30 Del. Ch. 118 | New York Court of Chancery | 1947
Delaware Trust Company as trustee under the will of Annie Rogers duPont, deceased, is the legal owner of an undivided four-ninths interest in the Theodore Rogers property, known as “Dunleith”, in New Castle Hundred, New Castle County, on the road leading from Wilmington to New Castle, and where Helen Rogers Bradford resided during her lifetime. Delaware Trust Company, as such trustee, also holds the legal title to an undivided two-thirds interest in parcels Nos. 1 and 3, described in the bill. Shapdale, Inc., a corporation of this state, owns an undivided two-ninths interest in Dunleith and an undivided one-third interest in Nos. 1 and’ 3.
The latter parcels are on the Northerly side of the road leading from Wilmington to New Castle, in New Castle County, between the Hares Corner Road and the Old Ferry Road. Helen Rogers Bradford had a life interest in the remaining undivided one-third part of Dunleith, together with a general power of appointment of the remainder in that interest. She had no interest in Nos. 1 and 3.
On February 6, 1943, Helen Rogers Bradford entered into an agreement with Delaware Trust Company, trustee under the will of Annie Rogers duPont, deceased, and with Shapdale, Inc., which purported (1) to give and grant her at any time while she lived, and to the executor named in her last will and testament, the exclusive right and privilege to purchase all the right, title and interest of Delaware Trust Company, trustee, and of Shapdale, Inc., in Dunleith, in Nos. 1 and 3, and in the furniture and fixtures and other personal property at Dunleith; (2) if that option should not be exercised by Helen Rogers Bradford during her lifetime, her excutor could exercise it within the period of six months after her death; and (3) the purchase price
The will of Annie Rogers duPont named Delaware Trust Company the trustee of her residuary estate; the seventh item provided:
“I authorize and empower the said Trustee to demise, care for and manage the real estate constituting the trust and collect the income thereof, and from the income of the trust estate pay for the maintenance and improvement of the real estate; and also in its discretion to sell at any time at public or private sale all or any portion ,/ of my estate and property, either during the continuance of the trust, or for the purpose of distributing the trust property on and after the termination of the trust, and to convey and transfer the property so sold to the purchaser free of any trust and without liability on his part as to application of the purchase money, the proceeds of*124 such sale to become a part of the principal of the said trust and the income derived therefrom be held and applied as herein provided respecting the rest of my trust estate, and with like powers as to investment, reinvestment, collection and disposal thereof as hereinabove directed.”
Delaware Trust Company as trustee was, therefore, merely given a general power to sell the trust property, though the sale could be made either publicly or privately.
At the hearing, the Academy of the Visitation denied the jurisdiction of this court to entertain a bill for instructions, and claimed that as the intended meaning of the decedent’s will was not questioned, a separate bill against the other parties to the option contract for specific performance was the complainant’s appropriate remedy. I am unable to agree with that contention. The right of this court to determine the executor’s powers under the decedent’s will, and in view of the parties to the proceeding, to give the appropriate relief is an incident of the general jurisdiction of equity over trusts. Hoagland v. Cooper, 65 N.J.Eq. 407, 56 A. 705; Bowers v. Smith, 10 Paige (N.Y.) 193; 4 Pomeroy Eq. Jur., (5th ed.), §§ 1155, 1156; see also Glanding v. Industrial Trust Co., 28 Del. Ch. 499, 45 A.2d 553, 555; Theisen, Adm’r., v. Hoey, et al., 29 Del. Ch. 365, 51 A.2d 61.
The complainant as executor of Helen Rogers Bradford, deceased, is directed to use funds of the estate held by it in a fiduciary capacity to purchase real property and interests in real property, covered by the option contract. Its ability to carry out that direction is, however, denied. Moreover, the rights of legatees may be materially affected by the result of the controversy because of the probable insufficiency of funds to exercise the option and to pay all the legacies in full. Christy, v. Sharpe, 11 Del. Ch. 28, 95 A. 299, is not inconsistent with this conclusion. In that case, the decision was based on the theory that by statute the Orphans’ Court had exclusive jurisdiction to order a sale of the decedent’s real estate.
The grant of an option to purchase is neither a sale nor an agreement to sell property. Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744; Buder v. New York Trust Co., (2 Cir.), 82 F.2d 168, 104 A.L.R. 1035.
Ordinarily, the grant of that right is not essential to the exercise of a power of sale, and a fiduciary with a mere general power, therefore, cannot grant a future option to buy the property. Clay v. Rufford, 64 Eng. Reprint 1337; Oceanic Steam Navig. Co. v. Sutherberry, 1880, 16 Ch. Div. 236; Hickok v. Still, 168 Pa. 155, 31 A. 1100, 47 Am.St.Rep. 880; Moore v. Trainer, 252 Pa. 367, 97 A. 462; In re Armory. Board, 29 Misc. 174, 60 N.Y.S. 882; 2 Scott on Trusts, § 190.8; Restatement Trusts, § 190k. He is usually expected to use judgment and discretion with respect to the adequacy of the price at the time of the exercise of the power of sale, and not at some prior time when values might have been quite different. Clay v. Rufford, supra; Hickok v. Still, supra; 3 Bogert on Trusts and Trustees, § 741; 2 Scott on Trusts, § 190.8; Restat. Trusts, § 190k. The grant of an option is not consistent with that duty. Moore v. Trainer, supra; 3 Bogert on Trusts and Trustees, § 741. In most of the reported cases, the purchase price was fixed when the option was granted (Clay v. Rufford, supra; Oceanic Steam Navig. Co. v. Sutherberry, supra; Cozard v. Johnson, 171 N.C. 637, 89 S.E. 37), but the general principle is
It may, however, be proper for a fiduciary with a general power of sale to grant an option to purchase property if a sale cannot be otherwise advantageously made and it, therefore, seems prudent to do so. Loud v. St. Louis Union Trust Co., supra; Crown Co. v. Cohn, 88 Or. 642, 172 P. 804; Restat. Trusts, § 1907c; 3 Bogert on Trusts and Trustees, § 741; 2 Scott on Trusts, § 190.8. In other words, if the choice is between a practical inability to dispose of the trust property and the giving of an option to buy it, which may result in a sale at an advantageous price, the courts will often construe the language of the power somewhat liberally. Id. Logically, it would seem that economic advantages to the trust estate, such as agreements to improve the property, would merely affect the reasonableness of the terms of the option contract, and not the trustee’s actual powers under the trust instrument. Moore v. Trainer, supra; see also Wilmington Trust Co. v. Carrow, 14 Del. Ch. 290, 125 A. 350. Few, if any, of the cases, however, make that distinction clear. Loud v. St. Louis Union Trust Co., supra; Connely v. Haggerty, 65 N.J.Eq. 596, 56 A. 371, affirmed 68 N.J.Eq. 794, 64 A. 1133.
At any rate, my conclusion is that the evidence does not bring this case within the exception to the general rule governing the grant of options by fiduciaries with general powers of sale, and the contract is, therefore, invalid as to Delaware Trust Company, trustee, and cannot be carried out by the complainant.
Conceding that the trust property consisted entirely of undivided interests and was unproductive, it does not necessarily follow that it could only be sold advantageously by means of an option which ran during the remainder of Mrs. Bradford’s life after February, 1934 and for six months after her death. It does not appear that any effort was made to sell to anyone else, or even to Helen
Delaware Trust Company, as trustee, executed the contract, but a fiduciary is not estopped to question its powers. See Wilmington Trust Co. v. Carrow, supra; Restat. Trusts, § 310; 3 Bogert on Trusts and Trustees, § 713.
The next question to be determined is whether the option contract is divisible or entire. Whether, if it is invalid with respect to the property rights belonging to the duPont trust estate, it is still valid as to Shapdale, Inc., another party thereto.
The contract granted to Helen Rogers Bradford, and to her executor, the privilege to purchase “all the rights, title and interest owned by said Delaware Trust Company, Trustee as aforesaid, and Shapdale, Inc., in and to” the real and personal property described therein. It also provided that the purchaser should pay to the grantors “such part of the appraised value of said real and personal property
Whether a contract is divisible or entire is a question of intent which must be determined from the terms and subject matter of the contract, together with any pertinent explanatory circumstances. Orenstein v. Kahn, 13 Del. Ch. 376, 119 A. 444. “If there be a single assent to a whole transaction, involving several things or several kinds of property, a contract is always entire.” Orenstein v. Kahn, supra; 17 C.J., 788, 25 C.J.S., Damages, § 42. Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700, 154 N.W. 91, 2 A.L.R. 638, 645.
Standing alone, a provision apportioning the consideration to and among the owners of the various property rights to be conveyed may be an important element in determining that question, but other pertinent provisions in the contract must also be considered in determining what was intended. Orenstein v. Kahn, supra.
In support of the contention that the option contract was entire and could not be enforced in part, it is said that it purported to give Helen Rogers Bradford and her executor the right to consolidate the various outstanding interests in the Rogers family real and personal property. See Hartford-Connecticut Trust Co. v. Cambell, 95 Conn. 399, 111 A. 864; Rollyson v. Bourn, et al., 85 W.Va. 15, 100 S.E. 682; Fairey v. Strange, 112 S.C. 155, 98 S.E. 135. If the contract had been valid as to the trust estate, Mrs. Bradford, or her executor, could have acquired the virtual control of Dunleith as she already had a life interest in an undivided one-third part thereof and the general power to appoint the remainder absolutely by will. She owned no interest in the adjoining parcels 1 and 3, but could have likewise acquired all of the various original interests in them. It
Inc., to participate in the appointment of one of the contemplated appraisers, my conclusion is that an entire and indivisible contract was intended. See Hartford-Connecticut Trust Co. v. Cambell, supra; Rollyson v. Bourn, et al, supra; Fairey v. Strange, supra. The option contract is, therefore, invalid as to Shapdale, Inc., and cannot be enforced by the complainant, the executor of the decedent.
But even if the contract were divisible, and, therefore, valid as to Shapdale, Inc., specific performance could not be decreed against it. Under the terms of that instrument, the purchase price could only be determined by an appraisal, and this court could not compel the selection of a person to carry out that provision. Electric Research Products v. Vitaphone Corp., 20 Del. Ch. 417, 171 A. 738 ; Milnes v. Gery, 14 Ves.Jr. 399, 33 Eng.Reprint 574; Simmons v. Crew, (4 Cir.), 84 F.2d 82, 88; 1 Williston on Sales, (2d ed.), §176; 1 Cornell Lato Quarterly, 225.
An order will be entered in accordance with this opinion.