11 Del. Ch. 28 | New York Court of Chancery | 1915
The Orphans’ Court has jurisdiction of the whole subject-matter involved in this cause. It is given exclusive jurisdiction to order the sale of land of a decedent for the payment of his debts. Rambo v. Rumer, 4 Del. Ch. 9, 15. By statute each devisee could in that cause obtain exoneration of the land devised upon payment of such debts, or portion thereof, as the court should order, and could obtain contribution from the other devisee to equalize the burden of payment of the debts disproportionately. Revised Code of 1915, c. 99, §8, p. 1573. The Orphans’ Court may also adjust between the devisees the order in which the several parcels of land should be sold, having all the equitable powers necessary for the proper exercise of the jurisdiction conferred upon it. Furthermore, it is doubtful if this court has jurisdiction to construe the will in order to instruct the executors as to the method of performing a duty not imposed by the will, viz: a sale of the land for the payment of debts. If the executors petition the Orphans’ Court for leave to sell land to pay debts of the decedent, based on the insufficiency of the personal estate, all the devisees would be made parties by service of notice of the application, and could set up the claims made here respecting the order and manner in which the several parcels should be sold. In reaching a conclusion on that subject, the Orphans’ Court would have power and jurisdiction to construe the will as fully as this court.
Under such conditions this court should not entertain jurisdiction even to construe the will, much less to instruct the
The bill should be dismissed, the costs of the cause to be paid by the executors from the assets of the estate; but this order will not be made until after the application to the Orphans' Court has been made and determined.
