William S. Potter and James L. Latchum, of the firm of Berl, Potter & Anderson, of Wilmington, for Jane Ramsay Stabler, Mary Ramsay Phelps and Caroline Ramsay Chandler, plaintiff-appellants.
Aaron Finger and Alexis I. duPont Bayard, of the firm of Richards, Layton & Finger, of Wilmington, for Walter Blackson, surviving trustee under the will of William G. Ramsay, deceased, and Wilmington Trust Company, surviving trustee for Caroline R. Chandler, and others, defendant-appellants.
William H. Foulk and Herbert L. Cobin, of Wilmington, for Joseph Gales Ramsay and Albert L. Massey, guardian ad litem for Alexandra Morris Ramsay, appellees.
TUNNELL, Justice, SEITZ, Chancellor, and CAREY, Judge, sitting.
William G. Ramsay, a resident of this state, died on September 28, 1916. He devised his entire residuary estate unto Tilghman Johnson and Walter Blackson as trustees, directing  them to pay the income therefrom to the testator's widow, Caroline Johnston Ramsay, during her life, and at her death to pay over the corpus unto the testator's five children[32 Del.Ch. 550] in equal shares. The will also provided that if any of the said five children should predecease the life tenant, the 'issue' of any such deceased child or children would take such deceased parent's share per stirpes, but if there were no issue, such share would pass to the children of the testator who did survive or leave issue, as the case might be.
In 1926 the four daughters of William G. Ramsay, whose present names are Jane Tilghman Ramsay Stabler, Mary Morris Ramsay Phelps, Caroline Ramsay Chandler, and Elizabeth Ramsay Ferris, entered into similar trust agreements, under the terms of which each of them singly purported to assign, transfer, and set over unto Wilmington Trust Company and Tilghman Johnson, trustees, certain interests in her father's estate. We are here especially interested in the following language which appeared in each of the four said assignments:
'Whereas, the parties hereto desire to create a trust of the estate and properties and for the purposes hereinafter named, and
'Whereas, the said Trustor is entitled, under the Will of her father, William G. Ramsay, dated July 2d, 1910, and recorded in the Office of the Register of Wills at Wilmington, Delaware, to a vested remainder or share in a Trust Estate created under said Will, to take effect after the death
"To pay the whole of the net income derived from the trust estate as and when received to my wife, Caroline Johnston Ramsay, during the term of her natural life; upon the death of my said wife, I give, devise and bequeath all of the Trust Estate to my children, Caroline Johnston Ramsay, Elizabeth Gouverneur Morris Ramsay, Joseph Gales Ramsay, Mary Morris Ramsay, and Jane Tilghman Ramsay, absolutely share and share alike.'
'Now, Therefore, in consideration of the premises and in further consideration of the sum of One Dollar ($1.) paid by Trustor to Trustees at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, Trustor hath assigned, transferred, and set over, and by these presents doth hereby assign, transfer and set over, unto the said Trustees, their Executors, Administrators, Successors and Assigns, all her right, title, interests, claim, demand and share in said Trust Estate, devised and bequeathed to her as aforesaid;
[32 Del.Ch. 551] 'To have and to hold the said estate, securities and cash, to which said Trustor is entitled after the death of her mother, when and as received; * * *.'
In 1946 Joseph Ramsay, the son, who had no children of his own, but had adopted a child, Alexandra Morris Ramsay, became alarmed as to his health and fearful that if he should die before his mother, his adopted daughter might receive nothing from the estate of his father, William G. Ramsay, because she might not be deemed in law to be his 'issue', as that term was used in his father's will. Accordingly, at the request of Joseph, relayed to the sisters through the agency of Joseph's wife, three of the four sisters, namely, Jane, Mary, and Caroline, were prevailed upon to execute an agreement stating in substance that if Joseph should predecease their mother, then Alexandra, Joseph's adopted daughter, should inherit any share of the estate which she would have been entitled to receive had she been Joseph's natural, legitimate child. This agreement of 1946 recited that it was entered into in consideration of love and affection 'and in settlement of any legal question which may arise on the death of the said Joseph Gales Ramsay.' In it the names of all four sisters appeared in the introductory language, where the parties to it were listed, and at the conclusion of the instrument places were provided for the signatures of all four. Elizabeth Ferris, however, refused to sign, taking the position that in 1926 she had already assigned to trustees whatever rights she had in her father's estate.
In this factual situation the three sisters who did sign the 1946 agreement filed a complaint in the Court of Chancery reciting all the matter above recounted and additionally alleging that there had been a distinct understanding, verbally reached prior to the execution of the 1946 agreement, that it was not to bind any of the signatories unless all four sisters should sign. The complaint, therefore, as ultimately amended, prayed for a declaratory judgment holding:
[32 Del.Ch. 552] (1)  That the assignments of 1926 had conveyed unto the trustees therein named the entire interest of the assignors in the estate of William G. Ramsay, deceased, so that after the said assignments were executed, the sisters had no interest in the said estate which they could subject to any further assignment or conveyance.
(2) That the agreement of 1946, purporting to assign to Alexandra Morris Ramsay an interest in remainder in the estate created by the second item of the will of William G. Ramsay, deceased, was 'ineffectual'.
All parties who answered the complaint joined in the prayer that the Court of Chancery entertain the action. It did so. It took
testimony, heard argument, and in due course entered a declaratory judgment. From the language of the judgment and from the opinion on which it was based, it appears that the then Chancellor held that the will of William G. Ramsay had provided each of the children with two types of interests: (1), a defeasible vested remainder in an undivided one-fifth of the estate, and (2), an executory devise providing a possibility of inheriting through the contingency that one or more of the testator's five children might die without issue prior to the death of the life tenant. The assignments of 1926, he went on to hold, were not defined by the all-inclusive language of their granting clauses; they were limited by the language of their respective second recitals, so that they applied only to the 'vested remainders' of the assignors. The executory devises, he held, remained unassigned after 1926. The agreement of 1946, moreover, which was signed by only three sisters, was not dependent for its validity upon being signed by all four, but was duly and unconditionally delivered, operating severally to convey the executory devises of the three sisters who executed it.
[32 Del.Ch. 553] From this judgment the plaintiffs and the trustees under the 1926 agreements both appealed.
When the appeals came on for argument, this court raised, and obtained the assistance of counsel on, the question whether under the facts as hereinabove related, we have before us an 'actual controversy' within the meaning of our Declaratory Judgments Act, Chap. 269, Vol. 46, Laws of Delaware. The first sentence of the statute, which states a prerequisite to all action under its terms, begins, 'In cases of actual controversy * * * the Court of Chancery * * * shall have power * * *.' This inquiry from the court was prompted by the fact that there will be no basis for any controversy of any kind about the disposition of Joseph Ramsay's one-fifth interest unless he happens to die without issue before his mother dies, and even if that happens, these plaintiffs will have no rights to assert unless they survive the life tenant. Thus, some aspects of the problem here presented are not merely anticipatory of the future, but may never become actual issues at all. And if certain events occur to make them actual issues, the present alignment of parties will be the wrong one unless a certain pattern of other facts prevails at that time. Therefore, while we have here a difference of opinion as to the effect of certain legal instruments, there is a serious question as to whether it is to be deemed an 'actual controversy' as those words are used in the statute. Obviously, in view of the statutory language quoted above, this inquiry is jurisdictional in its character, and presents an issue which the court itself was bound to raise. That all parties consented to jurisdiction is immaterial. Philadelphia Manufacturers Mutual Fire Ins. Co. v. Rose, 364 Pa. 15, 70 A.2d 316.
This expression, 'actual controversy', used in our Declaratory Judgments Act, also appears in the Federal Act.  It does not appear in the Uniform Act.  There is a remarkable[32 Del.Ch. 554] unanimity of opinion as to the application of all the acts, however, and in few, if any, cases has the decision actually turned on the use of the specific words, 'actual controversy'. Moreover, in those courts where a difference in the statutes is said to exist, our statute and the federal one are necessarily considered more selective than the Uniform Act, rather than less so. Decisions under the Uniform Act that a given cause is not justiciable are, therefore, a fortiori cases.
Let us first consider whether the Court of Chancery was within its jurisdiction in undertaking a general declaration of the rights of the parties under the assignments of 1926. The precise question, as put to us by plaintiff-appellants, is whether under these assignments the entire interests of plaintiffs passed to the trustees, or whether only the respective ...