Hyperlawhypertext legal databasebeta State ex rel. Pepper v. Warrington 4 Del. 55

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State ex rel. Pepper v. Warrington

4 Del. 55 4 Harr. 55 Court Del. Super. Ct. English

Contents

Majority

p. 55
The STATE for the use of DAVID PEPPER and Wife vs. COARD WARRINGTON, Ex’r. of ANN WARRINGTON, dec’d.

Headnote

A bequest of personal property for life, without any farther or other limitation of it over, seems to be an absolute gift.
Personal property may be limited over after a bequest for life, by way of executory bequest.
No limitation can be made of specific chattels, the use whereof consists in the consumption.
Narr. in assumpsit. Demurrer. Case stated.
Joseph Warrington by his last will' and testament, bequeathed to his wife Ann “ one-third of his personal estate during widowhood, and after her death or marriage,” then to .his seven daughters (of whom plaintiff’s wife was one,) to be equally divided among them. In pursuance of this bequest the executor of Joseph Warrington paid to Ann Warrington $278, as a third of the clear residue of the personal estate of Joseph Warrington. The widow, Ann Warrington, afterwards died, having made Coard Warrington, the defendant, her executor and residuary legatee, to whose hands assets came sufficient to pay over said legacy or bequest. This suit was instituted by Pepper and wife, one of the daughters of Joseph Warrington, and devisee over of said legacy after the life interest of Ann Warrington was spent, to recover from Mrs. Warrington’s executor the one-seventh of said legacy.
Wootten, in support of the demurrer.
—They cannot recover 1st Because the gift to the wife of this personal property for life was an
p. 56
absolute gift,[1] 2d. It was not a sum due from Mrs. Warrington in her lifetime, and cannot be proved as a debt against her estate.
p. 57
Ridgely, contra.
—1st. This is a good bequest in remainder though of a chattel interest. Things which are consumed in the use go absolutely to the first taker; specific bequests may be limited over. (2 Wms. Ex’r. 858; 2 Kent Com. 352; 2 Wms. Ex’r. 859; 2 Term Rep. 376; 22 Law Lib. 132-3.) 2d. If plaintiffs were entitled to a
p. 58
share of this property on the death of Mrs. Warrington, from whom were they entitled to recover it ? It went into the possession of the executor of Mrs. W., as a part of her estate, and he was bound to pay it over to the party entitled to it. The non-payment of it is a breach of Iiis bond.
p. 59
Ridgely, for plaintiff
Wootten, for defendant.
The executor of Joseph Warrington could not be sued, because he was bound to pay to the legatee for life, on filing the inventory. (2 Wms. Ex’r. 859; 2 Kent Com. 352.)
Wootten replied:
—The authorities cited prove that the executor is justified in paying to the tenant for life, only under certain circumstances, on filing an inventory and statement that they are held only for life.

The case assumes that Mrs. Warrington was- not bound to pay this money to the legatees over during her life, and her executor or estate are not entitled to the possesison of it after her death. How then can a suit lie against the executor of Mrs. Warrington for a debt not due from his testatrix, or for money not in his hands as executor 1

gave judgment for plaintiff.