Downs v. Casperson
| Decision Date | 23 March 1934 |
| Citation | 20 Del.Ch. 119,171 A. 753 |
| Court | Court of Chancery of Delaware |
| Parties | MARGARET C. DOWNS, Executrix of the Estate of Anna Virginia Vining, v. NELLIE M. WEBB CASPERSON, VIVIAN CASPERSON, E. DORIS BICKING, WILLIAM H. ELICOTT, JANE MCCAUGHN, MAUDE WILHELM, also known as Mrs. Deleany Wilhelm, MARGARET MCCAUGHN, EMILY WHITE, also known as Mrs. James White, MARGUERITE WATTS, also known as Mrs. Ralph Betts, and JOHN Y. ELKINTON |
Edmund S. Hellings, for complainant.
Albert W. James, for Jane McCaughn.
Francis deH. Janvier, for John Y. Elkinton.
The will and codicil which this case brings before the court are plainly of the home-made variety.
The will is as follows:
The codicil is as follows:
It is to be noted that whereas the will is dated December 4, 1931, the codicil appears on its face to antedate the principal instrument by about eight years. The codicil has however, been duly probated with the will before the Register of Wills in New Castle County. Probably proof was taken that the date of the codicil was erroneously stated. At all events it was duly probated by a court of proper jurisdiction. That being so it cannot be collaterally attacked. St. James' Church v. Walker, 1 Del.Ch 284; Pennel's Lessee v. Weyant, 2 Del. 501, 2 Harr. 501; Smith's Lessee v. Redden, 5 Del. 321, 5 Harr. 321. The executrix should therefore consider the codicil as a part of the will.
One question upon which the executrix wishes to be advised is as to the meaning of the fourth paragraph of the will. That clause follows after three pecuniary legacies had been bequeathed. It reads, "To Wm. H. Elicott what remains after my expenses are met." The question is propounded--does that clause mean that Wm. H. Elicott is to receive the entire estate that remains after the debts and the three preceding legacies are paid? If so, the legacies mentioned in the fifth and sixth items as well as the legacies mentioned in the codicil were all provided for by the testatrix with full knowledge on her part that nothing could possibly be available for their payment. An intention of that sort would be absurd.
It cannot be assumed that the testatrix made merely a pleasant verbal gesture towards the legatees mentioned in the sixth item of her will. She intended the legacies there given to be enjoyed if the condition of her estate permitted.
A reconciliation of item fourth with the rest of the will is accomplished if that item is allowed to stand as a general residuary clause. The fact that a clause which is residuary in character is not placed in its logical position at the end of the will, is of no moment. It was so held by this court in Small, Ex'r., v. Adams, et al., 17 Del.Ch. 316, 154 A. 473. The clause in question must be held as a general residuary one. Upon no other theory can the will in all of its parts be reconciled and absurdity avoided.
Finally, what is the meaning of the codicil? Its language is--"I desire Mrs. J. Downs give Mrs. Ralph Watts $ 200, and John Y. Elkinton, $ 500." Mrs. Downs was both a legatee named in the will in the amount of one thousand dollars and the executrix.
Conceding the word "desire" to be dispositive in meaning, if Mrs. Downs was personally to supply, or as the codicil says "give," the two legacies of two hundred dollars and five hundred dollars out of her own...
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