Morrow's Estate, In re

Decision Date04 April 1966
Citation59 Del. 262,219 A.2d 137
Parties, 59 Del. 262 In the Matter of the ESTATE of Donald G. MORROW, Deceased. Orphans' Court of Delaware, New Castle County
CourtDelaware Family Court

William Poole, and Robert K. Payson, of Berl, Potter & Anderson, Wilmington, for petitioner-exceptant.

Clarence W. Taylor, of Hastings, Taylor & Willard, Wilmington, amicus curiae.

McNEILLY, Judge.

This is an appeal from a determination of the Register of Wills of New Castle County with respect to the First and Final Account filed with said Register by Ruth N. Morrow, Executrix and sole beneficiary under the Will of her deceased husband, Donald G. Morrow. It requires an interpretation of the power or authority of the Register on an accounting by an Executor to disallow the deduction of the payment in full of a debt which was owed by decedent and his wife at the time of his death as co-obligors.

An Order dated February 28, 1966 was filed by this Court on March 1, 1966 indicating that the Register had no power or authority to disallow such a debt, and this Opinion is written for the purpose of setting forth the reasons for that Order.

On June 27, 1950, decedent and his wife, Ruth N. Morrow, purchased a home in New Castle County, State of Delaware, as tenants by the entireties. At the same time they executed a Mortgage which was recorded as a lien against subject property and gave their bond as security therefor. Under the terms of this bond they became jointly and severally liable for the full amount of the indebtedness.

On February 19, 1964 the husband, Donald G. Morrow, died and his Will was probated in the Office of the Register of Wills in and for New Castle County on February 24, 1964. Under the terms of said Will, Ruth N. Morrow, the surviving spouse, was sole beneficiary and was appointed Executrix.

On July 9, 1964 the Executrix filed with the Register an inventory and appraisement of the assets and liabilities of the Estate. As an asset the entire appraised market value of the real estate was listed, and as a debt the entire balance due on the bond and mortgage was listed. The amount of this indebtedness subsequently was paid by the Executrix and was claimed as an allowance in the First and Final Account filed by her on February 23, 1965.

On March 1, 1965 the Register addressed a letter to the Executrix which reads as follows:

'This office will not approve the First and Final Settlement which you have submitted on the estate of Donald G. Morrow, deceased.

It is the policy of this office, as established by myself, as Register of Wills for New Castle County, to allow as a debt of the deceased only one-half of the balance of any mortgage owed on property held by the deceased and a surviving spouse as tenants by the entirety.

Therefore, before the account can be approved by this office, you must reduce the amount of the mortgage for which you crave allowance by one-half, and the amount of such reduction must be reflected by an increase in the closing costs which are due this office.'

It is from this disallowance by the Register of the full payment of the debt made by the Executrix that this appeal is before the Court.

There is no dispute that the balance due on the bond and mortgage in this case was a valid and enforceable debt against the estate. The Supreme Court of Delaware has held unequivocally that the estate of a deceased joint debtor is liable for the entire debt. In Keil v. Keil (1958) 1 Storey 351, 145 A.2d 563, 76 A.L.R.2d 996, Chief Justice Southerland said in his Opinion:

'A joint and several obligation of two parties, whether or not husband and wife, creates an obligation which is, on its face, for the benefit of both. Upon the death of one party his estate is still liable for the debt.'

The Register concedes this but in support of his position in allowing no more than one-half of the amount owed and paid as a deduction from the gross estate he relies upon the following language of Chief Justice Southerland in the same case:

'The question is this: If husband and wife jointly incur an indebtedness secured by a mortgage on property held as tenants by the entireties, and one spouse dies, is the estate of the decedent liable to contribute to the survivor one-half of the common debt? * * * And if the right of contribution, upon payment of the debt during the lifetime of both, is an attribute of the joint liability, we fail to see why it does not exist upon payment made after the death of one. The payment of the debt by the survivor is certainly a benefit to the estate because it discharges a liability of the estate. This is true whether or not there is any collateral in the hands of the creditor. Certainly if there were no collateral contribution would be allowed. And what of the case in which one obligor has pledged his own collateral for a joint debt? Unless his co-obligor is a mere accommodation maker, it is held that he is entitled to contribution. Commerce Union Bank v. Weis, 27 Tenn.App. 433, 181 S.W.2d 764. In such a case the co-obligor has no interest in the property--the collateral--but must contribute if the other obligor discharges the common liability.

A joint and several obligation under our law may be enforced by the creditor against both or either; but as between obligors each of them, in the ordinary case, is liable for one-half the debt.

In our opinion, a common interest in the land or property mortgaged or pledged for a joint debt is not the element that controls the right to contribution. The liability to contribution flows directly from the debt, and the mortgage is only the security for the debt.'

It is the contention of the Register that since the right of contribution exists it is an asset of the estate which an executor or administrator is bound to report and account for and for which the Register has the power, jurisdiction and duty to require an adjustment in the executor or administrator's account. I cannot agree, and in reaching this conclusion I am doing so entirely upon my interpretation of the powers and authority of the Register without any consideration being given to the question of contribution and the persons or parties who might be entitled to enforce or consider same.

Sections 31 and 32 of Art. IV of the Delaware Constitution of 1897, Del.C.Ann. as amended are as follows:

'Section 31. The Registers of Wills of the several counties shall respectively hold the Register's Court in each County. Upon the litigation of a cause the depositions of the witnesses examined shall be taken at large in writing and made part of the proceedings in the cause. This court may issue process throughout the State. Appeals may be taken from a Register's Court to the Orphans' Court. In cases where a Register of Wills is interested in questions concerning the probate of Wills, the granting of letters of administration, or executors' or administrators' accounts, the cognizance thereof shall belong to the Orphans' Court'.

'Section 32. An executor or administrator shall file every account with the Register of Wills for the County, who shall, as soon as conveniently may be, carefully examine the particulars with the proof thereof, in the presence of such executor or administrator, and shall adjust and settle the same according to the right of the matter and the law of the land; which account so settled shall remain in his office for inspection; and the executor, or administrator, shall within three (3) months after such settlement give notice in writing to all persons entitled to shares of the estate, or to their guardians, respectively, if residing within the State, that the account is lodged in the said office for inspection.

'Exceptions may be made by persons concerned to both sides of every such account, either denying the justice of the allowances made to the accountant or alleging further charges against him; and the exceptions shall be heard in the Orphans' Court for the County; and thereupon the account shall be adjusted and settled according to the right of the matter and the law of the land.

'The General Assembly shall have power to transfer to the Orphans' Court all or a part of the jurisdiction by this Constitution vested in the Register of Wills and to vest in the Orphans' Court all or a part of such jurisdiction.'

This language is substantially the same as the language in the Constitution of 1792 and all subsequent Constitutions of this State.

Surprisingly little material can be found in the cases, statutes or reference works which throw any light upon the exact nature of the office of the Register of Wills and the jurisdiction of the Register's Court. Even the historical approach does not give us a complete and full story of the creation of the office of the Register and his function and jurisdiction. Prior to 1704 the counties of 'New Castle, Kent and Sussex upon Delaware' were known as the territories of the Province of Pennsylvania, (Woolley, Delaware Practice, Vol. 1, Sec. 2, p. 2.) We must, therefore, look to the early Organic Laws of Pennsylvania to see if we can ascertain the nature of the office of the Register of Wills. Penn's Charter of Liberties, 1682, was followed by the Frame of Government of Pennsylvania, 1682, and the Laws Agreed Upon in England in 1682. Item XXII of the Laws Agreed Upon in England dated May 5, 1682 provides 'That there shall be a Register for births, marriages, burials, wills and letters of administration distinct from the other registry'. This is the first reference which can be found to an office for the registering of wills and testaments.

Judge Rodney's opinion in Wilmington Trust Co. v. Baldwin (1937) 8 W.W.Harr. 595, 195 A. 287, traces the history of the office of Register of Wills from this point as follows:

'Because the Constitution of 1792 (art. 6, § 17) first created the Register's Court and provided for the passing of executors' and administrators' accounts before the Register of Wills, it would seem logical to inquire as to the...

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4 cases
  • Whiteside's Estate, In re
    • United States
    • United States State Supreme Court of Delaware
    • 12 Agosto 1969
    ...a Court for certain purposes, and an accounting officer for other purposes. Robinson v. Robinson's Admr., 3 Har. 433; In Re Estate of Morrow, Orphans' Ct., 219 A.2d 137; 1 Wooley on Delaware Practice When performing his judicial functions, the Register constitutes a Court of limited jurisdi......
  • Rash v. C. & M. Corp.
    • United States
    • United States State Supreme Court of Delaware
    • 5 Abril 1966
  • Whiteside's Estate, In re
    • United States
    • Family Court of Delaware
    • 6 Diciembre 1968
    ...Harr. 433 (Ct. of Err. & App.1842); Wilmington Trust Co. v. Baldwin, 8 W.W. Harr. 595, 195 A. 287 (Super.Ct.1937); In Re Estate of Morrow, Del.Ch., 219 A.2d 137 (Orph.Ct.1966). But it is the plan of our Constitution that the Register of Wills can be given jurisdiction by the Legislature and......
  • Webb's Estate, In re
    • United States
    • Court of Chancery of Delaware
    • 1 Septiembre 1970
    ...specifics which fit the audit function of the Register when he examines an account: Was there a debt, was it paid? In re Estate of Morrow, Del.Orph., 219 A.2d 137 (1966). But as to commissions, the statute specifically says that these are deductible as 'allowed by Register of Wills'. Why is......

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