                                COURT OF CHANCERY
                                      OF THE
    SAM GLASSCOCK III           STATE OF DELAWARE                    COURT OF CHANCERY COURTHOUSE
     VICE CHANCELLOR                                                          34 THE CIRCLE
                                                                       GEORGETOWN, DELAWARE 19947


                               Date Submitted: July 12, 2017
                                Date Decided: July 13, 2017

    Steven Schwartz, Esquire                       Mary Ann Collins
    Schwartz & Schwartz P.A.                       97 Gaelic Court
    1140 South State Street                        Magnolia, DE 19962
    Dover, DE 19901

                 Re:    Thomas E. Collins, et al., v. Mary Ann Collins,
                        Civil Action No. 12357-MG

Dear Counsel and Ms. Collins:

         This Letter Opinion addresses Exceptions taken by the Respondent, Mary Ann

Collins (“Ms. Collins”), to the Master’s Final Report in this matter issued on

November 28, 2016 (the “Report”). The case involves a request for partition of a

Kent County residential property, 97 Gaelic Court, Magnolia.1 The property was

owned by Mary Jane Collins, mother to the parties here (“Mother”); upon her death,

the property devolved upon the parties: Ms. Collins and her brothers, Petitioners

Robert and Thomas Collins.2 Robert and Thomas sought a statutory partition of the

house and lot at 97 Gaelic Court (the “Property”). Ms. Collins objected, and brought



1
  The address is misleading—Gaelic Court is in a suburbanizing area of rural southern Kent
County, west of Magnolia. Magnolia itself is not known as a haven for ex-pat Highlanders.
2
  I refer to Mary Jane Collins as “Mother” and Thomas and Robert Collins by their first names,
not out of disrespect, but to avoid confusion due to the instant superabundance of individuals
surnamed Collins.
her objections as a Counterclaim: she requested that the Court direct the parties to

conduct a private sale of the Property and alleged that Robert owes money to, and

that she is entitled to money from, Mother’s estate.

          The Petitioners moved to dismiss the Counterclaim, alleging that the

Respondent had failed to state a claim upon which relief could be granted with

respect to the Petition for Partition, and that this Court lacked jurisdiction over the

estate claims. Mother’s estate (the “Estate”) is in the jurisdiction of a probate court

in Williamson County, Texas.

          In the Report, Master Ayvazian found that the Respondent had not raised a

cognizable defense or counterclaim regarding the statutory partition, and that the

Court lacked jurisdiction over the probate issues. I have reviewed, as I must, the

record and come to a de novo determination of the issues involved.3 After careful

consideration of that record as well as the briefs submitted in support and opposition

to the Exceptions, I affirm the Report in all respects based upon my independent

findings of fact and law.

          In her briefs on Exception, Ms. Collins does not, explicitly, point to error in

the Report. She alleges that the Petitioners wish to sell the Property at auction to

achieve an inadequate price to avoid capital gains tax.4 She points out that the



3
    See DiGiacobbe v. Sestak, 743 A.2d 180 (Del. 1999).
4
    The logic of this argument is not, I confess, entirely clear.
                                                     2
Property would sell for a higher price refurbished and sold at a private sale. While

the relief she seeks is not entirely clear, she presumably would like me to set aside

the Report, order the Petitioners to engage a realtor to attempt a private sale, and (I

assume) order contributions from the cotenants for repairs to enhance the sales price.

Most of her briefing on Exceptions is consumed by arguments in respect to Mother’s

Estate: Allegations that Mother was a resident of Magnolia at the time of death, and

that the will should therefore have been probated and the Estate administered in Kent

County, Delaware and not Williamson County, Texas; that one of the Petitioners and

the Executor of the Estate conspired to create a fraudulent death certificate to permit

probate in Texas; and that the administration of the Estate has been unfair to her. As

to the latter, she alleges that she has been allocated an unfair share of expenses, that

Estate debts have not been collected, and that she has been treated unfairly in

connection with the Estate, to the tune of tens of thousands of dollars. Those

allegations, if proven, are serious, of course. They must be pursued, however, in the

court that has jurisdiction, in the first instance, to determine whether the allegations

have merit; that is, Texas Court of Law No. 4, in Williamson County, Texas. The

Master correctly recommended that such claims be dismissed without prejudice for

lack of jurisdiction. I turn, then, to the Exception addressed to the partition.

      The parties are coparceners of the Property; tenants-in-common. Any one or

more cotenants may petition for partition, which is a statutory right that inheres in

                                           3
joint estates in real property.5 Where, as all parties concede is the case here, the

property cannot be partitioned in kind without destroying its value, any cotenant has

the right to an auction sale conducted by a trustee at “public vendue.”6

         Ms. Collins points out that property routinely sells at a discount at a public

auction, and argues that repairs to the Property before sale would enhance net value

here as well. Perhaps so. The cotenants have a statutory right to a partition sale,

notwithstanding. The Respondent has no right to frustrate such a sale by imposing

non-statutory conditions upon it. As the Master correctly found, the Counterclaim

must be dismissed, and a statutory trustee appointed to conduct the sale at public

vendue.

         This is an unsatisfying case for a Court of Equity. With regard to the Estate

of Mother, to the extent Ms. Collins’ allegations are sincere and provable, they are

nevertheless beyond my jurisdiction to remedy. With respect to partition, her

objections are easy to comprehend but legally frivolous. The Counterclaims alleging

estate wrongdoing are dismissed for lack of jurisdiction, without prejudice. The

Counterclaims regarding partition are dismissed with prejudice. The Petitioners

should present a form of order within one week, providing for appointment of a

statutory trustee to sell the Property. If Ms. Collins is still residing in the Property,



5
    25 Del. C. § 721.
6
    25 Del. C. § 729.
                                            4
the parties and the trustee should consult on the timing of sale and vacation. I retain

jurisdiction to impose the Order and to resolve any issues arising in the partition sale.

      To the extent the foregoing requires an Order to take effect, IT IS SO

ORDERED.

                                               Sincerely,

                                               /s/ Sam Glasscock III

                                               Sam Glasscock III




                                           5
