In re Petition of Andrews

• Decision Date: 13 November 1943
• Citation: 42 Del. 376,34 A.2d 700
• Parties: In the Matter of the Petition of HARRY ANDREWS' ADMINISTRATRIX to sell land for the payment of debts
• Court: Delaware Superior Court

34 A.2d 700

42 Del. 376

In the Matter of the Petition of HARRY ANDREWS' ADMINISTRATRIX to sell land for the payment of debts

Superior Court of Delaware, Sussex County

November 13, 1943

Superior Court for Sussex County, No. 24, February Term 1943.

This is an appeal by the First National Bank of Frankford, from a decision of the Orphans' Court of Sussex County, ordering that the appraised value of the right of dower of Mae Andrews, the widow of the decedent, be paid to her.

The facts of the case are briefly these: On November 30, 1940 two judgments by confession were entered in the Superior Court for Sussex County, in favor of The First National Bank of Frankford, against the decedent, Harry Andrews, and Mae Andrews, his wife, for the sums of $ 600.00 and $ 349.39 with a credit on the later judgment of $ 75.00.

Harry Andrews died on or about May 22, 1941, intestate, leaving to survive him a widow, the said Mae Andrews, to whom letters of administration on his estate were granted. On November 15, 1941, upon the petition of the administratrix the Orphans' Court ordered that certain real estate of which the decedent died seized be sold for the payment of his debts. By her petition the administratrix, as widow of the decedent, waived an assignment of her dower by metes and bounds, and elected to take in lieu thereof an equivalent share of the proceeds of the sale. Upon the return and confirmation of the sale of the real estate, the right of dower of the widow was appraised at the sum of $ 527.17, and this amount the Orphans' Court directed to be paid to her.

The amount applied on account of the judgments from the proceeds of the sale left a balance due on the judgments in excess of the appraised value of the right of dower. It is the contention of The First National Bank of Frankford that the sum of $ 527.17, the appraised value of the right of dower, should have been ordered paid to it on account of the balance due on its judgments.

Order of the Court affirmed.

Tunnell and Tunnell for the First National Bank of Frankford.

Howard W. Bramhall for Mae Andrews.

LAYTON C. J., SPEAKMAN and TERRY, J. J., sitting.

OPINION

SPEAKMAN, J.

The question for determination is whether the widow of a decedent, who dies intestate, is, upon her petition, entitled to receive the appraised value of her dower interest in the real estate of which her husband died seized, where the real estate has been ordered to be sold by the Orphans' Court, free and discharged of such dower interest, or whether such appraised value should be paid to a judgment creditor of the widow.

The Orphans' Court has general jurisdiction in all cases where a widow may be entitled to dower, to cause it to be assigned, laid off, secured and invested (3783, Code of 1935), and where in a proceeding brought in said Court, for the sale of real estate which is the subject of dower, as is the case here, the Court may, upon petition by the widow, direct such real estate to be sold free and discharged from the dower interest, and that such dower interest be appraised and paid to the widow out of the proceeds of the sale, in lieu and bar of her dower. (3783, Code of 1935)

Whether the Orphans' Court has the power and jurisdiction to determine the particular question in this case was raised by the appellant herein in the Court of Chancery in the case of First Natl. Bank v. Andrews, (Del. Ch.) 26 Del.Ch. 344, 28 A.2d 676, 677. In that case it was one of the contentions of the complainant that "under the practice long established in the Orphans' Court, the complainant will not be permitted to assert its rights as a judgment creditor 'to the prejudice of the common law and statutory rights of Mae Andrews, widow of the deceased.'"

The decided cases in this State have held that when the Orphans' Court acquires jurisdiction in any proceeding, although it can take jurisdiction originally only under an express provision of a statute or constitutional grant, once that jurisdiction is acquired, it can and should exercise such powers, equitable or legal, and apply such principles as may be incidental or necessary to completely determine the matter before it. The Delaware cases are referred to and commented on by the Chancellor in First Natl. Bank v. Andrews, supra, and we do not deem it necessary to add to what was there said. The Chancellor's conclusion was that the fund in question is in the control of the Orphans' Court, and can only be distributed pursuant to its order, and in view of its equitable powers the contentions of the claimants to the fund can be considered by that Court.

The controversy in this case arises out of the conflicting contentions of the claimants as to the interpretation of the provisions of an act approved in 1929 (Chap. 269, Vol. 36) amending Chap. 133 of the Revised Code of 1915, relating to executions. By the Act the first and fifty-fourth sections of said Chap. 133 were amended (4320 and 4373, Code of 1915). Section 4320 of the Code of 1915, as amended, is 4792 of the Code of 1935. It reads as follows:

"Lands, tenements and hereditaments and all right of dower and curtesy therein when no sufficient personal estate can be found may be seized and sold upon judgment and execution obtained."

By the amendment the words "and all right of dower and curtesy therein" were incorporated into the section.

The other section which was amended (4373, Code of 1915), provided, in part, that:

"Real estate sold by virtue of execution process shall be discharged from all liens thereon against the defendant * * * except [certain liens created by mortgage] * * *."

By the amendment there was added to the section the following:

"And said real estate shall also be discharged from all right of dower and curtesy therein of any defendant in said execution."

This section, as amended, is 4831 of the Code of 1935.

The appellant suggests that the amendment (Chap. 269, Vol. 36) "places a widow's dower rights in exactly the same position as the husband's fee simple absolute title has previously been, causing the dower, after it had become vested in the widow, to be subject to the lien of a judgment entered against her."

In Delaware it has long been settled that a money judgment is a lien upon the real estate owned by the defendant at and after the time of its entry. State, to Use of Vickory. v. Vickory, 1 Harr. 193. The lien attaches because of the right of the creditor to take the land in execution. Brinckloe v. Brinckloe, 2 Early Del. Cas. 628, 1 Harr. 508; Griffin v. Reece, 1 Del. 508, 1 Harr. 508; Flanagin v. Daws, 7 Del. 476, 2 Houst. 476; Ex parte Dixon, 1 Del. Ch. 261, 12 Am. Dec. 92; Hagan et al. v. Chapman, 17 Del. 445, 1 Penne. 445, 41 A. 974; Woolley on Del. Prac. 564.

Dower after assignment is subject to levy and sale, Woolley on Del. Prac. 707, and the same is true as to curtesy consummate. In Evans v. Lobdale, 11 Del. 212, 6 Houst. 212, 22 Am. St. Rep. 358, the Court of Errors and Appeals, in referring to the rights at common law of a husband in his wife's lands, said:

"The rights of the husband could be assigned by him to a purchaser, were liable for his debts, and could be seized and sold on execution by his creditors, and were therefore subject to the lien of any judgment that might be recovered against him."

The rights referred to by the Court consisted, not only of the estate of curtesy consummate, but also of the freehold interest in the wife's lands by right of the wife and the estate by the curtesy initiate in her lands on the birth of a child.

The husband's freehold jure uxoris and tenancy by the curtesy initiate, however, were abolished by the passage of the Married Women's Acts (Chap. 550, Vol. 14, and Chap. 165, Vol. 15), leaving only tenancy by the curtesy consummate remaining. Evans v. Lobdale, supra. In brief, by the Married Women's Acts, the husband's freehold estate in possession during coverture in his wife's lands was destroyed. The contingent interest that he has in her lands upon marriage which may thereafter ripen into an estate by the curtesy consummate, and thereupon become liable for his debts, still remains. This contingent interest, during coverture, we think might properly be referred to as the inchoate right of curtesy.

So, as the freehold estates of tenancy in dower and by the curtesy consummate could be seized and sold upon judgment and execution obtained at the time of the passage of the amendment (Chap. 269, Vol. 36), we can infer that it was not the intention of the Legislature to authorize something to be done as a result of an amendment which could have been done notwithstanding the amendment. We think that the phrase "all right of dower and curtesy therein" means rights of dower and curtesy other than dower after assignment and curtesy consummate.

Prior to the amendment of 1929 (Chap. 269, Vol. 36) a widow's right of dower before assignment could not be taken in execution, Graham v Moore, 5 Del. 318, 5 Harr. 318; Hagan et al. v. Chapman, 17 Del. 445, 1 Penne. 445, 41 A. 974, and the same can properly...