Executor's complaint for instructions under last will and testament. The Court of Chancery in and for New Castle County, Bramhall, Vice Chancellor, held that where testatrix's estate consisted of one piece of realty, household goods, cash refunds, and bank deposits and testatrix, after making two specific bequests of jewelry and clothing, directed executor to sell rest of property, real, personal and mixed, and distribute proceeds from sale to certain persons, testatrix intended to dispose of her entire residuary estate which included cash refunds and bank deposits therein.
Judgment in accordance with opinion.
[34 Del.Ch. 73] Complaint for instructions by William M. Shane, executor under the last will and testament of Anna C. Holt, deceased.
Victor J. Colombo, of Wilmington, for plaintiff.
Anthony F. Emory, of Wilmington, for defendants Elizabeth R. Johnson, Sarah A. Bidden, Robert J. Fleming, Alfred H. Fleming, Martin F. Shannon, Jr., and William M. Shane.
BRAMHALL, Vice Chancellor.
The sole question in this case is whether or not certain items of cash are to be distributed by the executor under Item Three, the residuary clause of the will of testatrix.
Testatrix, after making two specific bequests of jewelry and clothing, provided as follows:
‘ Item Three: I order, direct, authorize and empower my said Executor to sell all of the rest, residue and remainder of my property, real, personal and mixed, at private or public sale, within one year after my death, and for whatever price or prices he deems fit; and I order and direct my said Executor to distribute and pay the proceeds from such sale, less any and all expenses incident and necessary thereto, to my said sisters Elizabeth R. Johnson and Sarah A. Bidden, my beloved brothers Robert J. Fleming and Alfred H. Fleming, my dear nephew William M. Shane, and my dear friend Martin F. Shannon, Jr., in equal shares.’
The estate consisted of one piece of real estate in the Town of Bellefonte, Brandywine Hundred, New Castle County, household goods, small cash refunds from social security tax paid and policies of fire insurance, proceeds of life insurance policies, and cash on deposits in the Equitable Security Trust Company, Wilmington Savings Fund Society, and Artisans Savings Bank, all of Wilmington. The real estate was
sold by the executor for the net amount of $14,409.10; the household goods, except that part included in the specific bequests, [34 Del.Ch. 74] was sold for the net sum of $936.27. The aggregate amount of the cash refunds and cash deposits was $8,669.92. The will contains no residuary clause other than Item Three.
The existence of a will raises such a presumption in favor of the intention of a testator to dispose of her entire estate that in the construction of doubtful language that interpretation is to be adopted if possible which avoids a partial intestacy, unless it clearly appears that the testator intended to die intestate as to part of her property. Small v. Adams, 17 Del.Ch. 316, 154 A. 473. In interpreting a will the intent of the testator is to be gathered from the evident meaning which the words employed were clearly designed to express.
Small v. Adams, supra.
It is clear that testatrix in the language used in Item Three of her will intended to dispose of her entire residuary estate. She did not otherwise dispose of the cash refunds and bank deposits. In Item Three testatrix directed her executor ‘ to sell all the rest, residue and remainder of my property, real, personal and mixed, at private or public sale’ . By the use or this language testatrix undoubtedly had in mind the disposition of her whole estate other than the specific bequests previously made in her will. The fact that the executor did not dispose of the cash refunds and deposits in bank is unimportant. Testatrix directed her executor to dispose of her assets at public or private sale solely for the purpose of enabling the executor to make distribution among the residuary legatees. The executor complied with the instructions of testatrix in disposing of all of the salable assets. He did not sell the other assets because they were already in the form of cash. His failure to do so does not in any way affect or limit the estate included in Item Three of the will. The nonsalable assets constituted a substantial part of her estate. Under the language of Item Three testatrix attempted to dispose of all of her personal property as well as real estate. Cash refunds and bank deposits are personal property. The fact that there was no duty on the part of the executor to dispose of these items, since they were already in the form of cash and capable of distribution is not a matter involving the construction of the will; it is a matter to be determined by the executor himself under the supervision of the court.
[34 Del.Ch. 75] The case of Walls v. Walls,218 Ala. 147, 117 So. 670, 671, is a case in point. In that case testator directed his executor to sell all his personal property at public or private sale and divide the proceeds between his two sons. It developed that in addition to the salable assets there were two cash deposits and notes and accounts owing to ...