related to the quoted residuary clause, the Chancellor said:

"The questions presented...