Rauhut v. Reinhart
| Decision Date | 04 October 1935 |
| Citation | 180 A. 913,22 Del.Ch. 431 |
| Court | Court of Chancery of Delaware |
| Parties | MAX K. RAUHUT v. ANNA L. REINHART, Executrix of LENA M. RAUHUT, deceased |
EXCEPTIONS TO ACCOUNT of an Executrix. Anna L. Reinhart as Executrix of Lena M. Rauhut, deceased, passed and filed, on August 4th, 1931, what purported to be a final account in the estate in the office of the Register of Wills in and for New Castle County in which, inter alia, she charges herself as executrix with the sum of Five Hundred Twenty-one Dollars and Four Cents. This sum of money is one-half the proceeds of a certain mortgage of One Thousand Dollars and interest which stood in the names of Lena M. Rauhut and her husband, Julius W. Rauhut. Julius W. Rauhut predeceased his said wife, he dying on the Eighteenth day of September, A. D. 1927. By his last will and testament he left substantially all his real and personal estate to his wife, Lena M. Rauhut. A final account in his estate, dated August 4th, 1931, which is in evidence in this case, sets out assets of Five Hundred Twenty-one Dollars and Four Cents, which purport to be the proceeds of a one-half interest in the said mortgage of One Thousand Dollars.
Anna L Reinhart is the daughter of Julius W. Rauhut and Lena M Rauhut and is the executrix of her mother's estate and the administratrix c. t. a. of her father's estate.
The mortgage of One Thousand Dollars covered a property in the City of Wilmington known as No. 7 Fifth Avenue.
On the twelfth day of April, A. D. 1929, letters testamentary were granted to Anna L. Reinhart, the executrix named in the will of her mother, Lena M. Rauhut. On the fourth day of August, A. D. 1931, a final account was passed by the executrix showing assets of Five Hundred Twenty-one Dollars and Four Cents, being proceeds of a one-half interest in said mortgage of One Thousand Dollars covering property No. 7 Fifth Avenue. The final account is in evidence and shows no money received from a bank account as mentioned in the will of Lena M. Rauhut. To this final account Max K. Rauhut has filed a petition urging two exceptions, which may be briefly summarized as follows:
First. That the executrix of Lena M. Rauhut erred in that she should have charged herself as executrix with the full amount of the proceeds of the said One Thousand Dollar Mortgage made to Lena M. Rauhut and her husband, Julius M. Rauhut, covering No. 7 Fifth Avenue, which amounted, at the time of the settlement of the estate, to the sum of One Thousand Forty-two Dollars and Eight Cents, instead of charging herself with only one-half the amount, namely, Five Hundred Twenty-one Dollars and Four Cents;
Second. That the executrix of Lena M. Rauhut erred in that she failed to charge herself with certain sums of money, alleged to amount to the sum of Four Thousand Dollars, which sums at the time of the death of Lena M. Rauhut, were in two savings banks in the City of Wilmington and were held in the names of Lena M. Rauhut and Anna L. Reinhart jointly, and which sums of money (the petition alleges) were the sole property of Lena M. Rauhut.
The petitioner, Max K. Rauhut, further prayed that the executrix be surcharged with, first--Five Hundred Twenty-one Dollars and Four Cents, and second--the sum of Four Thousand Dollars with interest.
Robert G. Harman, for exceptant.
Albert W. James, for defendant.
OPINION
At the hearing of the cause testimony was taken, certain exhibits were admitted in evidence and the deposition of Anna L. Reinhart was, by agreement, also admitted in evidence.
Taking up the first exception. There was no conflict of testimony as to the matters set out in the first exception. I find that Julius W. Rauhut and Lena M. Rauhut were husband and wife and in their lifetime were the joint holders of the title to a mortgage of One Thousand Dollars covering the property No. 7 Fifth Avenue. In the mortgage Julius W. Rauhut and his wife, Lena M. Rauhut, appear as mortgagees with no qualification upon their estate or interest in the mortgage. The petitioner, Max K. Rauhut is the son of Julius W. Rauhut and Lena M. Rauhut. In his petition he claims that the interest in the One Thousand Dollar mortgage was held by his parents as tenants by the entirety and that the right of survivorship is an incident of this tenancy just as at common law the right of survivorship is an incident of tenancy by entirety of real property.
The defendant, Anna L. Reinhart, is a daughter of Julius W. Rauhut and Lena M. Rauhut and executrix of the estate of Lena M. Rauhut. She claims that there can be no tenancy by entirety in personal property and therefore there can be no incident of the right of survivorship therein. She further claims that the husband and wife held title to the mortgage in question as tenants in common and upon the death of Julius W. Rauhut one-half of the proceeds of the mortgage became a part of his estate and should be accounted for as such by his administratrix.
The question then is whether words which create an estate in a husband and wife by the entirety if used in repect to real estate, would create a similar interest in them if the subject matter be personalty, so that when one dies the survivor will become entitled to the whole in right of his or her survivorship.
On this question there is much conflict of authority. In our Court of Chancery Chancellor Wolcott in the case of Ciconte v Barba, 19 Del.Ch. 6, 161 A. 925, had under consideration a similar question. The facts were that title to a piece of real estate was held by husband and wife. The real estate was sold, and a purchase...
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