Natalie duPont EDMONDS and Hugh R. Sharp, Jr., Executors of the Last Will and Testament of Pierre S. duPont, Deceased, Plaintiffs,
James A. WHITE, William H. Kraemer, Ellen G. White, Mary Ethel Hunt, Ophelia Dent, Emily Storck Kraemer, John Kudlacek, William Farrington, Frank L. Battan, Hayes H. Battan, Edward A. Garbright, John M. Johnson, Roy Johnson, Cornelius J. Kenney, John Maclnnes, John H. Marx, Catherine A. McAilister, Frank S. Miller, Fred Miller, Alice S. Pierson, Carl F. Pyle, Ernest R. Robinson, Ernest F. Saunders, Lewis B. Smith, Roland W. Taylor, George E. Thompson, Caleb S. Toulson, James P. Truss, Edna S. Wade, Edgar L. White and Longwood Foundation, Inc., a corporation of the State of Delaware, Defendants.
Chancery proceeding relating to instructions requested by executors. The Court of Chancery, Collins J. Seitz, Chancellor, held that where will established pension trust plan for 23 employees, and provided that any amount payable as government pension should be deducted, in view of express provision of will making executors' decisions in matter of pension fund final and conclusive, executors had power to make a conclusive good faith determination as to deductability of social security benefits payable to retired employee though none were paid because employee had other employment, or for other reason.
William S. Potter of Berl, Potter and Anderson for plaintiffs.
Edmund N. Carpenter, II, of Richards, Layton & Finger, Wilmington, for individual defendants.
Alexander L. Nichols, of Morris, Steel, Nichols & Arsht, Wilmington, for defendant, Longwood Foundation, Inc.
[35 Del.Ch. 368] SEITZ, Chancellor.
Based on the evidence and arguments of counsel I have reached the following conclusions with respect to the instructions requested by the executors:
1. The executors, who in respect to certain of the matters here treated are really trustees, are authorized to purchase the annuity contract in substantially the form set forth in Exhibit C to the complaint as modified by the agreement of counsel. (Codicils Nos. 12, 13, 14, 16, 17, 19, 22, 26).
2(a) The executors are authorized to purchase a contract in substantially the form annexed to the complaint as Exhibit D, with modifications agreed on by counsel, for the purpose of satisfying the provisions of Codicil 11 with respect to the $500,000 pension fund.
2(b) The executors seek authority to deduct Social Security benefits payable to a retired employee under Codicil 11 even though the Social Security benefit is not actually paid by reason of other employment or for some other cause. The beneficiaries of the so-called pension fund contend that Social Security benefits for which a pensioner is ineligible do not under the will operate to reduce the amount of the pension to which he is entitled.
Codicil 11 first sets up the pension trust, then provides terms, conditions, and identification of beneifiaries. It goes on to provide the method for computing the pension as follows:
‘ 1 1/2% times the number of years of ‘ continuous employment’ with Pierre S. duPont times the annual compensation of the employee at the date of my death minus the amount of any ‘ government pension’ .'
The Codicil also contains certain definitions including the following definition of the term ‘ government pension’ .
‘ (5) The term ‘ government pension’ means any pension, annuity or similar benefit payable to the retired employee under the laws or regulations of any nation or state, or political subdivision thereof and based upon or attributable to any employment other than service in the armed forces.'
[35 Del.Ch. 369] Whether a government pension is ‘ payable’ within the meaning of this will when a pensioner is ineligible to receive Social Security payments because of earned income is a matter not free from reasonable doubt. The executors say ...