Ridgely’s Notebook I, 138
Orphans’ Court of Delaware, Kent County.
August, 1817.
Page 341
Appeal from a distributive account of the surplusage of the personal estate of David Kennedy, the elder, passed November 14, 1816.
The clear residue of the personal estate of David Kennedy amounted to $6962.14. This residue the Register distributed in four equal parts between William Kennedy, Mary Stewart, the wife of the appellant, Margaret Kennedy, and David Kennedy, now deceased, the children of the testator, William Kennedy, each share amounting to $1739.75; and distributed no part of said residue to the appellant, as executor of Margaret Kennedy, the wife of David Kennedy, who survived him, and was one of the executors of the last will of the said testator. The appellant, David Stewart, claimed that his testatrix, Margaret Kennedy, who survived the said David, was entitled as the widow of the said testator to one full equal third part of the clear balance of the said testator.
David Kennedy made his will December 6, 1802. It was proved January 18, 1803. He bequeathed to his wife, the said Margaret, as follows, “I give and bequeath unto my loving wife her choice of my horses and my carriage and one feather bed and furniture such as she may choose in lieu of her thirds of my personal estate.” He then devised to his son William a plantation in New Castle County, near Port Penn; his old mansion house in Duck Creek Cross Roads with the ground and improvements thereon, also the house and half of the lot where Amos Hartshorn lived, and a lot of ground of two acres in the possession of Thomas Kennedy; also two houses and lots in East-on in Maryland; also a plantation in Appoquinimink Hundred in New Castle County, “unto my said son William Kennedy during his natural life and after his death I give and devise the same lands houses and lots with their appurtenances unto the issue of my said son William Kennedy lawfully of his body begotten.” He then devised to his daughter Mary Kennedy his dwelling plantation with the open stove in the big room; also a school house in Duck Creek Cross Roads with half the lot in the tenure of Amos Hartshorn, “unto my said daughter Mary Kennedy during her natural life and after her death I give and bequeath the same lands houses and lots as before mentioned with their appurtenances unto the issue of my said daughter Mary Kennedy lawfully begotten of her body.” “I further give and bequeath unto my said daughter Mary Kennedy one share in the Bank of North America.”
He then devised to his son David Kennedy a plantation in Little Creek Hundred near the Fast Landing; also a brick house, stable, and garden occupied by Daniel Lowber; also a brick
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room in the tenure of Thomas Dixon all being in Duck Creek Cross Roads; also a lot of ground of fifteen acres; also a small house in Duck Creek Cross Roads in the tenure of Thomas Ma-berry, “unto my said son David Kennedy during his natural life, and after the death of my said son David, I give and devise the same lands and houses with their appurtenances unto the issue of my said son David Kennedy lawfully by him begotten. I further give unto my son David the reversion to a house and lot in Easton to which I am entitled by the will of Jason Kennedy after the death of his widow now Mary Trip.”
Then to his daughter Margaret Kennedy he devised a plantation in New Castle County; also a tract of Marsh Cripple and Upland, of fifty acres in the same county; and another plantation in the same county; also a house and lot in Irish Town, also a lot with a house thereon, together with an undivided third part of a lot of three acres in Duck Creek Cross Roads; “unto my said daughter Margaret Kennedy during her natural life and after her death I give and bequeath the same before mentioned lands houses and lots with their appurtenances unto the issue of my said daughter Margaret Kennedy lawfully begotten of her body.”
“It is my will and desire that if either of my children should die without lawful issue that the survivor or survivors shall have and enjoy the estate of the deceased brother or sister by equal shares during life and in case all my children die without lawful issue, or they and their issue die without issue it is then my will and desire that the reversion of my estate shall go to the Nook family.”
He bequeathed to James Nook £200 to be paid to him when he arrived to 21, out of his estate.
“Item it is my will and desire that my executor hereinafter named shall appraise and sell for cash all my personal estate except what is otherwise devised, and that after my just debts, legacies and funeral expenses are paid it is my will and desire that my executor shall lay out all monies coming into their hands from my estate in the purchase of bank stock.”
He then gave to his daughter Margaret a bond due from J. N. for £214.7 and another bond due from B. S. for £235.14.5;: “but my estate is not to be bound for their solvency.”
Lastly he appointed his wife, Margaret Kennedy, and his son William Kennedy, executors.
This case was submitted to the Court without argument.
Ridgely for the appellant.
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BY THE COURT.
Doctor Stewart, the executor of Margaret Kennedy, claims one third part of the residue of the personal estate of her husband, David Kennedy, on the supposition that that residue was not disposed of by his will, and that she, as his widow, was entitled to one third part thereof under the intestate laws of this state.
The first question which offers is, whether the testator did die intestate as to this residue. Secondly, whether the executors took this residue beneficially or as trustees; and thirdly, whether Margaret, the widow, was, in any event, entitled to any part of the residue.
It seems to be admitted by the exceptions taken to the account passed by the Register that the executors were not entitled to the residue; otherwise Margaret Kennedy would have had a right to a moiety. There is no express gift to the executors of this residue; neither is it plainly inferred by any part of the will. On the contrary, the directions to sell the personal estate not given away, and after the payment of debts, legacies and funeral expenses to lay out all monies going into their hands from his estate in the purchase of bank stock, clearly imply an intention in the testator different from that of bequeathing the residue to the executors. Had he intended that they should take, he would in all probability have left the management of this residue to their own discretion. Further, the devise to Margaret Kennedy, his wife, of the horse and carriage, and feather bed and furniture in lieu of her third of the personal estate leaves no doubt that he did not intend that she should take to her own benefit a portion of this residue; and consequently the executors are not entitled to this residue by any express declaration or plain inference. To support the devise to them, both must take. There is no case where one executor is a trustee and the other is not, and consequently they both hold whatever is disposed of under the will, as trustees. For the cases on this subject see White v. Evans, 4 Ves.Jr. 21; Clennel v. Lewthwaite, 2 Ves.Jr. 465, 644; and the cases on this subject remarkably well stated and digested in Mr. Cox’s[1] note upon Farrington v. Knightly, 1 P.Wms. 550.
If this residue was not given to the executors for their own use to whom was it given? Clearly no part of it was given to Margaret Kennedy, the wife. The testator gave her a horse, carriage, bed and furniture in lieu of her third of his personal estate. He has here expressly negatived to her taking any part of the personal estate other than the articles specifically be-queathed.
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He, or the writer of the will, probably supposed that whether he died testate or intestate, she would be entitled to a third part of the residue unless he expressly cut her off, as it is commonly called, or forbid her to take any part of it. This was not necessary, for she could take nothing but by his will, except in case of intestacy. It proves, though, most unequivocally, that as to her he did not die intestate; and that he manifestly intended that she should take nothing as his widow. The amount of his bounty to her was the articles given to her; and beyond those he denies her any share. I cannot conceive how she could possibly take any other part of the personal estate, when he so clearly and intentionally withholds it from her. I am warranted in principle in this opinion; but I am not without authority. I Brasbridge and others v. Woodroffe, 2 Atk. 68, it was decreed that, though the executors had legacies, yet as the testatrix had always declared the next of kin should have nothing, the executors should take the undisposed residue; because, as the Master of the Rolls said, if he should give the residue to the next of kin, he should give it contrary to the intention of the testator.
It follows then that as this residue was not given to the executors, and as the widow is not entitled as widow to any portion of it, that it must be distributed among the children of the testator, David Kennedy; and consequently that the account passed before the Register is right.
Appeal dismissed, account confirmed, and appellant to pay costs.