Walker v. Caldwell

• Court: Court of Chancery of Delaware
• Citation: 8 Del.Ch. 91,67 A. 1085
• Parties: WALKER et al. v. CALDWELL.
• Decision Date: 30 September 1896

67 A. 1085
8 Del.Ch. 91

WALKER et al.
v.
CALDWELL.

Court of Chancery of Delaware.

Sept. Term, 1896.

(Syllabus by the Court.)

Bill by Perry T. Walker and others, legatees under the will of Daniel Caldwell, deceased, against Daniel Caldwell, executor of Daniel Caldwell, deceased. Demurrer to the bill sustained, with leave to complainants to amend.

Bill in equity by legatees against an executor. The allegations of the bill, which was filed April 24, 1895, were as follows: Daniel Caldwell, late of Wilmington, died November 7, 1891, having first made his last will, which was duly proved and recorded in the office of

67 A. 1086

the register of wills for New Castle county in Will Record N, vol. 2, p. 411. He specifically bequeathed to the complainants certain moneys theretofore deposited in several banks in the city of Boston, Mass., in these words: "Item. I give and bequeath unto my two (2) sisters, Susan and Betsy, all of the interest of my money that is in the banks in Boston, Mass., and the entire principal of said money I give and bequeath to their children." The money so deposited was in the following banks: In his own name, individually, in the Five Cent Savings Bank, Suffolk Savings Bank, and Provident Institution for Savings; in the name of Daniel Caldwell, trustee for Richard Caldwell, in the Provident Institution for Savings. The money standing in the name of Daniel Caldwell, trustee for Richard Caldwell, amounted to $1,606.76, which was received by the respondent and by him deposited at interest in the Equitable Guarantee & Trust Company of Wilmington in his name as executor, where it still remained at interest. A schedule of the deposits of this fund in the Provident Institution for Savings was annexed to the bill, and showed that the first deposit was made November 9, 1842, for $223, and the second November 16, 1842, for $67, and the third and last November 30, 1842, for $200. After the additions of interest and the deduction of the amounts paid from time to time, there remained the said balance of $1,666.76, which was paid in full to the respondent as executor December 7, 1802. It was alleged that since the first deposit on November 9, 1842, there was no proof or record that the money so deposited or any interest thereon was ever paid to Richard Caldwell, or applied for his use and benefit; and since that time neither Richard Caldwell, the cestui que trust, nor any one having a just and legal claim under him, had ever come forward to ask or demand the said trust fund, and there had been found no proof of his existence. The complainants Anabella Ross and Mary E. Sturms were children of the testator's sister Betsy, and under the laws of the state of Delaware the distributees of her intestate property. The complainants Susan Burford, Ailsie Ann Jefferson, and Perry T. Walker were children of the testator's sister Susan, and by the laws of Delaware the distributees of her intestate property. James H. Walker, a son of the said Susan, was living at the time of the death of Daniel Caldwell, and was therefore one of his legatees; but he had since died, and by will named the complainant Susan Burford, his sister, as his sole legatee. The respondent was named as sole executor of the testator, Daniel Caldwell, and he, as executor, had received and paid over to the complainants, under the terms of the will, all the moneys deposited in said banks in Boston, except those deposited in the Provident Institution for Savings in the name of Daniel Caldwell, trustee for Richard Caldwell. The complainants frequently requested the payment by the respondent of the moneys so deposited in the name of Daniel Caldwell, trustee for Richard Caldwell, but such payment has been and still is refused. In addition to the prayers for answer, subpoena, and further relief, the bill prays "that the said Daniel Caldwell, executor as aforesaid, be decreed to pay over unto your orator and oratrixes the just and full sum of said moneys so coming into his hands as aforesaid, together with all interest thereon which has accrued since it has come into his possession."

To this bill the respondent, on February 27, 1896, demurred, alleging for cause: (1) That the complainants had a plain and adequate remedy at law. (2) That it appears by the bill that Richard Caldwell, the cestui que trust of Daniel Caldwell, deceased, is a necessary party to the bill, but neither he, nor any personal representative, is named as a party. (3) That the complainants have not made or stated such a case as entitled them, or any of them, to any relief with respect to the matters contained in the bill. The case was heard on demurrer at the September term, 1896,

Thomas F. Bayard, Jr., for complainants. Charles W. Smith, for defendant.

THE CHANCELLOR (after stating the facts as above). The bill was filed by the legatees under the will of Daniel Caldwell, deceased, for the purpose of obtaining a decree of this court requiring Daniel Caldwell, executor of the said Daniel Caldwell, deceased, to pay over to them certain moneys which had been deposited in 1842 by the said testator in the Provident Institution for Savings, in the city of Boston, in the name of Daniel Caldwell, trustee for Richard Caldwell, which, with interest, amounted to $1,666.70, when it came into the hands of Daniel Caldwell, the said executor. The respondent filed his demurrer to the bill, stating as his first cause of demurrer that the complainants had a plain and adequate remedy at law; it being urged by counsel for the respondent that the enactment of statutory remedies in America and the establishment of statutory courts of probate have either taken away the jurisdiction of courts of equity over administration suits, or rendered them practically obsolete, so that the jurisdiction will not be exercised, unless rendered necessary by some of the special heads of equity jurisprudence, such as fraud, etc.

It will not be necessary to go outside of this jurisdiction to find decisive authority for the determination of the questions raised by this first ground of demurrer. It is, of course, not denied by counsel for the respondent that at common law it was a very important part of the exclusive jurisdiction of the English Court of Chancery to hear and

67 A. 1087

determine suits for the recovery of legacies and for distributive shares of the personal property of an intestate, and, when the jurisdiction of the High Court of Chancery in Great Britain was conferred upon the colonial courts of common pleas by our early colonial statutes, this became an important part of their exclusive jurisdiction, and so continued to be until jurisdiction was given by act of March 31, 1764 (1 Del. Laws, p. 408, c. 183), to the courts of common law to entertain a suit against an executor for a legacy due. This act, passed during the term of John Penn as lieutenant governor of the colony, clearly recognized the existing jurisdiction of the Court of Chancery, reciting that: "Whereas, the proceedings in the courts of chancery, within this government, for the recovery of legacies are tedious and expensive." It then enacted that, "from and after the publication of this act, it shall and may be lawful for any person or persons, to whom any legacy, or bequest of any sum or sums of money, or other goods or chattels, have been, or may be, made, by the last will and testament of...