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In re Cain

Orphans' Court of Delaware, Sussex County

October 13, 1954

In the Matter of Nellie Rickards CAIN, an incompetent person.

Proceeding, for decree for sale of ward's real estate, brought by guardian appointed under statute providing for appointment of guardians for property of aged, mentally infirm, or physically incapacitated persons. The Orphans' Court for Sussex County, Carey, J., held that court's powers under statute are coextensive with its jurisdiction over estates of infants under guardianship, and include right to order sale of real estate.

Decree accordingly.

The Sussex Trust Company was appointed guardian of the property of Nellie Richards Cain, pursuant to the provisions of 12 Del.C. § 3914, the Court having determined that she was incompetent to manage her own property by reason of her advanced age, mental infirmity and physical incapacity. In July of the present year, the guardian filed a petition in this Court for permission to sell the real estate of the ward, consisting of a single lot in Rehoboth Beach improved by a dwelling house. The petition set forth that the ward is and has been a patient in a nursing home; that her only income is a pension of less than

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$50 per month; that her checking account in a bank is about $30; that she has no other personal property save the household furniture and equipment in her dwelling, besides her wearing apparel and personal effects; that there is a mortgage against the real estate on which approximately $1250 is now due; that she has other debts amounting to about $4300; that the cost of her maintenance in the nursing home is $45 per week; that the real estate is producing no income. The Court found that it would be to the best interest and advantage of the ward that said real estate be sold and directed the guardian to do so at public auction. The guardian has now made a return of its proceedings, stating that the property was sold to Daniel G. Anderson, Jr. and Nicholas J. Chase for the sum of $18,100, which is represented to be a fair price for the property. The purchasers object to the confirmation of this sale solely on the ground that the statute under which the guardian was appointed confers no power upon this Court to authorize a sale of real estate of the ward.

Robert W. Tunnell, of Tunnell & Tunnell, Georgetown, for the guardian.

Houston Wilson, Georgetown, for Daniel G. Anderson, Jr., and Nicholas J. Chase.

CAREY, Judge.

The sole question for determination is whether 12 Del.Code, § 3914 confers, expressly or by implication, the power upon this Court to direct a sale of real estate owned by a ward for whom a guardian has been appointed under that section.

The cited section contains five paragraphs. The first one designates those persons who may present a petition to this Court for the appointment of a guardian of the property of ‘ any person, resident in this State, (who) by reason of advanced age or mental infirmity or physical incapacity is unable to manage and care for his property, and in consequence thereof is in danger of dissipating or losing such property, or of becoming the victim of designing persons * * *.’ The second paragraph provides for notice of a hearing. The third paragraph authorizes the Court to appoint a guardian of the property of such person, if satisfied that he is not able, for any of the reasons stated, properly to manage and care for his property.

The fifth paragraph provides that, from the time of the appointment, the ward shall be under disability to contract with regard to the property during the pendency of the guardianship.

The fourth paragraph reads as follows:

‘ In all matters relating to the appointment, qualification, duties and liability to account, such guardian shall be governed by all of the applicable provisions of law relating to the management of the estates of infants under guardianship and may be removed by the Orphans' Court upon application of the ward, or otherwise, whenever it appears that the guardianship is no longer necessary.’

The Orphans' Court has only such jurisdiction as has been conferred upon it by the Legislature, although within the bounds of that jurisdiction it follows equitable principles. First National Bank v. Andrews,26 Del.Ch. 344, 28 A.2d 676. I, therefore, agree with the contention now made to the extent that this sale cannot be valid unless the power to order it has been given to the Court by the Legislature. There being no express words to that effect in the statute, the ...


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