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In re Allen's Estate

Orphans' Court of Delaware, Sussex County

April 24, 1951

In re ALLEN'S ESTATE.

Proceeding in the matter of the estate of Victor R. Allen, deceased. Harriett A. Allen, administratrix of the estate, filed a petition to determine the order of preference in payment of creditors' demands. The Orphans' Court, Carey, J., held that debts represented by judgments entered over 20 years before intestate's death would not be ordered paid, in absence of rebuttal of presumption of payment thereof, and that an affidavit by the executor of a deceased judgment creditor's estate could not operate as a substitute for a proper action to revive such judgment, which would not be ordered paid, in the absence of such action within the time allowed by the court.

Order directing payment of costs and other administration expenses and fees, a judgment of a Justice of the Peace against deceased, and any balance due on decedent's notes held by payee's receiver.

Page 921

[32 Del.Ch. 592] Petition to determine the order of preference to be given to the respective demands of creditors of the decedent's estate in accordance with Section 3837, Revised Code of Delaware 1935, as amended, 41 Del. Laws, c. 191. The pertinent provisions of that Section are as follows:

Order of Paying Debts: -Executors and administrators shall pay demands against the deceased in the following order:

‘ Sixth: Judgments against the deceased, which shall include judgments before justices of the peace, and decrees of a court of equity against him for the payment of money;

‘ Ninth: Contracts under hand for the payment of money, or delivery of goods, wares, or merchandise;

‘ Tenth: Other demands.

[32 Del.Ch. 593] ‘ Whenever an executor or administrator is unable to determine between two or more creditors, the order of preference to be given to their respective demands, he or she may upon petition to the Orphans' Court have the parties in interest summoned to appear in said Court, and upon hearing duly had the Orphans' Court shall determine the order of preference to be given to the respective demands of the creditors who may have been made parties to said proceeding; and upon compliance with such determination the petitioner and his or her sureties shall be discharged from all further liability in respect to the preferences made by said Court.’

The petition alleges that the Administratrix has heretofore paid the funeral expenses and certain other charges which clearly have priority over the demands herein mentioned, and that she now has in hand the sum of $731.02 to be applied to the unpaid debts, subject to a deduction for certain administrative expenses, costs and fees, the exact amount of which is not yet known. It further alleges that there is no real estate belonging to the estate and that the funds in hand represent the proceeds of personal property. The list of claims set forth in the petition is as follows:

(1) Judgment of First National Bank of Seaford, entered June 28, 1912, for $1125.00 plus interest, said judgment having been renewed on May 29, 1922;

(2) Judgment of Dora E. Brown, administratrix, entered August 5, 1922, for $500 plus interest;

(3) Judgment of The American Argicultural Chemical Co., entered November 25, 1922, for $242.33 plus interest;

(4) Judgment of The American Agricultural Chemical Co., entered November 25, 1922, for $171.63 plus interest;

(5) Judgment of O. E. Wiley, entered November 9, 1925, for $60 plus interest;

(6) Judgment of Enterprise Milling Co., entered June 24, 1926, for $568.52 plus interest;

[32 Del.Ch. 594] (7) Judgment of Allen Package Co., Inc., entered October 15, 1926, ...


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