In re the Petition to Sell Real Estate of Short

Delaware Orphan's Court

In re the Petition to Sell Real Estate of Short

120 A. 484, 13 Del. Ch. 428, 1922 Del. Ch. LEXIS 46

DecidedJune 5, 1922

StatusPublished

This text of 120 A. 484 (In re the Petition to Sell Real Estate of Short) is published on Counsel Stack Legal Research, covering Orphan's Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Petition to Sell Real Estate of Short, 120 A. 484, 13 Del. Ch. 428, 1922 Del. Ch. LEXIS 46 (Del. Ct. App. 1922).

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Opinion

The Court

held otherwise. The reason for the ruling was, that the insufficiency of the personal estate to pay the debts supplied the jurisdictional ground upon which the order to sell the real estate rested; that the petitioning bank had not been made a party to the cause by service upon it of notice of the intention to present the petition; that this was the first opportunity it had to be heard in presenting its interests in the matter; and that inasmuch as if the bank had appeared and objected to the issuance of an order upon the original petition, upon the same ground as now appears, the burden would have been upon the executor to sustain the jurisdictional fact, to-wit, the insufficiency of the personal estate, now, when the bank does appear, the burden must still rest upon the executor to sustain the jurisdiction.

The court, therefore, directed that the executor should proceed with proof sustaining the account heretofore filed, by which the insufficiency of the personal estate is alleged to appear.

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The Court

held otherwise. The reason for the ruling was, that the insufficiency of the personal estate to pay the debts supplied the jurisdictional ground upon which the order to sell the real estate rested; that the petitioning bank had not been made a party to the cause by service upon it of notice of the intention to present the petition; that this was the first opportunity it had to be heard in presenting its interests in the matter; and that inasmuch as if the bank had appeared and objected to the issuance of an order upon the original petition, upon the same ground as now appears, the burden would have been upon the executor to sustain the jurisdictional fact, to-wit, the insufficiency of the personal estate, now, when the bank does appear, the burden must still rest upon the executor to sustain the jurisdiction.

The court, therefore, directed that the executor should proceed with proof sustaining the account heretofore filed, by which the insufficiency of the personal estate is alleged to appear.

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Bluebook (online)

120 A. 484, 13 Del. Ch. 428, 1922 Del. Ch. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-petition-to-sell-real-estate-of-short-delorphct-1922.