O'Donnell v. O'Donnell

• Decision Date: 09 July 1920
• Citation: 12 Del.Ch. 222,110 A. 670
• Parties: FRANK P. O'DONNELL and DANIEL I. O'DONNELL, Executors of the Last Will and Testament of John P. O'Donnell, deceased, v. MARY A. O'DONNELL GALLAGHER, WILMINGTON TRUST COMPANY, Guardian of John D. O'Donnell, FRANK P. O'DONNELL and DANIEL I. O'DONNELL
• Court: Court of Chancery of Delaware

110 A. 670

12 Del.Ch. 222

FRANK P. O'DONNELL and DANIEL I. O'DONNELL, Executors of the Last Will and Testament of John P. O'Donnell, deceased, v. MARY A. O'DONNELL GALLAGHER, WILMINGTON TRUST COMPANY, Guardian of John D. O'Donnell, FRANK P. O'DONNELL and DANIEL I. O'DONNELL

Court of Chancery of Delaware, New Castle

July 9, 1920

BILL FOR CONSTRUCTION OF WILL. The bill is for the construction of the will of John P. O'Donnell, late of Wilmington, which is as follows:

"Dispensary of the Hospital of the University of Pennsylvania,

"Thirty-Fourth and Spruce Streets.

"30th August, 1918.

"John P. O'Donnell manifested his will, that all his personal property should be given to his brothers and sisters. The house 304 S. Jackson is to be given to his son John D O'Donnell, when same reaches the age of 21 (twenty one) years. Furthermore that Frank P. O'Donnell is appointed administrator of John D. O'Donnell's property, until John D. O'Donnell reaches the age of 30 (thirty) years i. e. that Frank P. O'Donnell should assume tutorship until he reaches the said age. Furthermore that Daniel I O'Donnell and Frank P. O'Donnell should be administrators of his property, real & personal. Furthermore that Daniel I. O'Donnell should be manager of the personal business of John P. O'Donnell located at 510 Market Str. It is John P. O'Donnell's desire that no bond or security should be required of the administrators.

"John P. O'Donnell."

On September 3, 1918, four days after making the will, the testator died, and his will was duly probated and letters testamentary thereon were granted to Frank P. O'Donnell and Daniel I. O'Donnell. The testator, a widower, left to survive him one child, John D. O'Donnell, a minor, and also one sister, Mary A. O'Donnell Gallagher, and two brothers, Frank P. O'Donnell and Daniel I. O'Donnell the two brothers being the executors. Wilmington Trust Company is the guardian of the minor.

The value of the personal estate of the decedent was $ 9,389.53 and his debts, exclusive of the expenses of administering his estate exceeded $ 30,000. A portion of his real estate was sold by order of the Orphans' Court for the payment of his debts, and after paying his debts and administration expenses the executors have in hand, according to the first and final account, $ 28,898.15, the personal estate and proceeds of the sale of the real estate being treated as a common fund.

It was shown by testimony that there was no change in the quantity or condition of his estate between the date of the will and his death. Also that he was not the owner of 304 South Jackson street, mentioned in the will, but was a tenant thereof for life by the curtesy.

There being a question as to the testamentary intention respecting the gift of the personal estate, the executors asked instructions whether the whole balance should be paid to the guardian, or an amount equal to the value of the personal estate should be paid to the sister and brothers of the deceased. The guardian of the minor and the sister and brothers were made parties defendant, and have answered the bill. For the minor child it was claimed that the personalty was under the law applicable first to the payment of debts and as the debts exceeded the personalty nothing passed to the brothers and sister; while on the other hand the brothers and sister claim that the personal estate was exonerated from payment of debts of the decedent, who well knew the character and amount of his assets and liabilities and the disparity between his debts and his personal estate; and that the value of the personal estate is payable to them under the legacy thereof to them.

The cause was heard on bill, answer and oral testimony of witnesses.

Personal estate of the decedent was the primary fund for paying debts of the decedent, and as the proceeds thereof was applied to the payment of his debts, the gift of the personalty failed and the whole of the balance in the hands of the executors is due and payable to the guardian of John D. O'Donnell, and none of it to the brothers and sister of the testator.

James I. Boyce, for brothers and sister.

Aaron Finger, for minor child.

OPINION

THE CHANCELLOR

The main question in the case is whether the testator by a gift of all of his personal property to his brothers and sister exonerates such property as an asset for the payment of his debts, it being shown by evidence that at the time of making his will his personal estate was to a large degree insufficient to pay his debts and his real estate ample for the purpose, and no change in this condition of his estate had occurred at his death four days after making his will.

There is in the will no evidence of testamentary intention to alter the established rule which makes the personalty the primary fund for the payment of debts of the decedent, or to exonerate the personalty, or charge the realty. It was not so expressly provided there. Indeed, there is no mention of debts in the will. The only evidence of intention to exonerate the personalty must be found, if there be such intention, as an inference from facts extrinsic the instrument. It was not claimed that the gift of all of his personal property was a specific legacy, and entitled to be exonerated as specific legacies are. The gift of "all of his [my] personal property," where there are in the will no expressions that require a different construction, mean simply the balance of the personal estate that should be left after the payment of the debts of the testator and other legal charges such as those of burial and of administration. Miller v. Cooch, 10 Del. 540, 5 Houst. 540, 1 Am St. Rep. 161, in the Court of Errors and Appeals. The specific question is this: Does the clear insufficiency of his personal property presumably well known to the testator show of itself an intention either to exonerate the personalty from the payment of his debts, or charge payment thereof entirely on his real estate?

It has been held in some states of this country that where there is a paucity of personalty to pay pecuniary legacies this may be considered as evidence of an intention to impose payment thereof on real estate of the decedent. Among others are these: McCorn v. McCorn, 100 N.Y. 511, 3 N.E. 480; Ely v. Megie, 219 N.Y. 112, 113 N.E. 800; Price v. Price, 52 N.J.Eq. 326, 29 A. 679; Bragaw v Bolles, 51 N.J.Eq. 84, 25 A. 947; Estate of Marie P. Lutz, 157 Mo. 439, 57 S.W. 1018, 50 L. R. A. 847...