Cooper v. Bishop
| Citation | 163 A. 644,19 Del.Ch. 98 |
| Court | Court of Chancery of Delaware |
| Decision Date | 04 November 1932 |
| Parties | JEFFERSON COOPER, Executor of John H. Bishop, deceased, v. EMMA D. BISHOP, MARGARET LEANERD, LEWIS LEANERD, JR., ELIZABETH ANDERSON, ALLENA KNOTTS, LILLIE M. COOPER, AND LAURA HARRINGTON |
BILL FOR INSTRUCTION by Jefferson Cooper, as executor under the last will and testament of John H. Bishop, deceased, against Emma D. Bishop and others. Decrees pro confesso were taken against all of the defendants except Emma D. Bishop, widow of the testator, who filed an answer setting forth her contention with respect to the question on which instructions were sought. Heard on bill and answer of Emma D. Bishop.
George C. Hering, Jr., of the firm of Hering & Morris, for complainant.
Edmund S. Hellings, for Emma D. Bishop.
The will of the testator need not be set out in full. In items three, four, five, six and eight it makes specific devices of parcels of real estate to the testator's wife and four living children respectively. Item seven bequeaths pecuniary legacies of two thousand dollars to each of the testator's two grandchildren, children of a deceased daughter, stating that the amount so given represented what the testator had intended to leave to his deceased daughter had she lived.
Having made these dispositions, the will then proceeds as follows:
The testator's personal estate at the time of his death amounted to only a little over six hundred dollars.
In addition to the real estate specifically devised by items three, four, five, six and eight, the testator died seised of three other parcels.
By virtue of the authority conferred by item nine of the will the executor sold the three parcels just referred to realizing therefor $ 2,477.42. The balance now remaining in the hands of the executor awaiting distribution is the sum of $ 754.41.
The particular question upon which instructions are sought is whether the balance in hand should be applied pro tanto to the legacies of two thousand dollars each to the grandchildren, or whether it should be paid to the widow and four children.
The four children have suffered decrees pro confesso to be entered against them, evidently taking an attitude of indifference toward the matter. The widow, however, has answered and asserted a claim that the balance in hand is payable to her and the children, each taking a one-fifth.
It is apparent that the balance in hand springs from the proceeds of the sale of real estate authorized by the ninth item of the will. The solicitors for the executor, who have filed the only brief in the cause, advance the view that this balance is payable on account of the legacies to the grandchildren. They cite Walters v. Young, et al., 12 Del.Ch. 297, 114 A. 164, in support of that view. But that case is not at all analogous in principle to this one; for in that case the question was whether a general legacy is chargeable on land, where there is a general residuary clause in which real and personal property are mingled, unpreceded by any disposition of real estate. Where such is the case, it is well settled in this State that the legacy is chargeable on residuary real estate. Not only does Walters v. Young so hold, but so also do University of Delaware, et al., v. Equitable Trust Co., et al., 18 Del.Ch. 335, 160 A. 754; Hilford, Adm'r., v. Way, 1 Del.Ch. 342; Rambo, Ex'r., v. Rumer, et al., 4 Del.Ch. 9; and Rice v. Rice 12 Del.Ch. 245, 111 A. 439. In all of these cases there was no devise of real estate preceding the operation of a residuary clause. In that particular, the instant case, if it were a case involving the charging of a legacy upon land, would be distinguishable, for here there are several devises of real estate preceding the so-called residuary clause. Whether this distinguishing particular is of importance as might be argued from the observations of Chancellor Bates in Rambo, Ex'r., v. Rumer, et al., I am not called upon to say, for as hereinafter stated, it is a mistaken view to take, that the question which this will presents is whether general pecuniary legacies are chargeable upon real estate found commingled with personalty in the residue....
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