Ferris v. Ferris

• Decision Date: 25 July 1916
• Court: Court of Chancery of Delaware
• Parties: ANNA M. FERRIS, (JR.), Administratrix cum testamento annexo of the Estate of Anna M. Ferris, deceased, v. MATILDA FERRIS, ANNA M. FERRIS, (JR.), EDITH FERRIS, KATHERINE LINCOLN FERRIS, WILLLIAM CANBY FERRIS, HENRY FERRIS, ALFRED J. FERRIS, WALTER FERRIS, FRANCES CANBY FERRIS, CHARLES HALLOWELL, Administrator of Fanny F. Hallowell, deceased, BENJAMIN FERRIS, MARY H. PRICE, WILLIAM FERRIS, JR., DEBORAH F. BLACKBURN, ANNIE HAYFORD FERRIS HODGE, MARGARET FERRIS KEGLE, GEORGE A. FERRIS, MATLIDA FERRIS, Executrix of David Ferris, deceased, ANNA M. FERRIS, (JR.), Executrix of William Ferris, deceased, and EDWARD FERRIS

98 A. 215

11 Del.Ch. 171

ANNA M. FERRIS, (JR.), Administratrix cum testamento annexo of the Estate of Anna M. Ferris, deceased, v. MATILDA FERRIS, ANNA M. FERRIS, (JR.), EDITH FERRIS, KATHERINE LINCOLN FERRIS, WILLLIAM CANBY FERRIS, HENRY FERRIS, ALFRED J. FERRIS, WALTER FERRIS, FRANCES CANBY FERRIS, CHARLES HALLOWELL, Administrator of Fanny F. Hallowell, deceased, BENJAMIN FERRIS, MARY H. PRICE, WILLIAM FERRIS, JR., DEBORAH F. BLACKBURN, ANNIE HAYFORD FERRIS HODGE, MARGARET FERRIS KEGLE, GEORGE A. FERRIS, MATLIDA FERRIS, Executrix of David Ferris, deceased, ANNA M. FERRIS, (JR.), Executrix of William Ferris, deceased, and EDWARD FERRIS

Court of Chancery of Delaware, New Castle

July 25, 1916

BILL FOR CONSTRUCTION OF WILL and order of sale of real estate. Anna M. Ferris by will directed her executors to pay her debts, made several specific bequests, and "all the rest and residue" of her estate she gave, devised and bequeathed to her two sisters, Deborah Ferris and Martha Ferris, and the survivor, for life. Item 4th was as follows:

"And after the deaths of my sisters Deborah Ferris and Martha Ferris it is my will that the property herein bequeathed to them shall be disposed of as follows:"

Then follow several gifts of money aggregating eighty-four hundred dollars, each containing the words "I give and bequeath." Item 11 provides as follows:

"And whatever residue may remain after all debts and legacies have been paid, except such items of personal property as may be mentioned in this will or otherwise hereafter I give and bequeath in equal portions to my brothers, David Ferris William Ferris, and Edward Ferris, and if either of my said brothers should be deceased at the time of my death, and the distribution of the said residue, it is my will that his portion hereof shall go to his widow if living."

Executors were appointed, but no power was expressly given to them to sell any property. At the date of the will the testatrix had a life estate in certain real estate, a small amount of personal property and an undivided one-third interest in a lot of land and store building in Wilmington. At her death she still owned an undivided interest in the Market Street property and her personal estate. After deducting debts funeral expenses and specific legacies, her personal estate amounted to $ 328.01, which was insufficient to pay legacies aggregating eighty-four hundred dollars. The testatrix, Anna M. Ferris, died November 17, 1890, and Deborah Ferris and Martha Ferris, her sisters, survived her, and the former died March 10, 1897, and the latter June 6, 1912.

The complainant represented that the legatees claimed that their pecuniary legacies were charged on the real estate, and that the complainant as administrator d. b. n. c. t. a. had power to sell the land and from the proceeds of sale pay the legacies. Instructions were therefore asked. Not only were all the legatees made parties defendant, but also all persons who would be either devisees, or, in case of intestacy, her heirs at law.

Some of the defendants answered admitting substantially the allegations of the bill, and as to the others a decree pro confesso was taken. In their answer the heirs at law and devisees submitted themselves to the decision of the court and the cause was heard on bill, answer, and testimony of witnesses taken before an examiner.

Decree entered declaring the legacies charges on the land and authorizing and directing the administratrix c. t. a. to sell and convey the same, to be followed by an order for the application of the proceeds of sale to payment in whole, or in part, pro rata of the legacies.

John P Nields, for the complainant.

Benjamin Nields, for the defendants.

OPINION

THE CHANCELLOR

A precedent of the learned Chancellor Bates may well be followed in deciding this case, and in Rambo, Exr., v Rumer, et al., 4 Del.Ch. 9 (1866), there is such a precedent. By will Rumer directed the payment of his debts by the executor; made several pecuniary legacies, each preceded by the words "I give and bequeath," two of the legacies being charged on the land; and then said: "As to the balance of my estate, if there be any I give and bequeath," etc. At his death the testator owned only one parcel of real estate, and his personal estate was insufficient to pay his debts. The executor by bill asked instructions; that the legacies be charged on the land; and for an order for the sale of it to pay the debts and then the legacies. The defendants to the bill were the legatees and the heirs at law were not included. Chancellor Bates found that all the legacies were charged on the real estate, considering that the gift of the balance of his estate made the whole estate, real and personal, an entire fund for all the purposes of the will, including payment of both debts and legacies, the residuary legatee being entitled to what remained after payment of the debts and legacies. For this conclusion he relied on authorities submitted by Mr. T. F. Bayard, which are set out in the report. But according to the Chancellor a charge of legacies on land does not impliedly carry to the executor the power to raise them by sale of it. There is no ground of necessity out of which such a power must be implied. The charge creates a right in the legatee which he can readily enforce in his own name by a direct proceeding in equity, without the intervention of the executor. For this position the Chancellor said he had found no authority, except that he had found no case where such an order had been given. He said, however, that if the holders of the legal title had been made parties to the cause they would have been bound by it. He stated that of course the Court of Chancery had no power to order a sale to pay debts--a matter solely within the jurisdiction of the Orphans' Court, and his suggestion was that the conversion take place there. Later the owner of the legal title was made a party defendant by amendment, and thereupon, according to the report, a decree was made for the executor to sell the land in aid of the personal estate.

It will be readily seen the will of Anna M. Ferris even more clearly indicated an intention to charge the legacies on the land than in Rambo v. Rumer. After making certain specific bequests in the second item, the testatrix by the third item gave all the residue of her estate to two sisters for life, with survivorship, and then provided that all the residue so given to them "shall be disposed of." And further, as the most important feature in this respect after giving several pecuniary legacies, she gave to three brothers whatever residue should remain after the...