Wilmington Trust Co. v. Baldwin

• Decision Date: 01 November 1937
• Citation: 38 Del. 595,195 A. 287
• Court: Delaware Superior Court
• Parties: WILMINGTON TRUST COMPANY, Administrator of Charles E. Van Ostrand, deceased, appellant, v. DAISY L. BALDWIN, appellee. In the matter of the Estate of CHARLES E. VAN OSTRAND, deceased

195 A. 287

38 Del. 595

WILMINGTON TRUST COMPANY, Administrator of Charles E. Van Ostrand, deceased, appellant, v. DAISY L. BALDWIN, appellee. In the matter of the Estate of CHARLES E. VAN OSTRAND, deceased

Superior Court of Delaware, New Castle County

November 1, 1937

Superior Court for New Castle County, No. 187, November Term 1936.

On April 6, 1933, there was approved an act of the Legislature authorizing decrees of distribution in connection with the settlement of personal estates. This act was Chapter 184 Vol. 38, Laws of Delaware (Section 3867, Revised Code 1935). This statute was as follows:

"An executor or administrator or any person claiming to have an interest in the estate to be distributed may, at any time after any account has been filed by an executor or administrator, apply for a decree of distribution to the Register of Wills, who shall, if it appear to the Register that the estate or any part thereof may then be distributed make such a decree determining the distribution of the estate then available for distribution to the person or persons who are by law entitled to the same. If it appear that a portion of the estate may then be distributed and the balance of the estate is reserved for contingent liabilities against the estate, such decree may, if the Register deem proper, determine the distribution of such balance if and to the extent that the same may thereafter become available for distribution. Upon the making of any decree of distribution, the Register shall order notice of the making of such decree to be posted in the County Court House in the County where the decedent resided at the time of his death and published in such newspaper or newspapers, at such intervals, not less frequently than once a week, and for such period, not less than three weeks, as he may designate in such order, and if the provisions of such order be complied with such decree of distribution shall become final and conclusive upon the executor or administrator, legatee, distributees and all persons, other than creditors of the deceased, claiming to have an interest in the distribution of the estate with respect to all matters contained therein, unless within two months after the first notice shall have been published, as aforesaid, an appeal from such decree be taken to the Superior Court. In cases where the Register is personally interested in the estate or portion thereof to be distributed under such decree, the word 'Register' wherever used in this section shall be interpreted as meaning 'Orphans' Court.'"

Because of its later materiality, attention is now called to the fact that no notice is required by the statute prior to the entry of the decree.

On March 27, 1936, there was adopted by the Register's Court a rule prescribing procedure in proceedings for a decree of distribution. This rule required notice of the application for decree of distribution.

On July 27, 1936, Daisy L. Baldwin, sister of the whole blood of the decedent, made application for a decree of distribution and notices were directed in accordance with the rule.

The Wilmington Trust Company, administrator of Charles E. Van Ostrand, filed an answer to the petition, in which certain facts were admitted, but in which answer legal defenses were made attacking the constitutionality of the statute. Grover C. Foglesong, a half brother of the decedent, also received notice of the hearing and, while not present, filed an affidavit setting forth his relationship to the decedent and claiming an interest in the estate.

On Sept. 10, 1936, the hearing was had before the Register of Wills. The Register of Wills overruled the legal defenses interposed by the answer of the administrator and made an order that the petitioner, Daisy L. Baldwin, should immediately receive One hundred thousand dollars ($ 100,000.00) in cash and, after the payment of the remaining liabilities that the balance of the estate should also be distributed to the said Daisy L. Baldwin.

On November 9, 1936, appeal was entered both by Wilmington Trust Company, the administrator, and by Grover C. Foglesong, a claimant.

Eleven causes of appeal were relied upon by each appellant, but for the purposes of the present discussion three only will be considered. These contentions are

1. That the Statute is unconstitutional in that it purports to confer upon a Register of Wills a judicial power not authorized by the Constitution of Delaware.

2. That the statute confers no jurisdiction on the Register's Court.

3. That the statute is unconstitutional because it fails to provide any notice to interested parties or opportunity to be heard before the entry of the decree of distribution.

Judgment of the Register of Wills reversed and set aside the decree of distribution.

Richards, Layton and Finger for Wilmington Trust Company, Administrator, appellant.

Albert L. Simon for Grover C. Foglesong, appellant.

Hugh M. Morris and G. B. Pearson, Jr., for Daisy L. Baldwin, appellee.

RODNEY and SPEAKMAN, J. J., sitting.

OPINION

RODNEY, J.

1. Is the statute (Section 3867, Revised Code 1935) unconstitutional in that it purports to confer upon the Register of Wills a judicial power not authorized by the Constitution? The answer to the question is difficult and a satisfactory conclusion may only be reached at the expense of desirable brevity.

The only applicable provisions of the present Constitution (1897) are Article 4, §§ 33 and 34, as follows:

"Section 33. 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 Superior Court, whose decision shall be final. 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, with an appeal to the Superior Court, whose decision shall be final.

"Section 34. 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 proofs 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 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 exception 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 law of the land."

In no other section except the Schedule is there pertinent reference to the Register of Wills or of the Register's Court.

Detailed consideration of the foregoing sections will not be indulged in because the Constitution by Section 10 of the Schedule says "Unless otherwise provided, the Registers' Courts and the jurisdiction of the Justices of the Peace shall not be affected by this amended Constitution." This does not mean that a consideration of the Register's Court is to be made entirely exclusive of the Constitution of 1897, for such a construction would entirely nullify Section 33, as above quoted. It does mean that "unless otherwise provided" the Register's Court would remain as it theretofore had been. Sections 33 and 34 of Article 4 of the Constitution of 1897 are substantially the same, respectively, as Sections 22 and 21 of Article 6 of the Constitution of 1831. To that Constitution we then look. In addition to the sections just cited (Art. 6, §§ 21 and 22) we find Section 6 of the Schedule, as follows:

"Sec. 6. The registers' courts and justices of the peace shall not be affected by any amendments of the constitution made in this convention; but the said courts and the terms of office of registers and justices of the peace shall remain the same as if said amendments had not been made."

While the language of this section differs from the section in the Schedule of the Constitution of 1897, the effect, we think, is the same. The Constitution of 1897 was largely (and expressly) an amendment of the Constitution of 1831, just as that in turn was an amendment of the Constitution of 1792. The provisions concerning the Register's Court and the passing of executors' and administrators' accounts before the Registers of Wills originated in the Constitution of 1792, and little change was made by the later Constitutions of 1831 and 1897. It is true that the Constitution of 1831 changed the name of the court to which appeals should be made from a Register's Court, but this was merely because of a change in the nomenclature of the courts. An amendment was made by the Constitution of 1831 concerning the hearing in the Orphans' Court of exceptions to an administrative account as passed before the Register of Wills. This however, is not here material and the purpose of the amendment is set forth in Harkers Debates of the Convention of 1831, at page 229. The cited sections of the Schedules of the Constitutions of 1897 and 1831 tended to preserve...