TITLE 12

Decedents' Estates and Fiduciary Relations

Administration of Decedents' Estates

CHAPTER 31. SUITS AGAINST EXECUTORS AND ADMINISTRATORS

Subchapter I. Suit for Legacy or Distributive Share


(a) An action at law may be maintained against an executor or administrator for a legacy or distributive share that is due. Assets in the executor's or administrator's hands to pay a legacy shall create a legal liability and raise a consequent promise to pay it. If there are not sufficient assets to pay the whole legacy, a part may be recovered. If the delivery of a specific legacy has been refused, the value of it may be recovered by an action at law. There shall be a legal liability to pay a distributive share and a consequent implied promise.

(b) An action at law shall not lie for a legacy which is either directly or by implication the subject of a trust.

Code 1852, §§ 1852-1854, 2591, 2592; Code 1915, §§ 3397, 4520; Code 1935, §§ 3860, 4974; 12 Del. C. 1953, § 3101.;

An infant legatee may sue for the legacy by guardian or next friend, as in other cases.

Code 1852, § 2593; Code 1915, § 4521; Code 1935, § 4975; 12 Del. C. 1953, § 3102; 70 Del Laws, c. 186, § 1.;

If the defense to an action for a legacy is insufficient assets to pay all the debts and legacies, the court shall appoint auditors to examine the accounts of the executor or administrator with the will annexed. The auditors, after full hearing of the parties upon notice to them respectively of the times and places of such hearing, shall report the condition of the accounts, what assets will remain after payment of the debts and what proportion of such residue is properly applicable to the plaintiff's legacy, having regard to all such settlements of the accounts as may have been made before any court or officer having authority to settle the same.

Code 1852, § 2595; Code 1915, § 4523; Code 1935, § 4977; 12 Del. C. 1953, § 3103.;

Exceptions may be taken by either of the parties to the report of auditors and thereupon the court, upon hearing the exceptions, may correct any errors in such report.

Code 1852, § 2596; Code 1915, § 4524; Code 1935, § 4978; 12 Del. C. 1953, § 3104.;

If, upon proceedings under this subchapter, the assets are found insufficient to pay all the debts and legacies of the testator, execution shall be awarded only for such proportion of the assets as may be properly applicable to the plaintiff's legacy, but judgment for the whole legacy shall be entered and shall stand as a security for the payment of the residue of the legacy, when sufficient assets for such payment shall come to the hands of the executor or administrator. A scire facias shall lie for further execution, suggesting that other assets have come to the hands of the executor or administrator.

Code 1852, § 2597; Code 1915, § 4525; Code 1935, § 4979; 12 Del. C. 1953, § 3105.;

The court shall exercise equitable powers in respect to costs. In case of inexcusable neglect or delay on the part of the executor or administrator to pay the legacy demanded or a proportional part thereof the court may order that the costs be paid by the executor or administrator. No costs shall be recovered in an action brought for a legacy without a reasonable demand for the same first made upon the executor or administrator who ought to pay the same.

Code 1852, § 2598; Code 1915, § 4526; Code 1935, § 4980; 12 Del. C. 1953, § 3106; 70 Del Laws, c. 186, § 1.;

The court shall exercise equitable powers in requiring the plaintiff to give security to refund the legacy or any part thereof and also in respect to the delivery and acceptance of a specific legacy.

Code 1852, § 2599; Code 1915, § 4527; Code 1935, § 4981; 12 Del. C. 1953, § 3107.;