BANK OF DELAWARE, formerly Equitable Security Trust Company, formerly Security Trust Company, a corporation of the State of Delaware, Plaintiff,
Sara Payne Wilson HITCHENS, Susan W. Bedyk, Harry L. Wilson, III, Mary J. Pearce, Mabel L. Lynch, Josephine Corcoran, Elizabeth A. Boulden, Richard D. Aiken, Amos R. Merritt, Mamie M. Bernard, Hilda M. Merritt, Ruth M. Neilsen, Mary Ann Reynolds, Richard B. Merritt, IV, James W. Merritt, Lewis A. Collins, Merritt W. Collins, Francis L. Collins, Sallie R. Wilson, Leota Snyder, Daniel E. Wilson, Jr., E. Amos Wilson, Jr., Virginia L. Galati, Betty Glanding, Catherine Raymond, Defendants.
Supplemental Opinion June 15, 1961.
[40 Del.Ch. 47] Howard L. Williams and George C. Hering, III, of Morris, James, Hitchens & Williams, Wilmington, for plaintiff.
H. James Conaway, Jr., of Morford, Young & Conaway, Wilmington, for defendant, Ruth M. Neilsen.
Clement C. Wood of Allmond & Wood, Wilmington, for defendant, Susan Wilson Bedyk.
Victor F. Battaglia, Wilmington, of Theisen and Lank, Wilmington, amicus curiae.
The Bank of Delaware, successor trustee, seeks instructions with respect to the distribution of the corpus of a trust created under the will of Daniel E. Wilson ('testator').
The testator executed his will on March 22, 1933 and died December 27, 1934. After making certain specific bequests and devises, he devised and bequeathed the remainder in trust to pay the income to Janet Miller for life. He provided by Item Seventh that upon her death the trust principal should be divided equally 'among the following relatives of mine who are at that time alive'. He then listed by name a nephew, a brother and three sisters. He then provided:
'Eighth: In the event that all of the distributive provisions of this will fail, then I direct that my estate be distributed as is provided for in the laws of Delaware for intestate estates.'
[40 Del.Ch. 48] The life beneficiary died October 6, 1959. However, all the named remaindermen predeceased her, the last one having died February 6, 1957.
The trustee assumed that the deaths of the remaindermen named in Item Seventh, before the income beneficiary, rendered Item Eighth operative. It alleges that it is uncertain as to whether the intestate beneficiaries under Article Eighth are to be determined as of the date of death of the testator or as of the death of the life beneficiary, or even as of the death of the last of the relatives named in Article Seventh.
The two appearing defendants, Ruth M. Neilsen and Susan W. Bedyk ('defendants'), claim a share of the remainder interest on the theory that the will shows that the testator clearly intended that the intestate beneficiaries should be determined as of the date of the death of the life tenant.
A large number of possible distributees have not filed an answer or entered an appearance. On application, the court appointed an Amicus Curiae to present the views favoring a construction that the controlling dates are either that of the testator's death or the death of the last beneficiary mentioned in Item Seventh. However, the Amicus went on to argue that Item Eighth never became operative. Thus he contends that under Item Seventh there were no takes and so the testator died intestate as to the remainder.
One of the defendants argues that the Amicus exceeded the scope of his appointment when he contends that Article Eighth of the will never became effective. I need not consider this point because under my construction of the will the same persons take whether or not Item Eighth is applicable.
Under Item Seventh all those designated as contingent remaindermen died before the income beneficiary. There was no alternative provision under that Item. In consequence, the testator died intestate so far as that Item is concerned. See Ford v. Wilson, 10 Del.Ch. 124, 85 A. 1073. Thus, the remainder had to pass under the intestate statute.
[40 Del.Ch. 49] Now let us assume that Item Eighth applies, despite the contention of the Amicus that it never became operative because 'all of the distributive provisions' of the will did not fail. The next issue is whether the intestate heirs who take under Item Eighth are to be determined as of the date of the testator's death or as of the date of the death of the income beneficiary. Parenthetically, it is not contended by anyone that the date of death of the last remainderman named in Item Eighth is controlling.
It appears to the court that the wording of Item Eighth is decisive. I say this because the testator directed 'that my estate be distributed as is provided for in the laws of Delaware for intestate estates'. The only Delaware law in this regard fixes the heirs as of the date of the testator's death. Burton v. Burton, 4 Har. 38; 3 Page on Wills (Life ed.) § 1054. The case of DeWolf v. Middletown, 18 R.I. 810, 26 A. 44, 31 A. 271, 31 L.R.A. 146, cited by defendants, may or may not be inconsistent with the Burton decision. In any case, I am bound by the Burton case and consider it to be 'good' law.
In any event, defendants recognize that the general rule of construction is that the heirs at law are determined as of the date of death of the ancestor and not as of the death of the last life tenant in the absence of a clear and unambiguous indication of an intention to the contrary. Compare Delaware Trust Co. v. ...