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In re Dungan's Estate

Superior Court of Delaware, New Castle County

April 4, 1950

In re DUNGAN'S ESTATE.

[31 Del.Ch. 552] Appeal from a Decree of Distribution made by the Orphans' Court of the State of

Page 777

Delaware, in and for New Castle County.

This appeal involves a construction of the will of William K. Dungan which was executed on January 17, 1942, and the codicil thereto which was executed on July 22, 1943.

[31 Del.Ch. 553] William K. Dungan died on November 29, 1946; the portions of his will which are pertinent to the question before the Court are item three and the codicil.

Item three provides:

'Third: I give and bequeath the sum of Three Thousand Seven Hundred Dollars ($3,700.00) representing approximately the amount of my inheritance from my Aunt Elizabeth K. Smith, to her granddaughter, Barbara Lee Smith, now Mrs. Merrill W. Snyder, of 241 Sheridan Avenue, Hohokuss, New Jersey, if she be living at the time of my death, and if she should predecease me then to her son Sheridan Snyder if he be then living, and if he also should predecease me then such bequest to lapse'.

The codicil provides:

'I, William K. Dungan, single man, of the City of New Castle, County of New Castle, State of Delaware, make the following codicil to my will which was signed and sealed January 17, 1942.

'In this codicil I have cancelled paragraph three and substituting the following, giving outright the securities herein mentioned to Barbara Lee Smith, now Mrs. Merrill W. Snyder.

'Three thousand Atlantic City 3 1/2-4 1/2 One thousand St. Boniface Refunding One thousand St. James 5 1/2 which are now paying 2%.

'A certificate of Battle ford Saskatchewan which has no relative value but pays a little dividend each year so should be kept. Two shares of the City Bank and Trust Company of Reading, Pennsylvania and a liquidation certificate of the Pennsylvania Trust Company of Reading, Pennsylvania. these you will be transferred to her.'

Prior to the execution of his will and codicil, namely on May 15, 1941, William K. Dungan wrote the following letter to his niece, Mrs. Merrill W. Snyder:

'Dear Barbara:

I have been wanting to write this letter to you since right after the funeral, but I have been kept so busy going to Philadelphia every day, and the other things I had to do, I just couldn't get to it. Now that is all tapering off so I have more time. I am enclosing Aunt Bess Will. Aunt Sarah and Aunt Bess wanted to be sure I would be comfortable as long as I lived, but if I don't live to be a hundred I want to leave you in my will the securities Aunt Bess left me or their equivalent, they amounted to $3477.50 in the 1941 Tax returns, but eventually will be worth more than that. * * *'

[31 Del.Ch. 554] In December 1944, the Atlantic City Refunding 3 1/2 percent 4 1/2 percent bonds were called. In pursuance thereof Mr. Dungan surrendered them through the brokerage firm of Spitzer, Rorick and Company, and purchased through said brokerage firm three thousand dollars of Borough of Lodi, New Jersey, 3 3/4 percent refunding bonds. An envelope of the brokerage firm of Spitzer, Rorick and Company, was found among Mr. Dungan's effiects after his death, upon which was the following notation in his handwriting:

'The enclosed Borough of Lodi Bonds go to Mrs. Merrill W. Snyder. They take the place of the Atlantic City bonds which were called.'

The New Castle Trust Company as executor of the will of William K. Dungan, deceased, filed a petition in the Orphan's Court for a decree of distribution of his estate among the persons entitled thereto.

Mrs. Merrill W. Snyder, filed a claim, as a legatee under the will of said deceased, for the proceeds derived from the sale of the Borough of Lodi Bonds.

The New Castle Trust Company as trustee of the residuary estate of said deceased, likewise filed a claim for the proceeds derived from the sale of the Borough of Lodi Bonds.

The Orphan's Court held that the bequest to Mrs. Merrill W. Snyder in the codicil to the will of the deceased was a specific legacy; and that the surrender of the Atlantic City 3 1/2-4 1/2 Bonds when called, amounted to an ademption.

Page 778

The Court also held that counsel for the claimant, Mrs. Merrill W. Snyder, was not entitled to compensation from the proceeds of the estate.

George T. Coulson, Wilmington, for claimant.

William Poole, Wilmington, for the trustee.

Henry Van der Goes, Wilmington, for the executor.

RICHARDS, C. J., Terry, J., sitting.

RICHARDS, Chief Justice.

[31 Del.Ch. 555] In the letter which Mr. Dungan wrote to Mrs. Snyder, dated May 15, 1941, he told her what he wanted to leave her in his will, namely, 'the securities Aunt Bess left me or their equivalent, they amounted to $3477.50 in the 1941 Tax return', but that had no binding legal effect upon him or his estate. The same may be said of the notation in Mr. Dungan's handwriting on the envelope of the brokerage firm of Spitzer, Rorick and Company, found among his effects after his death, neither Mr. Dungan nor his estate were legally bound by it. If no mention had been made of Mrs. Snyder in his will and codicil, she would not have been in a position to make a claim against his estate, and the question involved in this appeal would not be before the court.

It is contended on behalf of the claimant Snyder, that it does not clearly appear what consideration was given this letter and notation by the Orphans' Court.

Our statute of wills, which is found at paragraph 3705 of the Code of 1935, contains the following requirements; 'Every will, whether of personal or real estate, must be in writing and signed by the testator, or by some person subscribing the testator's name in his presence, and by his express direction, and attested and subscribed in his presence by two or more credible witnesses, or it shall be void'. By no stretch of the imagination can it be said that the letter and notation above referred to meet the requirements of the statute and can be considered a will.

The only effect which could be given to either the letter or the notation would be to explain the intention of the testator at the time he executed his will on January 17, 1942, and the codicil thereto on July 22, 1943. In this connection it should be kept in mind that the letter to Mrs. Snyder was dated May 15, 1941, prior to the execution of both the will and codicil. It does not appear from the record when the notation on the envelope was made, but [31 Del.Ch. 556] the Atlantic Refunding 3 1/2 percent 4 1/2 percent bond were not called until December 1944, which was after the execution of both the will and codicil, and the Borough of Lodi New Jersey 3 3/4 percent Refunding Bonds were not bought until after that time.

The purpose of all rules for the construction of wills is to determine the intention of the testator.

It is the duty of the Court to ascertain the intentions of the testator when called upon to construe a will. In discharging this duty it should examine the entire will and learn from the language used the real intent and meaning which the testator desired to convey. Bird v. Wilmington Society of Fine Arts, Del.Sup., 43 A.2d 476.

The general rule is that a will speaks from the time of the death of the testator. Where it appears from the will, however, that the testator intended it should speak from some other time, that intention shown by the will prevails. Harris v. Harris, 97 N.J.Eq. 190, 127 A. 108. Bird v. Wilmington Society of Fine Arts, supra.

The letter written by Mr. Dungan to Mrs. Snyder, and the notation in his handwriting on the envelope of the brokerage firm of Spitzer, Rorick & Company, were offered in evidence to show his intention at the time he executed his will and codicil.

The Courts of this state have long been held that parol evidence is not admissible to add to, vary or explain a written instrument. Hearn v. Ross, 4 Har. 46; Sussex Trust Company v. Polite, 12 Del.Ch. 64, 106 A. 54; Winkler v. Woodruff,

Page 779

21 Del.Ch. 1 21 Del.Ch. 1 182 A. ...

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