Patton v. Jones

3 Del. Cas. 11

• Court: Court of Chancery of Delaware
• Decided: April 15, 1822
• Status: Published

Opinion

And the Chancellor further declares that the legacy bequeathed to Benjamin Jackson, and to James Kennedy of the Iron Hill, to Isaac Hill of the same place, to William McCIement and to Catherine Price, respectively, are severally to be deducted from the personal estate of the said testator Morgan Jones, before the same is divided into moieties, and that the said legacies should be retained by the surviving executor, James Patton, to be paid to the said legatees, which said legacies may be paid immediately though there are times limited in said will beyond which their payment cannot be postponed.³

And the Chancellor further declares that the proceeds of sale of the real estate directed by the said will to be sold (the plantation on which the testator lived excepted) are to be considered as personal estate, and may pass under the description of personal estate, and be applied to the payment of debts of the testator, and to the pecuniary and residuary legacies bequeathed in the will (except the legacies to be paid out of the proceeds of the sale of the dwelling plantation), such being the intention of the testator.⁴ He has directed the sale to be made by his executors as soon after his decease as may be thought by them advantageous for the benefit of his estate; he has directed that all his lawful and just debts should be paid out of his estate; he has bequeathed several legacies to be paid by his executor, and he has not specially bequeathed the money arising from such sale. Hence it is clearly to be inferred that he intended that this money should be taken as personal property, and be converted into a general personal fund to be applied by his «executors, in a due course of administration, according to his will. By directing the real estate to be sold as soon as the executors should judge such sale to be advantageous for the benefit of his estate, he had in view such an application of the money arising from the sale as would most effectually enable the executors to pay the creditors and legatees the debts and legacies charged on his estate, in a manner the most beneficial to them, and so as most speedily to effectuate the general intention of his will.

And the Chancellor further declares that the expenses which accrued in making the sale of the dwelling plantation of the testator, and the compensation to which the executor is entitled for his service therein are to be retained out of that sale, and are not to be charged upon the general personal fund of the said estate; and that the balance of the proceeds of sale of said plantation, after deducting said expenses and compensation, is to be paid to the children of said Zachariah Jones, and to the children of said Sarah Mason, as is directed by the said last will.

And the Chancellor further declares that all the expenses: which accrued in the maintenance of the child with which the said Mary Jones was pregnant at the time of the testator’s death, in its illness and burial, are not to be paid out of the sale of the dwelling plantation of the testator, but are to be paid out of that part of the general personal fund, which was bequeathed to the said child, that is to say, from the two third parts of the said general personal fund, and that the said James Patton, executor of the last will of the said Mary Jones pay one fourth part of said expenses, and that the other three fourth parts of said expenses be paid out of the moiety bequeathed to Morgan Jones Thomas,. Samuel Mason, son of John, and the children of Zachariah Jones, in proportion to their respective parts or shares of said moiety.

And the Chancellor further declares that the said James'. Patton, executor of the last will and testament of the said Mary Jones, deceased, is entitled as such executor, to the services of Hannah the black, so as to complete the period of seven years, next after the decease of the said Morgan Jones. And that the said James Patton, executor as aforesaid, is entitled as such executor to the service of Samuel Stephenson until the said Samuel shall arrive to the age of 24 years. And that the said James Patton executor of the last will of the said Mary Jones, at the expiration of said term of seven years, will be liable and bound to pay out of the assets of said Mary Jones, to the said Hannah, $100, and two suits of good substantial wearing apparel; and that he the said James Patton, executor of the last will of said Morgan Jones will be liable and bound to pay to the said Samuel Stephenson, at the expiration of the term of service of him the said Samuel, out of the general personal fund of the estate of the said Morgan Jones, $150.

It is therefore ordered, adjudged and decreed by the Chancellor, that the said James Patton, executor of the said last, will and testament of the said Morgan Jones, do pay out of the general personal fund of the estate of the said testator, including therein the goods and chattels, rights and credits which were of the said Morgan Jones, and the proceeds of sale of the real estate directed by the said will to be sold (the plantation on which the said testator lived excepted) all debts which were lawfully and. justly due from the said testator at the time of his death; that he the said James Patton, executor as aforesaid of the said Mary Jones, retain out of the said general personal fund the $2000 bequeathed to the said Mary Jones, if the same have not already been received and retained by the said Mary in her lifetime; and" that he the said James Patton, executor of said last will of said Morgan Jones, pay or retain out of the said general personal fund the legacy of $400 bequeathed to the said Zachariah Jones; and the legacy of $100 bequeathed to Sarah, Eliza, and Zachariah respectively, children of Zachariah Jones, brother of the testator; and the legacy of $200 bequeathed to Hannah and Morgan respectively, other children of the said Zachariah; and the legacy of $125 bequeathed to Joanna, Sally, Morgan, John, and Arthur respectively, children of the said Sarah Mason, sister of the said testator; and to Benjamin Jackson, son of Elizabeth Jackson, late of Pencada Hundred, the sum of $1500 bequeathed to him, the said Benjamin; and that he pay to James Kennedy, aforesaid, the sum of $200; to Isaac Hill aforesaid, $100; to William McClement $50; to Catharine Price, $50; legacies bequeathed as aforesaid to the said James, Isaac, William, and Catharine, respectively; and that he the said James Patton retain out of the said general personal fund $150 to be paid to the said Samuel Stephenson at the expiration of the term of service of him the said Samuel.

And it is further ordered, adjudged and decreed by the Chancellor that all expenses which accrued in the maintenance of the child with which the said Mary Jones was pregnant at the time of the testator’s death, in its illness and burial, be paid out of the residue of the said general personal fund bequeathed by the said testator, one moiety to his wife Mary Jones, and the other moiety to Morgan Jones Thomas, Samuel Mason, son of John, and the five children of said Zachariah Jones, and that such payment be made by the said James Patton, executor as aforesaid of the said last will of said Morgan Jones, in manner following that is to say that he the said James Patton, executor as aforesaid Of said Morgan Jones, retain out of the moiety as aforesaid bequeathed to said Mary Jones one fourth part of said expenses, and that he the said James retain out of the other moiety bequeathed to Morgan Jones Thomas, Samuel Mason, son of John, and the five children of Zachariah Jones in proportion to their respective parts or shares of said moiety the other three fourth parts of said expenses, and that the money so retained by the said James Patton be applied by him in discharge of said expenses.

And the Chancellor further orders, adjudges and decrees that the said James Patton, executor of the last will of Morgan Jones, do pay the proceeds of sale of the mansion or dwelling plantation late of said Morgan Jones, first deducting thereout the expenses which accrued in making sale of said plantation, and the compensation to which the said James is entitled for his service therein as follows, that is to say, that he pay to the said Benjamin Masden and Hannah his wife, to Sarah Jones, Eliza Jones, Morgan Jones, and Zachariah Jones, which said Hannah, Sarah, Eliza, Morgan, and Zachariah are children of Zachariah the brother of the said testator, to each of them, one equal fifth part of two third parts of the neat balance of said proceeds of sale, and to Thomas Middleton and Joanna, his wife, William Porter-field and Sally, his wife, Morgan Mason, 'John Mason, and Arthur Mason, which said Joanna, Sally, Morgan, John, and Arthur are children of Sarah Mason, the sister of said testator Morgan Jones, to each of them, one equal fifth part of the remaining one third part of the neat balance of said proceeds of sale.

And the Chancellor further orders, adjudges, and decrees that the said James Patton, executor as aforesaid of the last will of said Mary Jones, retain in his hands one moiety of the residue or surplus of the said personal estate on general personal fund, bequeathed to the said Mary Jones on the death of the said child, under age or without issue as aforesaid; and that he the said James do pay the other moiety thereof as follows, that is to say: to the said Morgan Jones Thomas, $600; to Samuel Mason, son of John Mason, the son of Sarah Mason, sister of the said testator, $200; and the residue of said other moiety or surplus to Benjamin Masden and Hannah, his wife, Sarah Jones, Eliza Jones, Morgan Jones, and Zachariah Jones, children as aforesaid of said Zachariah Jones, equally between them, that is to say, to each of them one equal fifth part thereof.

And it is further ordered, adjudged and decreed by the Chancellor that the said James Patton, executor as aforesaid of the said last will and testament of the said Morgan Jones, and of the last will and testament of said Mary Jones, do pass an account of his administration of the goods and chattels, rights and credits, which were of the said Morgan Jones, deceased, and that he charge himself in the said account with the goods and chattels, rights and credits, which were of the said Morgan Jones according to the due course of administration; and that in the said account he charge himself, in distinct and separate charges, with the proceeds of the sale of the real estate directed by the said will of said Morgan Jones to be sold, including the proceeds of sale of the dwelling plantation late of the said Morgan Jones, as well as the proceeds of sale of all other the real estate late of the said Morgan Jones, deceased, which has been sold by him, the said James, showing in the account of sale of the said dwelling plantation the amount of sale, deducting therefrom the expenses which accrued in making said sale, and the compensation allowed to the said James by the Register for his trouble therein, and carrying into the amount of charges the neat balance of such sale; and that such expenses and compensation be stated so that the particular items of deduction may appear; and that in said account the said James account for all other matters and things with which he the said James, executor as aforesaid of the last will of said Morgan Jones, is chargeable. And that in the said account he the said James be credited with all debts paid, funeral charges and other expenses incidental to his administration, and with the $2000 retained by him, or the said Mary Jones, being the legacy bequeathed to the said Mary, and with all the legacies paid or retained according to the true intent and meaning of said last will of said Morgan Jones, as herein before is declared, ordered, and directed.

And it is further ordered, adjudged and decreed by the Chancellor that the said account be passed before the Register for the Probate of Wills and Granting Letters of Administration, on or before the first day of July next, and that the same be remitted to this Court forthwith after the same shall be passed, and that any of the parties have liberty to except thereto in this Court, on or before the first day of July next, and that the exceptions, if any be made, be heard at the next term, and that the witnesses be examined at the bar of this Court.⁵

And the Chancellor orders, directs, and decrees that the costs of this suit be paid by all the parties in proportion to the respective shares, parts, and legacies arising out of or accruing to them under the said last will of the said Morgan Jones, deceased, and herein declared, ordered, and decreed upon, except Hannah the black and Samuel Stephenson who are not to pay or bear any part of said costs.

And the Chancellor reserves to himself the liberty to make such further and other order and decree herein as shall be agreeable to equity and good conscience.

The following statement is made, to exhibit the Chancellor’s view of the disposition to be made of the personal estate, including therein the sale of land, except the dwelling plantation.

The child died under age, and without issue, and after the payment of funeral charges, and debts of the testator, the clear surplus may be supposed to be $18,000.

The widow takes her pecuniary legacy of.. [$]2000.00

Zachariah Jones ....................... 400.00

The five children of Zachariah Jones---- 700.00

The five children of Sarah Mason........ 625.00

Benjamin Jackson ..................... 1500.00

James Kennedy........................ 200.00

Isaac Hill ............................. 100.00

William McClement .................... 50.00

Samuel Stephens on at 24 years of age..... 150.00

5725.00

The residue is $12,275, of which the widow takes

Of the other moiety of the residue Mor-

Samuel Mason, son of Sarah Mason’s

The residue of the other moiety, Z.

Jones’s five children.............. 5337.50

6137.50

$18,000.00

Then to ascertain the proportion of expenses for the maintenance of the child, its illness and burial.

Had the child lived it would have taken % of $12,275 ................................ 8183.331/3

But as the child died, % of 8183.33% is to be deducted, to be added to the share of the widow, increased to a moiety.............. 2045.83%

One moiety......................$6137.50

Widow’s % ............................... 4091.66%

Add % of 8183.33% to give her a moiety (6137.50) .............................. 2045.83%

$6137.50

Then, as the widow’s share has been increased by the child’s death, one fourth, she should pay a fourth of its expenses and the other legatees, three .fourths. The child’s whole share should pay its expenses. The widow’s part of the child’s two thirds is but one fourth, and the other legatees, three fourths, as they get so much of it.⁶

3 Footnote by Ridgely, “See 3 P.Wms. 119, Cooper v. Scot et al. 3 P.Wms. 172, Wilson v. Spencer.”

4 Footnote by Ridgely, “Prec.Ch. 37, Lumly v. May; devise of all testator’s goods, chattels and estate whatsoever on condition to pay his debts and legacies. These words pass his real estate, he having, by his will, given considerable legacies to his eldest son, and other legacies, and the surplus of his estate, after his wife’s death to be equally divided among his four children. 1 Ves.Jr. 426, devise of land to be sold; money produced by the sale charged with simple contract debts on implied intention, though doubtful. 2 Ves. Jr. 267, 268; all the real quality of the estate was destroyed by the absolute directions to the trustee to sell, in order to effect the intent of the will. See 3 Ves. Jr. 551, 5 Ves. 362. 8 Ves. 592, money arising from real estate may pass under the description of personal estate upon the intention.”

5 Note by Ridgely, “It was a mistake in ordering the account to be passed on or before the first day of July next. It should have been June.”

6 At Ridgely’s Notebook IV, 561, appears the following note, “Court of Chancery of the State of Delaware, New Castle County, April 22, 1825. James Patton, Executor of Morgan Jones, v. Zachariah Jones and, others. See pp. 13-23 [ante]. An account was passed pursuant to the decree heretofore made; and the hearing now is upon exceptions taken by Zachariah Jones and others, to the account so passed by James Patton.” There follow fragmentary notes of this hearing, which was continued to the next term. Beginning at Ridgely’s Notebook IV, 685, Court of Chancery, New Castle, August 27, 1825, appear further fragmentary notes of this hearing. At 6&7 appears the note, “Decree made,” with no details given.