SECURITY TRUST CO.
HANBY et al.
Action by the Security Trust Company, trustee under the will of Albert T. Hanby, deceased, against Cecil DeClyne Hanby, executrix under the will of Albert T. Hanby, and another seeking a determination of the effect on Delaware real estate of the widow's election to take against her husband's will in Pennsylvania, their domiciliary state. The Court of Chancery of New Castle County, Seitz, Vice Chancellor, held that the widow by electing to take against the will in Pennsylvania impliedly elected to take against the will in Delaware.
Judgment in accordance with opinion.
[32 Del.Ch. 71] Howard L. Williams (of Hering, Morris, James & Hitchens), Wilmington, for plaintiff.
Geo. Gray Thouron (of Southerland Berl & Potter), Wilmington, for defendants.
SEITZ, Vice Chancellor.
This is an action by plaintiff, testamentary trustee, seeking, in the main, a determination of the effect on Delaware real estate of a widow's election to take against her husband's will in Pennsylvania-their domiciliary state.
The testator, Albert T. Hanby, died domiciled in Philadelphia, Pennsylvania, on July 13, 1947. His will was there probated. Under Item Third of his will, the testator left the residuary estate in trust to pay the income to his wife for life. He left personal property of substantial value. But the only real estate left by the testator is located in New Castle County, Delaware and known as the ‘ Hanby's Corner’ real estate. This is tacitly conceded to be part of the residuary estate.
On January 20, 1948, the testator's widow elected in Pennsylvania to take against the will of her husband. The election, which was filed in accordance with the laws of Pennsylvania, provides, inter alia, that ‘ I, Cecil DeClyne Hanby * * * do hereby elect to take against the Will * * * and do not accept the estate and interest therein devised and bequeathed to me; but on the contrary elect to take such interest in the real and personal estate * * * as I would have been entitled to had the said decedent died intestate. * * *’
Under Pennsylvania law when a widow elects to take against a will she takes as though her husband had died intestate. As a result of her election the widow will receive in Pennsylvania personal property amounting to approximately $127,000. The widow has taken no action in Delaware [32 Del.Ch. 72] and, in consequence, the trustee has filed this action seeking a determination of the widow's rights with respect to the Hanby's Corner real estate.
The testator purported to dispose of all of his property under his will. His widow elected in their domiciliary state, Pennsylvania, to take against his will. What effect did this election in Pennsylvania have upon her rights in her husband's Delaware real estate?
The widow contends that she takes under the will in Delaware because she had not elected here to do otherwise. She contends that the Pennsylvania election had no effect in Delaware for three reasons: (1) There being no ‘ devise’ to the widow within the meaning of the 1935 Code Par. 3771, the widow had no right to an election in Delaware. (2) A copy of the original foreign
will having been filed in Delaware, it had the same force and effect under the 1935 Code Par. 3711 as if originally filed in Delaware. (3) The election in Pennsylvania was not an election in Delaware. The plaintiff-trustee disputes all three contentions and argues that the widow, by virtue of her election to take against the will in Pennsylvania has also done so in Delaware.
I shall assume, as the widow contends, that the testamentary life income provision was no such ‘ devise’ to her as required her to make an election under the 1935 Code Par. 3771. However, it does not seem to me that my assumed agreement with the widow's argument solves anything here. I say this because the fact that the widow's actions in Delaware were not governed by the statute does not prevent the possible conclusion that she has impliedly elected against the will in Delaware by virtue of her election duly made in Pennsylvania.
The widow next suggests that because of the language [32 Del.Ch. 73] of the 1935 Code Par. 3711, the will when filed in Delaware became operative as to the Delaware real estate. This would in effect give the widow all the income for life from the Delaware realty. I believe the language of the statute concerning the filing of a copy of the will in Delaware was intended primarily to perfect record title in Delaware to Delaware real estate owned by nonresident testators. See 2 Page on Wills (Lifetime Ed.) Sec. 734. The statutory language does not purport to make the filing of a foreign will binding on a widow to the extent that the mere filing would preclude her from electing to take against the will in Delaware. The filing in most cases would not even be under her control. Conceivably it might have some effect in other situations ...