Evening journal., 1915-01-04
ORPHANS COURT
RULES EXPLAINED
Chancellor Curtis Addresses
Letter TO State Lawyers
on the Subject
NEW CODE HAS
BEARING IN CASES

Chancellor Charles NJ Curtis, presi
dent Judge of the Orphans Court, has
addressed the following letter TO the
members of the bar of Delaware regard
ing the new rules of the Orphans Court;
Chaucelors Chambers,
Court House, Wilmington.
January J. 1915.
10 the Members OF the Bar Of Dela-
warc;;
Gentlemen. On behalf of the judges
of the Orphans Court. ] desire 70 call
TO your attention the new rules Of the
Orphans Court for partition causes
made necessary by the new statutes
adopted. together with the Revised
Code and which take effect today,
especially direct attention to certain
features of said rules.
They were framed largely in accord
ance with the chancery rules for parti'
| ton causes and are intended to supple
nent the statutes by providing pro-
cedurc not therein enacted The statu
tory requirements are not duplicated in
the rules.
Some Of the matters and methods Of
procedure referred TO BY Chancellor
Bates in his notes TO the chanccry rules
have been embodied in these rules be-
cause hy usage they have been lncof-
poratod into the practice.
Some OF the old Chancery Partition
rules have been omitted notably Rule
%. which required the purchaser at thu
sale TO give a bond TO the trustee TO se
cure the deposit of the purchase money,
instead of paying 1t TO the trustee Ibis
rule was frequently overlooked anu u17
regarded. and seems unnecessary at this
time. whatever the occasion may have
been for IFS adoption originally.
The most radical change is one which
provides method of appralsine the
value OF life estate. as authorized by
the new statutes. so that a dowrcss
tenant by the ourtesy or other life ten
} ant, may obtain cash settlement toi
. all future interest and thereby facil
; tate a speedy distribution Of the balance
}. of the net proceeds OF sale. THIS is g
- be done after hearing. by tn use g
s approved tables. and to be CALCULATES
D according to expectancy Of life lil
5 tables have not yet been decided upo
p and are not appended TO these rules, bu
win be added later.
e Rule 8 is based ON Chancery Rules 2
D and - and ON Section 4 of the new ac'
j and IS supplemented thereto. It ais
3 provides. IN the last two paragraph
h method OF giving the notice to non
p resident and known parties referred Z
IS in Section % of the act.
l. Rule Z is framed 90 call attention
}. matters set ont IN Bates notes, p. :
d at lGl and at p. 81, notes % and lal
n Rulc X emphasizes the effect of IN
r. word "any" in Section of the ac
li which Indirectly authorizes the court
II omit the commission in cases where
y Is evident that there can be no. aet4
n, partition. and is for the purpose OF go
II ing expenses.
r. Rule II is framed because the act IN
f. thorzcs surveys only when the land
J; divided But a survey may be nece'
:; sarv In order Go ascertain boundaries
e, etc. and for that reason may be Q
81 value in case OF a sale. A survey
T., esnoeiallv important in some cases II
!; Sussex county. and TO less extent d
D. Kent county. for descriptions in deed
ih in those counties are very nadequat
e. for purposes Of Identification.
r. Rule Ia is based ON Chancery Rule Z
r. and differs from it in requiring a news
b. paper advertisement in all three coun
&. Ties instead OF IN New Castle count
ly only. II also omits the absurd and dit
I'd regarded requirement for the henor'
to appearance within the first three day
of the term. The requirement. as to cal
culation of interest on liens follows tn
practice heretofore in existing Chancer
partitions.
Rules 2l, 22, % and "a were inspire
II bv notes of Chancellor Bates on p. o.
and are obviously desirable
The forms provided by Chancello
Bates for partition causes in Chancer
ne may generally be used In the Orphani
Sc Court. with the necessary corrections q
nd 10 address, etc.
ed All partition causes now pending
ny Chancery and Orphans Court VIII
10. concluded in those courts in the mann'
u heretofore provided by law such pro
vision having been made in generi
a statute In the new code.
ch These rules were adopted without
s- previous submission thereof to the crit
y. cism of members OF the bar OF the Sta'
nd because there was no opportunity to q
nd so after they were settled upo1 and b
fore they were actually needed 81
re the court win welcome comment.
he Yours truly,
he CHARLES NJ. CURTIS,
et President Judge OF the Orphans Cour
cO