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Delaware Trust Co. v. McCune

Court of Chancery of Delaware, New Castle County

May 3, 1951

DELAWARE TRUST CO. et al.
v.
McCUNE et al.

The Delaware Trust Company, a corporation of the State of Delaware, executor of the last will and testament of Edmund Curtiss McCune, deceased, brought suit against Curtiss S. McCune and others for instructions with respect to disposition of certain personalty in the estate of the deceased. The Court of Chancery, Wolcott, Chancellor, held that it had jurisdiction of the action and that plaintiff was entitled to instructions.

Plaintiff's motion for summary judgment granted.

Page 508

[32 Del.Ch. 114] William Poole, of Southerland, Berl & Potter, of Wilmington, for the plaintiff.

[32 Del.Ch. 115] John S. Walker and Frank J. Miller, of Wilmington, for Curtiss S. McCune.

Robert H. Richards, Jr., of Richards Layton & Finger, of Wilmington, for Homeopathic Hospital Ass'n of Delaware and The Salvation Army.

WOLCOTT, Chancellor.

The plaintiff has filed a complaint seeking instructions with respect to the disposition of certain personal property in the estate of Edmund Curtiss McCune. The testator on June 30, 1949 executed a codicil to his will, by Item III of which he gave to his nephew, Curtiss S. McCune (hereinafter called ‘ McCune’ ) a sum of money and his Greenville property ‘ together with all the contents thereof’ . On June 7, 1950, the testator executed a second codicil to his will, by Item II of which he revoked in its entirety Item III of the first codicil, and devised to each of the other defendants one-half of his residuary estate. The will of the testator and the two codicils thereto were admitted to probate and the plaintiff qualified as executor.

If it should ultimately be the fact that the second codicil is effective as a testamentary disposition, the Greenville property with its contents becomes a part of the residuary estate devised by the second codicil. If, on the other hand, the second codicil should ultimately be determined to be ineffective as a testamentary disposition, the Greenville property with its contents passes under Item III of the first codicil to McCune.

The contents of the Greenville property consist largely of Oriental rugs and antique furniture and, as such, have a special value because of their unique character. The appraised value of these chattels exceeds $20,000.00

Subsequent to the grant of letters testamentary to the plaintiff, McCune notified it that he proposed to take appropriate legal action to review the probate of the second codicil. He has the right to institute legal proceedings to [32 Del.Ch. 116] review the probate of the second codicil at any time within one year after its probate. Sec. 3801, R.C. 1935.

The plaintiff finds itself in a dilemma with respect to the chattels located within the Greenville property. The chattels are of great value and have been left by the plaintiff in the Greenville property. Because of their value the plaintiff is paying a watchman to remain on the premises at all times. The plaintiff desires either to deliver the chattels to the beneficiaries entitled to them, or to sell them at the best price obtainable in order to save the expense of the watchman required to protect them. Because of the notice given by McCune to the plaintiff, the plaintiff is unable safely to dispose of the chattels by either method. If McCune is successful in his proceeding to set aside the second codicil, the chattels will descend to him under Item III of the first codicil and, in that event, it is possible that McCune will desire the chattels delivered to him for his own use. The other defendants who would be entitled to the chattels if the second codicil is ultimately upheld desire that the plaintiff sell the chattels for the best price obtainable.

McCune alleges in his answer the improper probate of the second codicil by reason of the mental incapacity of the testator. The paragraphs of the answer setting forth this defense are subject to the plaintiff's motion to strike on the ground that this court has no jurisdiction to review the probate of a will or codicil thereto. The second and third defenses of the answer of McCune allege in substance that the plaintiff

Page 509

should be refused relief because this court has no jurisdiction over the subject matter of the suit and because the plaintiff has an adequate remedy before the Register of Wills. Both the second and third defenses of McCune are also subject to the plaintiff's motion to strike. ...


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