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OBERLY v. KIRBY

592 A.2d 445 (1991)

Charles M. OBERLY, III, Attorney General of the State of Delaware, Allan P. Kirby, Jr., Grace K. Culbertson, and Ann K. Kirby, Plaintiffs Below, Appellants, v. Fred M. KIRBY, II, Walker D. Kirby, Fred M. Kirby, III, S. Dillard Kirby, Alice K. Horton, Jefferson W. Kirby, and F.M. Kirby Foundation, Inc., a Delaware corporation, Defendants Below, Appellees, v. Allan P. KIRBY, Jr., Grace K. Culbertson, and Ann K. Kirby, Cross-Claim-Defendants Below, Appellees.

Supreme Court of Delaware.

Rehearing en banc: January 15, 1991.

Decided: June 4, 1991.

Attorney(s) appearing for the Case

Fred S. Silverman, Chief Deputy Atty. Gen. (argued), and Ann Marie Johnson, Deputy Atty. Gen. (argued), Dept. of Justice, Wilmington, for appellant Charles M. Oberly, III, Atty. Gen. of State of Del.

Edmund N. Carpenter, II (argued), and Emily B. Horton, Richards, Layton & Finger, Wilmington, for individual appellees Fred M. Kirby, II, Walker D. Kirby, Fred M. Kirby, III, S. Dillard Kirby, Alice K. Horton and Jefferson W. Kirby.

Aubrey B. Lank and Brian A. Sullivan, Theisen, Lank, Mulford & Goldberg, Wilmington, for appellee F.M. Kirby Foundation, Inc.

Grover C. Brown (argued), Edward M. McNally and Mary M. Johnston, Morris, James, Hitchens & Williams, William Prickett (argued), Wayne N. Elliott and Donna A. Hoch, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington (Robert P. Buford and George R. Pitts, Hunton & Williams, Richmond, Va., of counsel), for appellants Allan P. Kirby, Jr., Grace K. Culbertson and Ann K. Kirby.

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH and HOLLAND, JJ., constituting the Court

WALSH, Justice:

The opinion in this case dated November 19, 1990, which was released after argument before a panel of three justices and which affirmed the decision of the Court of Chancery, is withdrawn. The following opinion of the Court en banc is substituted.

This is an appeal from a bench ruling of the Court of Chancery that granted a motion to dismiss pursuant to Chancery Court Rule 41(b). The complex dispute revolves around the affairs of the...

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