Wilmington Trust Co v. Pryor

• Decision Date: 21 April 1942
• Citation: 25 A.2d 685,26 Del.Ch. 191
• Court: Court of Chancery of Delaware
• Parties: WILMINGTON TRUST COMPANY, a corporation of the State of Delaware and TILGHMAN JOHNSTON, Trustees under the Last Will and Testament of REBECCA T. CANBY, deceased, v. JAMES LEE PRYOR

25 A.2d 685

26 Del.Ch. 191

WILMINGTON TRUST COMPANY, a corporation of the State of Delaware and TILGHMAN JOHNSTON, Trustees under the Last Will and Testament of REBECCA T. CANBY, deceased, v. JAMES LEE PRYOR

Court of Chancery of Delaware, New Castle

April 21, 1942

BILL FOR THE SPECIFIC PERFORMANCE OF A CONTRACT, in which the defendant agreed, in writing, to purchase certain lands and premises from the complainants, as trustees.

Case heard on demurrer to the complainants' amended bill.

The facts will appear in the opinion of the court.

Demurrer overruled.

Charles F. Richards, for complainants.

Howard A. Miller, for defendant.

OPINION

THE CHANCELLOR:

The complainants, as trustees, seek to compel the defendant to comply with his contract to purchase certain real estate in the City of Wilmington. The question raised by the demurrer is whether "a good and marketable, fee simple title" can be conveyed by the complainants in accordance with their contract.

Rebecca T. Canby, late of the City of Wilmington, bequeathed and devised the residue of her estate to the Wilmington Trust Company and Tilghman Johnston, the complainants, in trust. She expressly authorized them

"* * * To grant, bargain, sell and dispose of all, or any part of the real estate which I may own or in any way be interested, and for that purpose I hereby authorize the said Trustees to execute any and all necessary deeds in fee simple, to the purchaser or purchasers of said real estate clear of all Trusts, * * *; upon any such sale being made, I authorize the said Trustee to invest the monies, so received and treat the same as part of the said Trust Estate * * *."

This provision is in terms absolute and unconditional, and applies to "all or any part of the real estate" which the testatrix owned, or in which she might be in any way interested. Moreover, any sale made is to be "clear of all Trusts."

In a subsequent paragraph of the same item of her will, Mrs. Canby directed her trustees:

"To pay over to my daughter, Jane T. Canby, and to expend for her benefit the sum of Fifteen Hundred ($ 1500.00) Dollars per annum, the same to be used in providing a home and maintenance for her during her life time; and should it become necessary during her life time to expend a larger sum than the said Fifteen Hundred ($ 1500.00) Dollars per annum, in order to give my said daughter perfect comfort and care, then I authorize and empower my said Trustees to expend and pay out such additional sum or sums * * *."

The same item also contains the further provisions:

(1) "I desire the said Trustees to allow the use of my household goods, pictures, etc. to my daughter, Jane T. Canby, during her lifetime."

(2) "I desire the said Trustees to allow my daughter, Jane T. Canby, the use and occupation of my residence * * * for a home, free of any charge for rent or taxes or charges of any kind, as long as she may desire to live there; * * *."

The only real estate which the testatrix owned at the time of her death on June 26th, 1925, and at the time of the execution of her will on May 22nd, 1924, was her residence in the City of Wilmington and an undivided interest in three small houses in the City of Philadelphia, Pennsylvania.

At her death, her residence was valued for tax purposes at $ 15,000; her interest in the Philadelphia properties was likewise valued at $ 500.00. By contract entered into on the Eighteenth day of November, 1941, the complainants agreed to sell, and the defendant agreed to purchase, the late residence of Mrs. Canby for $ 7500.00.

On September 7th, 1941, pursuant to the certificate of two physicians, Jane T. Canby was committed to the State Hospital at Farnhurst, for lunacy, and is still there under treatment for that disease. On December 19th, 1941, a trustee was appointed for her by this court. It appeared from an affidavit filed in that proceeding by the physician in charge of the State Hospital that Jane T. Canby was then suffering from a form of insanity known as epileptic psychosis. The complainants also allege on information and belief that she is incurable. The trustee appointed by this court has not been authorized to sell any right or interest that Jane T Canby may have in the property covered by the contract of sale, and is not a party to this proceeding. The defendant claims that notwithstanding the absolute and unconditional power of sale given the trustees, Jane T. Canby has either an equitable estate for life, or some lesser possessory right, in the property which he has agreed to purchase; and that the complainants as trustees under the will of Rebecca T. Canby, therefore, cannot convey "a good marketable, fee simple title" thereto, in accordance with their contract. His theory is that the language "I desire the said Trustees to allow my daughter * * * the use and occupation of my residence * * * as long as she may desire to live there; * * *" is used in a dispositive and testamentary sense, and that the trustees are bound thereby. I am unable to agree with that contention. As I view it, Rebecca T. Canby merely expressed a wish that her trustees "allow" her daughter "the use and occupation" of her residence "as long as she may desire to live there." Nothing more than a mere request or wish, binding no one, seems to have been intended. The use of the permissive, and frequently discretionary word "allow" (3 C.J.S., Allow, p. 888), in connection with the words "I desire" seems to corroborate this conclusion. Moreover, it is apparent that the word "desire" in the latter part of the sentence, is used in the sense of "wish." In the absence of other explanatory language, the natural inference, therefore, is that that word has the same meaning throughout the sentence. State v. Highfield, 4 W. W. Harr. (34...