SAUNDERS et al.
The complainant, Leander L. Saunders, filed his bill below praying
(1) For an order restraining the respondent, Alice M. Saunders, his daughter, from entering certain safe deposit boxes (Nos. 792 and 2837) located in the Wilmington Trust Company, Wilmington, and from assigning, removing or in any way disposing of the contents thereof.
[31 Del.Ch. 515] (2) For an order compelling the respondent, Alice M. Saunders, to return to the complainant certain valuables belonging to him and alleged to have been wrongfully removed by her from one of the boxes aforesaid.
(3) For an order enjoining the respondent, the Wilmington Trust Company, custodian of said boxes, from permitting the respondent, Alice M. Saunders, to enter or have access to said boxes pending the disposition of this cause.
The complainant alleges that for many years prior to the death of his wife they maintained jointly a safe deposit box, No. 792, in the Wilmington Trust Company; that after the death of his wife in 1944 he gave to his daughter, Alice M. Saunders, one of the respondents, access to the box, and that sometime unknown to him between the year 1944 and the filing of the bill below on October 8, 1947 she removed certain valuables belonging to the complainant from his safe deposit box, No. 792, and transferred them to another box, No. 2837, in the Wilmington Trust Company, to which she alone had access; that the valuables as indicated consist of five thousand dollars in cash, two thousand dollars in War Savings Bonds, twenty-five shares of American Telephone and Telegraph Company stock and fifty dollars in gold coins.
It is further alleged that the gold coins had been collected by the complainant's wife during her lifetime and given to the complainant prior to her death; that the coins are cherished keepsakes, and, as such, have a unique and sentimental value to him which cannot be measured in terms of money.
The Chancellor granted the restraining order as prayed for and simultaneously ordered the issuance of a rule directed to both respondents to appear before him at a subsequent date and show cause, if any, why a preliminary injunction should not issue (1) restraining the respondent, Alice M. Saunders, from entering the boxes aforesaid and from assigning, removing or in any way disposing of the [31 Del.Ch. 516] contents thereof, and (2) restraining the respondent, the Wilmington Trust Company, during the pendency of this action, from permitting the respondent, Alice M. Saunders, to enter or have any access to the said boxes unless upon his order.
The Chancellor designated certain dates and ordered the parties to file their affidavits on or before the expiration thereof.
In her answer to the bill the respondent, Alice M. Saunders, admits that during the year 1944 the complainant gave to her access to his safe deposit box No. 792, located in the Wilmington Trust Company and containing all of the items alleged in the complaint. She further admits of having removed during 1944 the items as alleged from the complainant's box, No. 792, and having placed them in box No. 2837, which she leased from the Wilmington Trust Company and to which she alone has access. She avers, however, that all of the items taken by her from the complainant's box, No. 792, are her property, but that she stands ready and willing to deliver the gold coins in the amount of fifty dollars to the complainant, since she can understand why he would want to keep them.
Alice M. Saunders filed on the 21st day of October, 1947, her affidavit in opposition to the granting of a perliminary injunction, the substance thereof being that she has worked for the past twenty-eight years; that during the first fifteen years she delivered all of her earnings to the complainant for safe-keeping; that commencing in the year 1934 she paid board to the complainant and delivered to him certain of her earnings to invest and keep for her; that this arrangement continued from 1934 until 1943; that from 1943 until 1945 she was in the service of the United States as a WAC, during which period she delivered to the complainant certain of her earnings to invest and keep for her; that all of the cash in the complainant's safe deposit box, No. 792, and later transferred to her safe deposit box [31 Del.Ch. 517] No. 2837, is her sole property, and accounted for as indicated; that the two thousand dollars in War Savings Bonds were bought by the complainant out of his own savings and subsequently given to her as a gift; that the twenty-five shares of American Telephone and Telegraph Company stock were likewise a gift to her from the complainant; that the fifty dollars in gold coins is her sole property.
The complainant filed his affidavit, the substance thereof being that the sum of five thousand dollars as mentioned in the respondent's affidavit and in the bill of complaint is and always has been his property, none of which represents in any way money belonging to the respondent; that the only funds belonging to the respondent that ever came into his possession were the sum of one hundred dollars, which was paid to him by the Viscose Company where the respondent had been employed prior to her entry into the service as a WAC; that a part of this sum was used to pay various small bills of the respondent and the balance was delivered to her in cash. He denies ever making gifts to the respondent of the two thousand dollars in War Savings Bonds or the twenty-five shares of American Telephone and Telegraph Company stock, and says that her statements contained in her affidavit and answer in reference thereto are false and untrue; that the gold coins in the amount of fifty dollars are his sole and exclusive property.
It was suggested to the Chancellor, since the title to the gold coins is no longer in dispute, and, since the determination of the title to the remaining personal property would be predicated entirely on the oral testimony of the complainant and respondent, Alice M. Saunders, that he must, under the provisions of Section 4367 of the Code of 1935, frame an issue and direct the same to be tried by a jury at the bar of the Superior Court. Such a motion was duly filed.
The complainant opposed the motion, contending that in the present case the Chancellor, under the provisions of [31 Del.Ch. 518] Section 4367, may in the exercise of his discretion refuse to frame an issue and ...