6 Del. Ch. 371 | Orphan's Court of Delaware | 1880
John Green, in and by his last will and testament dated the 5th day of August, A. D. 1876, devised a house and lot, in Dover, to his wife during her natural life, and also gave her annually the sum of $200, to be paid in equal semi-annual installments. He directed his executrix to rent the farm on which he lived, during the minority of his youngest daughter, and out of the proceeds therefrom to pay semiannually to his wife the sum of $100, which semi-annual payments were, during the minority of his- said daughter by the clear intendment' of his will, to constitute the said legacy of $200. After his said daughter should arrive at age, he directed his real estate, except the house in Dover, so as aforesaid devised to his wife, to be sold at public sale, and the sum of $3,333.33-^, with interest payable semi-annually, to be secured on said lands by way of mortgage. The object of this investment was to secure the payment to his widow the legacy of $200 during her life in lieu of the payment of said sum out of the rents before the sale. The devise and bequest of the testator to his widow was expressly made in lieu and bar of dower. On the 25th day of March, A. D. 1879, the executrix in the will having previously renounced, Dr. Gove Saulsbury, administrator c. t. a. of the deceased, applied in due form to this court for an order to sell the real estate of
Tour petitioner further represents that her aforesaid election was made under the belief that the estate would -be ample to pay her annuity and all debts against the estate from the best information she could obtain from other sources, as well as the statements in the petition for •an order to sell the lands for the payment of debts, and by reason of said election said lands have been sold free ■and discharged of dower for a much larger sum than otherwise they would have brought. She therefore prays the court in case she cannot obtain relief upon the hearing of the rule prayed for on this petition, to ■allow her to withdraw her aforesaid election and file a waiver of the right to assignment of dower by metes and
At an assembly held at Philadelphia, in that Province,, the tenth day of the first month, March, 1683 (see Charter and Laws of the Province of Pennsylvania from 1682-1700, chapter 77, page 131), it was enacted, “That the-Justices of each respective county courts shall sitt twice every year to inspect and take care of the estates, usage- and employment of orphans, which shall be called the- ' Orphans’ Court, and sitt the first third day of ye week in the first and eighth month yearly; That care may betaken for those that are not able to take care of themselves.” This was abrogated by William and Mary, King- and Queen, in the year 1693, and was re-enacted the same year. At an assembly held at Hew Castle the tenth day of the,third month, May, 1684, it was enacted (chapter 156,.
The Court of Common Pleas continued to hold the Orphans’ Court and to exercise all the jurisdiction thus given to the Orphans’ Court under the Constitution of 1792, until that Constitution was amended in the year 1802, as follows, viz.: “The Chancellor shall compose
The Chancellor made the following order, viz.: “ Therefore, it is ordered that the said Margaret Hall be, and she is hereby allowed, one-seventh part of the proceeds of the real estate in the proceedings mentioned in bar and satisfaction of all that portion of the real and personal, estate devised to her by her late husband, Joseph Hall, and which property so devised she had elected to take in-lieu of her dower.”
This case was decided in Chancery for the reason I suppose that, under the law and practice of Maryland, the Court of Chancery alone had jurisdiction to award a sale of the realty of a deceased person for the payment of his debts where the sale of the realty became necessary for such purpose. The course to be pursued was by a creditor’s bill against the devisees and others claiming the land when a decree was made for the sale of the land.. Of course it became necessary to make return of the sale-to the court which had made the decree for the sale, and every claim upon the proceeds of sale had to be presented' to that court, and might be as was done in this case, by petition by the claimant. The principle applicable in this respect to the present case and to all similar cases, is,,
There is no doubt that in a case arising in the Court of Chancery in which the right to elect between two interests, or to revoke an election already made and to be .remitted to rights waived upon election, that the court would feel itself compelled to decide in conformity to the long train of decisions on the subject, that before a party can be compelled to elect, such party would be entitled to be informed fully in respect to his or her interests and to the situation of the estate or funds in respect to which they might arise, and for that purpose to have •accounts taken in that court. According to the English law, and the same is doubtless true in this country wherever the question has arisen in Chancery, before a widow can be compelled to make her election between her right of dower at law and a devise in lieu of dower, she is entitled to be fully informed of the comparative value of the two rights or subjects-matter of choice. This principle is one of such obvious fairness that I know of no case in which the contrary thereof has been judicially held. Other circumstances, however, besides an accurate knowledge of the comparative value of the two things which are the subject of election may be sufficient to bind; but, •as has been well remarked, these circumstances (whether .arising out of original intention, acquiescence in the acts of others, or the effect of acts of the party having the right of election on the interest of third persons), must be so infinitely varied and modified in different cases that no rule applicable to all can be laid down; each must be determined on its own particular grounds. In the ease of Wake v. Wake, 1 Ves. Jr. 335, it was decided that the receipt of a legacy and annuity under the will, for three years, did not prevent her right of election being presumed not to have acted with full knowledge which would bind her.
Where a court has jurisdiction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But, if it act without authority, its judgments and orders-are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. Elliott v. Peirsol, 26 U. S. 1 Pet. 340, 7 L. ed. 170. I take the principle to be this, that where a court has jurisdiction of the subject-matter, having the right to decide every question occurring in the cause,' the correctness of its decision in respect to any such question can only be inquired into' upon a writ of error or upon an appeal therefrom. In this case no writ of error would lie, and an appeal, and that to the Superior Court only for the county, in case the opinions of the judges composing this court should ' be opposed, could be taken.. This should only make us the more careful of the proj>riety and correctness of the-decision we shall make, but it should make us equally careful not to avoid the exercise of a jurisdiction which
If it be true that a widow is entitled to revoke her election, to take the devises and bequests in her husband’s will in lieu of her legal right to dower in- real estate, and if such revocation of election can only be made in the court in which the election was made; and if it be true that the widow should be remitted either to-her right at law, as if such an election had never been made, or should be compensated by a just equivalent out of" the proceeds of the sale of the real estate under an order o^ sale for the payment of debts,—it would seem that the court: in which the election was made, or the right to revocation of election -or of just compensation instead thereof, is, and should be, the proper court to ascertain and determine the amount or extent of that compensation. Such amount being thus ascertained and determined not being a sum awarded absolutely in gross as absolute property, but only the annual interest upon such sum, it would be proper to preserve the principal sum for the benefit of those who might be entitled-to it after the interest thereon should be no longer payable to the widow. If the court in which the proceedings for the sale of the real estate were, was necessarily the Orphans’ Court, and if" that court possesses, as we have seen, equitable powers,, and if it has jurisdiction of the cause before it, and if, as we have seen, that a court having jurisdiction of a cause has a right to decide every question which occurs in such cause, it would follow reasonably that the Orphans’ Court-is the proper tribunal to decide in respect to the safety and security of such principal sum, and that, if in the-judgment of the court the investment of the- principal sum should be necessary or proper for such security or
In this case why may not the administrator, who himself, by leave of the court, has in fact become the purchaser, pay the sum which the court may adjudge equitable, into the court, to be invested or otherwise secured under the direction of the court for the benefit of the parties interested in the same ?
It appears by the return of sale made by the administrator that the sale of the real estate amounted in the aggregate to the sum of $11,946.00, one third of which would be the sum of $3,982.00, the annual interest upon which would be $238.92, which sum annually during her life would be more than an equivalent for the annual interest on the sum of $3,333.33^—to wit, $200—which
These matters are subject to proof which may hereafter be presented to us, and in respect to which no opin ion is expressed further than to say, that the court would not be warranted in concluding that the devise apd bequest to the widow in lieu of dower was a fraud in respect to creditors, or so unjust to them as to justify the court in any manner disturbing or lessening it. I think, therefore, that the widow should amend her petition and rule by leave of the court, so as to make the creditors of John Green, deceased, co-defendants with the administrator in said rule, and that the rule should be served upon the creditors commanding them to ap
Note.—Butricke v. Broadhurst, annexed notes, 1 Ves. Jr. 171; Wake v. Wake, 1 Ves. Jr. 335; Burridge v. Bradyl, 1 P. Wms. 137; Blower v. Morret, 3 Ves. Sr. 430; Devenhill v. Fletcher, 1 Ambl. 244; Heath v. Dendy, 1 Russ. 543; Isenhart v. Brown, 1 Edw. Ch. 411, 6 L. ed. 190; Hall’s Case, 1 Bland, Ch. 305, 17 Am. Dec. 375.