Equitable Trust Co. v. Marshall

• Citation: 25 Del.Ch. 238,17 A.2d 13
• Court: Court of Chancery of Delaware
• Decision Date: 31 December 1940
• Parties: EQUITABLE TRUST COMPANY, a corporation of the State of Delaware, Executor of the Last Will and Testament of WILLIAM MARSHALL, deceased, v. ANNIE HIRST MARSHALL, CHARLES HIRST MARSHALL, and THE TRUSTEES OF THE PROTESTANT EPISCOPAL CHURCH OF THE DIOCESE OF DELAWARE, a corporation of the State of Delaware

17 A.2d 13

25 Del.Ch. 238

EQUITABLE TRUST COMPANY, a corporation of the State of Delaware, Executor of the Last Will and Testament of WILLIAM MARSHALL, deceased, v. ANNIE HIRST MARSHALL, CHARLES HIRST MARSHALL, and THE TRUSTEES OF THE PROTESTANT EPISCOPAL CHURCH OF THE DIOCESE OF DELAWARE, a corporation of the State of Delaware

Court of Chancery of Delaware, New Castle

December 31, 1940

BILL TO CONSTRUE THE LAST WILL AND TESTAMENT of William Marshall deceased; and, also, for instructions to the complainant, the executor therein named, with respect to the proper distribution of the decedent's property.

The defendants filed answers to the complainant's bill, and the case was heard on those pleadings and on an agreed statement of facts.

William Marshall died on April 12th, 1937, a resident of the town of Faulkland, New Castle County, Delaware. Prior to his death he had executed a paper writing, dated December 14th, 1927 which purported to be his last will and testament, and in which he named the complainant, the Equitable Trust Company his executor. After his death, that instrument was duly proved and allowed as his last will and testament before the Register of Wills for New Castle County, and the executor therein named qualified as such on or about the twentieth day of April, 1937, and letters testamentary were duly issued to that corporation.

The last will and testament of the deceased, among other things provided:

"Item two. I give and bequeath unto The Trustees of The Protestant Episcopal Church of the Diocese of Delaware' a corporation of the State of Delaware, securities I may own at the time of my death amounting to the sum of Seven Thousand Dollars ($ 7,000.00). In Trust, and to be known as The Mary A. Marshall Trust Fund,' with authority to call in, invest and reinvest the same from time to time as may become necessary or desirable, and to pay over the net income and interest arising from the principal of said trust fund to the Treasurer of the Committee of St. Barnabas Protestant Episcopal Church, situate at Marshallton, Delaware, so long as it shall continue as an organized Mission, and should it be organized as a Parish, then to be paid over to the proper officers of the Parish or Church, and to be used in payment of general Parish or Church expenses; provided that if said Mission or Parish, as the case may be, shall for any reason be abandoned, and it becomes impossible to apply the income from said trust fund as above provided; in that event I direct my Trustees to apply the income from said trust fund to furthering the work of Domestic Missions in the State of Delaware."

After disposing of certain personal articles and household furnishings in "Item Three," "Item Four" of that instrument provided:

"All the rest, residue and remainder of my estate, real, personal and mixed of every kind or nature and wherever the same may be found at the time of my death, I give, devise, and bequeath, unto my niece, Annie Hirst Marshall, and my nephew, Charles Hirst Marshall, their heirs and assigns, to have and to hold to them the said Annie Hirst Marshall, and Charles Hirst Marshall, their heirs, executors, administrators and assigns, in equal parts, share and share alike forever."

At the time of the testator's death, in addition to certain household goods, of the appraised value of $ 177.25, he owned other personal property, appraised as follows: Jewelry, $ 2; cash on hand and in bank, $ 130.78, and various shares of corporate stock, $ 5,012.50. The dividends receivable on that stock amounted to $ 28, and oil well royalties, then due and payable, amounted to $ 93.66.

The testator, also, owned certain real estate which, at the time of his death, was valued at $ 2,000, but which was subsequently sold for $ 2,500. In addition to the above mentioned personal and real property, the testator also owned at the time of his death certain oil, gas and other mineral royalty interests in lands situated at various places in the States of Kansas, Oklahoma and Texas, which were represented by twelve instruments of writing, some of which were designated as "Mineral Deeds" and others as "Sale of Oil and Gas Royalties." These instruments of writing came into the possession of the executor at the time of its appointment and qualification as such, and were still in its possession at the time this suit was brought, but were not included in the inventory because of a question whether the interests evidenced thereby were personal property. Other facts, with respect to the terms of these instruments, will appear in the opinion of the Chancellor.

Charles F. Richards, of the firm of Richards, Layton & Finger, for complainant.

Alexander L. Nichols, (of the office of Hugh M. Morris), for trustees of Protestant Episcopal Church of Delaware.

Harold B. Howard, of the firm of Hering, Morris, James & Hitchens, for Annie Hirst Marshall and Charles Hirst Marshall.

OPINION

THE CHANCELLOR:

This is a bill to construe the last will and testament of William Marshall, deceased; and, also, for instructions to the executor therein named, with respect to the proper distribution of the property of the decedent.

Item two of his will gave and bequeathed "unto The Trustees of The Protestant Episcopal Church of the Diocese of Delaware' * * *, securities I may own at the time of my death, amounting to the sum of Seven Thousand Dollars ($ 7,000.00). In trust, and to be known as The Mary A. Marshall Trust Fund,' * * *."

In the same item, the trustees of the Protestant Episcopal Church were given authority "to call in, invest and reinvest the same from time to time as may become necessary or desirable." The precise purpose of that trust appears in the statement of facts preceding this opinion, but it is not material to the decision of this case.

At the time of the testator's death he owned certain shares of corporate stock having an appraised value of $ 5,012.50. He was, also, the assignee or grantee in certain so-called "Mineral Deeds" and in certain instruments designated as "Sale of Oil and Gas Royalties"; all of which he had acquired some years after the execution of his will. The value of these various property rights or interests does not appear, but if they can be classed as "securities," it is conceded that they must be assigned and delivered to the trustees of the Protestant Episcopal Church in partial satisfaction of the legacy bequeathed to them by item two of the testator's will. But whether they are "securities," or whether they are mere interests in real estate, and, therefore, pass under the residuary clause of his will is the question to be determined.

Strictly and technically, the word "security," when used in connection with matters of a pecuniary nature, may, perhaps mean "that which renders a matter sure; an instrument which renders certain the performance of a contract." 2 Bouv. Law Dict., (Rawle's Third Rev.) p. 3032. In discussing the meaning of that word, the statement is made in Black's Law Dictionary that "the term is usually applied to an obligation, pledge, mortgage, deposit, lien, etc., given by a debtor to make sure the payment or performance of his debt by furnishing the creditor with the resource to be used in case of failure in the principal obligation." Strictly construed, originally the kindred word "securities" was, therefore, primarily "a general term for written assurances for payment of money; evidences of debt." Abbott's Law Dict. In other words, the strict primary meaning of that word was at one time confined to a secured obligation or promise to pay of some nature, and did not include either corporate stocks or mere debentures. Scott on Trusts, 1228; Restatement Law of Trusts, Vol. 1, p. 657; In re Waldstein, 160 Misc. 763, 291 N.Y.S. 697. But at the present day, by common usage, the word "securities," though standing alone and unaided by the context of the instrument in which it is used, has acquired a broader and more general meaning, and is frequently used as synonymous with words which originally may have had quite a different meaning. Fidelity Union Trust Co. v. Lowy, 123 N.J.Eq. 90, 196 A. 369; In re Vanderbilt's Estate, 132 Misc. 150, 229 N.Y.S. 631; City Bank Farmers Trust Co. v. Lewis, 122 Conn. 384, 189 A. 178; 2 Schouler on Wills, (6th Ed.) 1288; 56 C. J. 1279, 1282. In this connection, Mr. Schouler aptly says: "Present usage gives (to that word) a generous scope far beyond its literal meaning." 2 Schouler on Wills, (6th Ed.) 1288, supra. Modern dictionaries have recognized this change in the meaning of the word "securities," and have defined it as "an evidence of debt or of property, as a bond, a stock certificate or other instrument, etc.; a document giving the holder the...