Chapter 31

§ 3101 Action at law. (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; § 3102 Action by infant legatee. 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; § 3103 Appointment of auditors; duties. 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; § 3104 Exceptions to auditors’ report. 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; § 3105 Judgment and execution. 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; § 3106 Costs; liability of personal representative therefor. 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; § 3107 Security to refund legacy. 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; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 3121 Consequences of instituting suit without presenting claim. If in an action against an executor or administrator for a debt against the decedent the affidavit required by § 2104 of this title is not produced by the plaintiff, the action shall, upon motion, be dismissed and if such action has been brought, without previously exhibiting to the defendant an affidavit in due form, the plaintiff shall not recover any costs, unless the action has been controverted. The question of disallowance of costs shall be decided by the court on a rule to show cause, which shall not be granted unless the exhibiting of an affidavit be denied on oath or affirmation. Code 1852, §  1836; Code 1915, §  3376; Code 1935, §  3841; 12 Del. C. 1953, §  3121; § 3122 Process; default judgment and proceedings thereon. In an action against an executor or administrator the first process shall be a summons. If the defendant, being summoned, does not appear, judgment by default shall be entered against the defendant and upon such judgment the Superior Court may, upon motion, order the Prothonotary to ascertain the amount in which case, at least 5 days’ written notice shall be given to the defendant of the time when the Prothonotary will consider the case and execution may be issued as soon as the amount is ascertained or, upon such judgment by default, a rule of reference may be entered as prescribed in Chapter 47 of Title 10 or a writ of inquiry awarded if it be a case proper for the writ. Code 1852, §  1863; Code 1915, §  3400; Code 1935, §  3863; 12 Del. C. 1953, §  3122; 70 Del Laws, c. 186,, §  1; § 3123 Effect of judgment against executor or administrator. (a) The effect of judgments against executors or administrators, on the report of referees, as to the question of assets and the lien of such judgments on the real estate of the deceased shall be as provided by Chapter 47 of Title 10. (b) Judgments before justices of the peace against executors and administrators shall be judgments of assets. Writs of scire facias upon a suggestion of waste may be sued out and tried. Judgment and execution shall be awarded, as provided by § 9542 of Title 10. Code 1852, §  1864; Code 1915, §  3401; Code 1935, §  3864; 12 Del. C. 1953, §  3123; § 3124 Costs; allowance in account. Costs shall be awarded to and against executors and administrators in like manner as other parties, but costs awarded against them shall not be allowed in their accounts, unless the court shall certify the propriety of such allowance or there is other good evidence that they were properly incurred. Code 1852, §  1865; Code 1915, §  3402; Code 1935, §  3865; 12 Del. C. 1953, §  3124; § 3125 Suit for specific performance of decedent’s contract for sale of real estate; proof and recording of contract; effect of deed. (a) Before suit shall be brought against an executor or administrator upon a written contract of the decedent under seal or under hand and attested by 1 or more witnesses for the conveyance of any real estate within the State, the person with whom such contract was made or who is entitled to the benefit thereof, either as heir, devisee, assignee or otherwise, shall cause the contract to be proved in the Court of Chancery in the county where the premises are situated and recorded in the recorder’s office therein and shall thereupon apply to the executor or administrator for the fulfillment of the contract. Thereupon, the executor or administrator, if the consideration of the premises has been paid or upon payment thereof, may exhibit to such Court a petition stating the facts and praying authority to convey the premises in execution of the contract. The Court may inquire into the case and order specific performance of the contract, according to equity and good conscience. A deed made pursuant to such order shall be as effectual as if executed by the decedent in the decedent’s lifetime. (b) If the premises lie partly in 2 counties, the proof may be taken and the order made in either, but the contract must be recorded in each. (c) If it is evident that the executor or administrator cannot fulfill the contract specifically or if it is a case in which a specific execution ought not to be accepted, proceedings under this section shall not be necessary. (d) If a suit is brought against the true intent of this section, the Court may dismiss the action. Code 1852, §§  1859-1862; Code 1915, §  3399; Code 1935, §  3862; 12 Del. C. 1953, §  3125; 70 Del Laws, c. 186,, §  1; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }