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COURT OF CHANCERY

OF THE

STATE OF DELAWARE

KIM E. AYVAZIAN

MASTER IN CHANCERY

CHANCERY COURTHOUSE

34 The Circle

GEORGETOWN, DELAWARE 19947

AND

LEONARD L. WILLIAMS JUSTICE CENTER

500 NORTH KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19980-3734

November 28, 2016

Steven Schwartz, Esquire

Schwartz & Schwartz

1140 South State Street

Dover, DE 19901

Mary Ann Collins

97 Gaelic Court

Magnolia, DE 19962

RE: Thomas E. Collins and Robert L. Collins v. Mary Ann Collins

C.A. No. 12357-MA

Dear Counsel and Ms. Collins:

I have reviewed the Motion to Dismiss Respondent’s Counterclaim filed by 

Petitioners Thomas E. Collins and Robert L. Collins in this partition matter. For 

the reasons that follow, I recommend that the Court grant the motion to dismiss.

On May 18, 2016, Petitioners filed a petition for partition of real property 

located at 97 Gaelic Court, Magnolia, Delaware, which consists of a building lot 

containing approximately 22,200 square feet improved by a single family house. 

The real property had been owned by Mary Jane Collins (hereinafter “the 

Decedent”), who died testate on September 21, 2010, survived by three children, 
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Petitioners and Respondent Mary Ann Collins. In her Last Will and Testament, the 

Decedent gave the residue of her estate to her three children in equal shares. The 

real property is now owned by the parties as tenants in common, each party owning 

an undivided one-third interest in the property. Respondent currently resides in the 

house located on the real property. 

On July 8, 2016, Respondent filed her answer to the petition and a 

counterclaim. Although she does not dispute that physical partition of the property 

is impractical, Respondent disagrees with the appointment of a trustee to conduct a 

public auction, and claims that a private sale would be a better option after her 

brother Robert L. Collins first pays $57,000 that he allegedly owes to the 

Decedent’s estate, and returns a gun collection that the Decedent allegedly gave to 

her grandson Edward L. Stein. Respondent also claims that she is owed 

unspecified property and money from Decedent’s estate, and is planning on billing 

the estate for her services to her mother during her mother’s final years. 

Petitioners have moved to dismiss the counterclaim because: (a) it fails to 

state a claim on which relief can be granted, (b) Respondent lacks standing to 

assert claims of any debts allegedly owed to the estate or a gun collection allegedly 

belonging to Edward L. Stein, and (c) matters pertaining to the Estate of Mary Jane 

Collins are within the exclusive jurisdiction of the of the Williamson County, 

Texas Court at Law No. 4, where the Estate was administered. In turn, 
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Respondent argues that the counterclaim should not be dismissed because: (a) she 

has been suffering from the illegal actions of her brothers over the past six years, 

(b) her mother’s estate should have been administered in Delaware, not Texas, and 

(c) she needs more time to (i) recover the estate property and money that was taken 

from her and to sue the personal representative, Thomas E. Collins, for recovery if 

needed, (ii) find and finance a new home for herself, (iii) repair and spruce up the 

Delaware real property so it can be listed at an optimum price, and (iv) wait for a 

qualified buyer.

Under 25 Del. C. § 721, whenever two or more persons hold land as tenants 

in common, any one or more of them may present a petition to the Court of 

Chancery requesting partition of the real estate among the parties entitled to such 

land. If partition in kind is not possible due to the small size of the real estate or is 

otherwise detrimental to the parties’ interest, then the Court “shall make an order 

for the sale of the premises by a trustee appointed for that purpose, at public 

vendue, to the highest bidder....”1 None of the numerous allegations in 

Respondent’s counterclaim state a claim for relief from a partition proceeding and 

from the requirements of a trustee’s sale by public auction. Furthermore, while 

this Court has subject matter jurisdiction over the real property at issue, it lacks 

 

1

25 Del. C. § 729. 
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subject matter jurisdiction over the Estate of Mary Jane Collins,2 which was 

administered in Texas where the Decedent’s will was admitted to probate.

3

 

Accordingly, none of Respondent’s complaints about the administration of her 

mother’s estate or about any property or monies allegedly owed to the Estate of 

Mary Jane Collins or to any beneficiary of the Estate of Mary Jane Collins may be 

heard by this Court, and should be dismissed. An order appointing a trustee to 

conduct a partition sale of the real property should be issued as soon as this report 

becomes final. 

For the reasons stated above, I recommend that Respondent’s counterclaim 

be dismissed. I am waiving a draft report and issuing my recommendation as a 

final report. I refer the parties to Court of Chancery Rule 144 for the process of 

taking exception to a Master’s Final Report. 

Respectfully,

/s/ Kim E. Ayvazian

Kim E. Ayvazian

Master in Chancery

KEA/kekz

 

2

See Martelli v. Martelli, 1983 WL 20292, at *2 (Del. Ch. April 14, 1983). 

3

See Exhibit B, Respondent’s Appendix To: Opening Brief of Petitioners, Thomas 

E. Collins and Robert L. Collins, in Support of their Motion to Dismiss 

Counterclaim of Respondent, Mary Ann Collins.