Griffith v. State

2 Del. Ch. 421 | Del. | 1848

i Wootten, J.,

delivered the unanimous opinion of the Court, as

follows :

■ Benjamin Potter, the testator, by his last will and testament, bearing date the 26th day of June, 1839, and by sundry codicils thereto, after disposing of and giving certain portions of his estate to his relatives and friends, devised all the balance or residue of his estate, real, personal, and mixed, of every description, to Potter Griffith, George S. Atkins and Levin H. Adams, in trust for the support and maintenance of the poor white citizens of Kent county; “ who by timely assistance might be kept from the Poor House and from becoming inmates thereof,” excluding from the benefit of any part of his bounty,all such persons as might be within the walls of the Poor House; and further directing his real estate, passing under this devise,to be rented by his executors,and the net proceeds applied to and for the purposes above mentioned, “ by agents to be appointed by the Orphans’ Court or Levy Court of Kent county, as might be deemed most proper.”

The questions presented by the case stated are whether the devise so made, in and by the 18th item of the said last will and testament and the several codicils thereto, unto and for the charitable uses, objects and purposes in manner and form set forth in the case stated, are valid and capable of being sustained and carried out in a court of chancery, according to the rules and principles of a court of equity; or whether the same are void or illegal, and not capable of being sustained and carried out in' a court of chancery, according to the rules and principles of equity.

The important principles of law which are applicable to the subject matter of this suit, have been the subject of much labor and research, and have elicited a vast amount of legal learning; and much has been displayed in the argument of this cause. Therefore, although we by no means look upon this case as one free from difficulty and obscurity, yet in its adjudication we are not left entirely in the dark, without a light or beacon to guide us; but our pathway is lighted up by the opinions and decisions of some of the ablest jurists that ever adorned the Bench, as well of this country as of that from which we derived our code of laws.

Assuming the fact, which is conceded in the argument, that the testator designed by this devise to create a trust for charitable uses and purposes, and that he employed proper and suitable language to convey the legal estate to the trustees, we proceed to the consideration of the respective questions presented by the case stated and the arguments in the cause.

It can scarcely be necessary to do more than merely glance at the objections made to the validity of this devise on the ground that there are no trustees to execute the trust. The trustees designated arid appointed by the testator may, it is true, decline and refuse to execute the trust; but we are at a loss to conceive on what principle such refusal can divert the fund from the legitimate .objects of the trust, and thus defeat both the will of the testator and the charity. It is a principle too well settled to. require the aid of reasoning-or argument at the present day, that a valid trust shall never tail for want of a proper trustee. 2 Sugd. on Powers 174; 1 Chancery Cases 180 ; Coke on Litt. 190 b. 4. Sec. 4. It is a general principle of equity that wherever may be the legal estate,if the trust is valid, it will be protected and enforced in a court of equity. It -is also a general rule, that a legacy given in trust does not lapse by the death" of the trustee in the testator’s life time, but survives for the betiefit of the cestui que trust. The substance of the charity remains notwithstanding the death cf the trustee in the testator’s lifetiriie, though at law the legacy lapses. Shelford on Mortmain, (36 Law Library) 367. It is sufficient that the trust appears; and if the party creating it docs not appoint a trustee to' execute it a court of equity will follow the legal estate and decree the person in wboiri it is vested, a trustee to execute the trust. Ambler’s R. 571; 1 Bro. Oh. Rep. 81» Lord Coke says, it is a rule of equity, which admits ’of no "exception, that a valid trust shall not fail for want of a trustee to execute it; but a court of equity will execute the office. Ooke Litt. 113 a,note. Trusts are often created by will without the designation of any trustee to execute them; or it may be matter of doubt upon the terms of the will, who is the proper party. But a court of equity will not hesitate, where doubts exist as to the party, to declare who is the proper person to execute the trust; and, where no trustee is designated, it will proceed to execute the trust by its own authority, 2 Story’s Eq. Jur. sec. 1059; 1 Ves. Sr. R. 475.

It is said, however, that the objection to the validity of this devise is rather on account of the uncertainty of the cestuis que trust than for the want of trustees; and it is insisted that the description of the beneficiaries is so vague and uncertain that,even if there were a power of seleption appointed, the devise must fail as a trust.

The class of persons intended to be the recipients of the testator's bounty are described by him as the “ poor of Kent County, who by timely assistance may be kept from being carried tó the Poor House and becoming inmates thereof; ” And the tesjator directs the distrjbution of the fund “ to be made by agents to be appointed by the Orphans’ Court or Levy Court of Kent County, as may be deemed most proper.”

Is this description of the beneficiaries so vague and indefinite that they cannot be selected and ascertained by the agents who were to be appointed by the Orphans’ Court or Levy Court ? Are they not as susceptible of ascertainment as “the poor inhabitants of Saint Leonard Shoreditch,” in the case of Atty. Gen’l vs. Clarke,Ambler's Reports,422 ? This was a bequest of the interest of £4200, of bank annuities, to “ the poor inhabitants of Saint Leonard Shoreditch and it was insisted by the defendants that the bequest jvas void for uncertainty in the description of the persons to take ; but the bequest was sustained and the fund distributed among the poor inhabitants not receiving alms. The description in this case was much more general than in the one now under consideration, but the distribution of the fund was confined to the poor of Saint Leonard Shoreditch not receiving alms ; for, without such restriction, it was said the rich as Well as the poor would be benefited, which could not have been the intention of the testator.

In this case Col. Potter restricts the distribution of the fund to the poor of Kent County who by timely assistance may be prevented from becoming inmates of the Poor House; and he expressly prohibits the bestowal of any part of his bounty upon any persons not within this description, or who are inmates of the Poor House.

A bequest was made for the benefit of the poor dissenting ministers of the gospel residing and living in any of the counties of England, to be paid to the treasurer of such charitable society or fund for the time being, for that purpose, as the major part of them should direct or appoint. It appeared that there were three distinct societies of dissenters, and that collections were made for the poor ministers of each. It was held that the bequest was not void for uncertainty ; but that the fund should be distributed to and among the poor ministers of each society. Walter vs. Childs, Ambler’s R. 524.

The beneficiaries are said to be further uncertain, because no effectual provision is made by the testator for their selection ; and in support of this objection it is argued that under the provision made by the testator the power of selection is vested nowhere; that it does not exist solely in either of the courts named, nor in both collectively; and, therefore, it is contended, that neither can make the appointment of the agents who were designed to be die instruments of distribution; and consequently no cestuis que trust can be brought into being and invested with rights to be asserted in a court of equity. If this argument is tenable, and it is true that a power vested in any one of two or more persons is not sufficient authority for the action of either, by what authority did the late Court of Common Pleas and Supreme Court of this State exercise concurrent j urisdiction ? As well might it be said that the authority to take the acknowledgment of deeds no where exists, because such authority is not conferred upon one particular officer or class of officers, but' is' delegated to several. But if both the Orphans’ Court and Levy Court should neglect or refuse to appoint such agents as the testator designated and provided for by his will, would such neglect or refusal defeat the general intention of the testator and deprive the objects of his bounty of the benefit of the charity ? Or, would it not come within the province of the Court of Chancery to supply the defect thus occasioned in the mode prescribed by the testator for the execution of the trust, by creating an agency to effect the distribution of the fund in accordance with the will of the testator ? The agents are the mere instruments of distribution—the hand, as it were, to parcel oiit the fund and carry into effect the general intention of the testator, which, being charity, will not be allowed to fail from the neglect or refusal of the trustees to execute the trust or from the neglect or refusal of the Orphans’ Court or Levy Court to appoint the agents to distribute the fund. Atty. Gen. vs. Boultbee, 2 Ves. Jr. 380 ; Atty. Gen. vs. Syderfen, 1 Vernon 224; S. C. 7 Ves. Jr. 43; Mills vs. Farmer, 1 Mer. 55. In these cases the object of the charity and the persons to designate it were both wanting; yet the defects were supplied and the general intention of the testator, which was charity, carried into effect.

•In the case now under consideration the devise is not so general; but the testator designated and described the objects of his bounty and marked out the plan by which it was to be distributed. The principle which governed the cases just referred to, therefore, applies a fortiori to this case; the appointment of the agents, merely, to effect the distribution of the fund in the mode and to the persons designated and described by the testator, being the defect sought to be supplied by the aid of the Court of Chancery.

The argument against validity of this devise for want of certainty in the beneficiaries seems to be based on the assumption of the fact that personal gifts and bequests to charity are of the same character and governed by the same principles of law; whereas I apprehend there is a manifest distinction and that the principles which govern the one class of cases are wholly inapplicable to the other. Bequests to charity seem to be an exception to the general rule laid down in reference to personal or individual gifts ; and the very authority cited at the bar and mainly relied on in support of this objection to the devise fully sustains this position and illustrates the principle which marks the distinction between the two classes of bequests. In ..Powell on Devises (21 Law Library,) 215. n 7 (which is the authority just alluded to) it is said by Sir Wm. Grant, in reference to gifts void for uncertainty, that an exception should be stated, applicable to bequests to charity, with respect to which “ it is now settled upon authority, which it is too late to controvert, that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the object, but the particular mode of the application will be directed by the King in some cases, in others by the Court of Chancery.” Morice vs. Bp. of Dunham, 9 Ves. 405. Here a number of authorities are cited illustrative of this principle, some of which are very similar to the case now under consideration ; as the case of a gift to the poor in general, Atty. Gen. vs. Matthews, 2 Lev. 167 ; Atty. Gen. vs. Clarke, Amb. 422; Bishop of Hereford vs. Lady Twysden, 7 Ves. 324; Paice vs. Archbishop of Canterbury, 14 Ves. Jr. 364; or, a gift to charitable uses generally, Clifford vs. Francis, Freem, Ch. Cases, 330 ; Atty. Gen. vs. Herrick, Ambler 712 ; or, a gift to such charitable uses as the testator’s executor shall appoint and the testator revokes the appointment of the executor,, White vs. White 1 Bro. Ch. R. 12 ; or, a gift to such charitable uses as A shall appoint and A dies in the life time of the testator, Moggridge vs. Thackwell, 1 Ves. Jr. 464 ; 3 Bro. Ch. R. 517; 7 Ves. Jr. 36; 13 Ves. Jr. 416; or, he neglects or refuses to appoint, Atty. Gen vs. Boultbee, 2 Ves. Jr. 380 ; or, a gift to such charitable uses as the testator himself has appointed and no such appointment can be found, Atty Gen. vs. Syderfen, 1 Vernon 224 ; same case 7 Ves. Jr. 43 n; or, to such charitable uses as he shall appoint and he dies without making an 'appointment, Freem. Ch. Cases 261; Mills vs. Farmer 1 Mer. 55 ; or, a gift to the trustees of a charity who refuse to accept, Atty. Gen. vs. Andrews 3 Ves. Jr. 633. In these, and all such cases, though the bequest would, upon the principles which govern the construction of testamentary dispositions in favor of general objects, be void for uncertainty; yet, the object being charity, the crown, as parens patriae, or the court, will execute it. Charities are so highly favored in the law that they have always received a more liberal construction than the law will allow in gifts to individuals. 2 Story’s Eq. Jr. Sec. 1163. . If an estate is devised to such persons as the executor shall name and no executor is appointed ; or, if one being appointed, he dies in the lifetime of the testator and no other is appointed in his place, the bequest becomes a mere nullity ; yet, such a bequest, if expressed to be for a charity, would be good ; and the Court of Chancery would, in such case, assume the office of executor and effectuate the bequest. 2 Story’s Eq. Jur. Sec. 1166; Mills vs. Farmer, 1 Mer. R. 55, 94; Moggridge vs. Thackwell, 7 Ves. Jr. 37 ; Atty. Gen. vs. Jackson, 11 Ves. Jr. 365, 367. So, if a legacy is given to trustees to distribute and they all die in the testator’s life time, yet the defect will be supplied in equity. 2 Story’s Eq. Jur. Sec. 1166; Atty. Gen vs. Hickman, 2 Eq. Cas Ab. 193; Duke on Char. Us. 476; Moggridge vs. Thackwell,3 Bro. Ch. Rep. 517; S. C. 1 Ves. Jr. 464.

Another objection taken to the validity of the devise is that it creates a perpetuity, and thus renders the lands devised forever inalienable, being devised to the trustees to be by them rented and the net proceeds to be applied for the uses and purposes of the trust. As a general principle, it is true that the law prohibits such dispositions of real estate, and in general it cannot be thus tied up ; but it nevertheless in this, as in many other respects, makes charity an exception to this rule against perpetuities. Lewis on Perpetuity, 687 ; (52 Law Lib. 437.) It follows, from the nature of the purposes and objects to which the property is devoted and the character of the ownership to which it is subjected, that for all practicable purposes it will be in dead or unserviceable hands. This, it is obvious, is the characteristic of alienations to charitable uses : it is in the very nature of such dispositions to withdraw the subject of them from any kind of circulation, as a contrary course would defeat the manifest object, which is the sustentation of the charitable institutions, or the carrying out in continuity of the benevolent purposes for which they are made.

Until the Statu'e 9 Geo, II. eh." 36, little restraint was imposed upon alienations of this sort, but the apprehensions, entertained in the reign of Geo. IT., that persons on their death beds might make large and improvident dispositions of their property for such purposes gave rise to this Statute, which was designed to counteract or check such dispositions ; and under the supposition that men were in but little danger of being pornieiously generous at the sacrifice of their own comfort or enjoyment, when uninfluenced by the near approach of death, it was considered that this end would be sufficiently attained by preventing persons from aliening more of their lands than they chose to part with in their lifetime. Lewis on Perpetuity, 689.(52 Law Lib. 438); 3 Peters S. C. R. 99. In reference to the Statute 9 Geo. II., Sir William Grant said; “ In its causes, its objects, its provisions, its qualifications, and its exceptions, it was a law wholly English, calculated for purposes of local policy, complicated with establishments, and incapable, without great incongruity in the effect of being transferred, as it stands, into the code of any other country.”

But it is said that our statutory law prohibits the disposition of lands in perpetuity, and that the devise in this case is void on that ground. There are but two statutes in this State which at all approximate to the subject. The one is that of 17 Geo.II, passed in 1744, entitled “An Act for the enabling religious societies of Protestants within this government to purchase lands for burying ground, churches, houses for worship, schools, &c.” This Act authorizes religious societies of Protestants to purchase, take and receive, by gift, grant or otherwise, land for burying-grounds, erecting churches, houses of religious worship, schools, and alms-houses, for any estate whatsoever,and to hold the same for such uses andpurposes ;provided, (by the fourth section) that nothing in the act contained should be deemed, taken or construed to enable any of the said religious societies of people, or any person or persons whatsoever in trust for them or to their use, to purchase, take dr receive any lands or tenements by gift, grant or otherwise, for or towards the maintenance or support of the said churches, houses of worship, schools, or alms-houses, or the people belonging to the same, or for any other use or purpose save for the uses in the Act before mentioned. It is n,ot contended that the devise in question is rendered invalid by this Act, or in any wise afltected by it; but it is insisted that any devise of land, or of money to be laid out in land, is void except in the mode allowed by the third section of the Act of 1787 (Digest Del. Laws. 460,461.) This is an act designed exclusively for the protection and government of the temporal concerns of all religious societies or' denominations, the first section of which provides that each and every religious society or congregation of Christians, of whatever sect or denomination, may elect or choose any number of their society, not exceeding seven nor less than three,to be trustees of the same; which said trustees and their successors in office are constituted a body politic and corporate, by whatever name they may take and assume ; arid the second section provides that the said trustees, in their corporate name and capacity, shall forever thereafter be authorized in law to purchase, take, hold, receive, arid enjoy any messuages, lands, tenements, rents and other hereditaments and real estate, in fee-simple or otherwise, and also goods and chattels, sum or sums of money, and personal estate whatsoever, to and for the us) of their respective societies or congregations ; provided (by the third section) that all gifts, grants, bargains, sales arid conveyances of and for the same shall be made by deed, twelve calendar months, at least, next before the death of the donor, grantor or bargainor; otherwise to be void. The trustees of these religious societies are by this Act made and constituted corporate bodies, and like all other corporations are the mere creatures of the law, created and existing by it and only in the manner and for the purposes therein and thereby limited and prescribed ; and, therefore, they cannot exercise any power whatever not expressly given them, much less that which the law creating them expressly declares they shall not have or exercise. It follows, therefore, that any gift, grant, or conveyance of lands, or money to be laid out in lands, or any other gift, grant or conveyance to the trustees of any such society, not conformable to the provisions of the Act from which they derive their existence as a corporate body, would be absolutely void; and this was the ground upon which the decision of the court was based in the case of the State vs. Bates, Adm’r of John Wiltbank dec’d. 2Harring. R. 18. This was the case of a devise by Wiltbank of the proceeds of the sale of real estate to the trustees of the Methodist Episcopal Church at Dover, in their corporate capacity, to be applied by them in such manner as they should devise, towards educating poor children of the metiibers of paid church. The Court in that case very properly held that the devise was void, not on the ground, however, that a devise for charitable purposes could not be made and enforced, but because it was a devise to the trustees of a religious society, falling precisely within the prohibition of the very law which gives them existence as a corporate body, not being conformable either to the provisions of the Act of 1787 or of 17 Geo. II, in 1744, but in direct derogation of both.

The case now under consideration is of a different character ; and altogether unlike that of a devise to trustees of a religious society. It cannot be classed among the mischiefs intended to be guarded against by our Statute; nor does it fall within their prohibtion.

In the view which we have taken of this case it is one of a valid trust for charitable uses and purposes, with trustee appointed by the testator to execute it, with the aid of agents, to be appointed, to select the objects of the testator’s bounty in a mode sufficiently indicated by the testator, and which is not prohibited or rendered invalid by any statute of this State.

The remaining and perhaps the most important question, next to be considered, is,“ whether the devise is capable of being sustained and carried out in a court of chancery, according to the rules and principles of equity.”

This objection leads to the inquiry whether the Court of Chanceryf prior to and independent of the Statute 43 Elizabeth, had jurisdiction to enforce charitable uses, or whether its jurisdiction was derived solely from that Statute. We find no evidence on the face of the S tatute itself that such j urisdiction was conferred by it. It contains no provision from which such a conclusion can be drawn, either directly or inferentially, except in case of appeal from the commissioners. The Statute itself, then, affording no evidence as to the source from whence this jurisdiction was derived we are obliged to seek other information; and we know of none so likely to lead us to proper and correct conclusions as adjudged cases by learned and able jurists, whose opinions have been formed upon a thorough investigation of the subject and are the result of much labor and research. In the case of Eyre vs. the Countess of Shaftsbury, 2 P. Wms. 119, Sir Joseph Jekyll said “ in the case of charity the King,pro bona publico, has an original right to superintend the care thereof, so that, abstracted from the Statute of Elizabeth relating to charitable uses, and antecedent to it. as well as since, it has been every day's practice to file informations in chancery, in the Attorney General’s name for the establishment of charities. 2 Equity Cas. Ab. 710. And Lord Northington in the case of Atty. Gen. vs. Tancred, 1 Eden R. 10; same case in Amb. R. 351; 1 Wm. Blk. R. 90; and Lord Chief Justice Wilmot in the case of Atty. Gen. vs. Lady Downing, both held the same doctrine. Lord Redesdale, who was confessedly a very learned and able chancery lawyer, in the case of the Atty. Gen. vs. the Mayor of Dublin, 1 Bligh’s R. 347, says, in reference to the Statute 43 Elizabeth, “ the Statute only created a new jurisdiction, a jurisdiction created by commission, but the proceedings of the commissioners were made subject to appeal to the Lord Chancellor, and he might reverse or affirm what they had done, or make such order as he might think fit for preserving the controlling jurisdiction of the Court of Chancery as it existed beforejffie passing of that Statute; and there was no doubt,” he said, “ but the same thing could he done by information by the Attorney General in the exercise of his right of prerogative ; that the King,as parens patries,has the right, through his proper officers, to call upon the several courts of justice, according to their respective jurisdictions, to see that right is done to his subjects who are incapable to act for themselves as in the case of charities and other cases.” It appears, therefore, that Lord Redesdale repudiates the doctrine that the jurisdiction of the Court of Chancery over charitable uses was derived from the Statute 43 Elizabethand he maintains it in the fullest and broadest terms as being the inherent jurisdiction of chancery independently of and antecedent to the Statute of Elizabeth. In the case of Atty. Gen. vs. Middleton, 2 Ves. Sr. 327 (so far back as 1751), Lord Chancellor Hardwicke said that information in the name of the Attorney General as an officer of the crown was not a head of the Statute of charitable uses, because original jurisdiction was exercised in that court before; but that was always in cases now provided for by that Statute, that is, charities at large. So in the case of Atty. Gen. vs. Matthews, 2 Levinz 167, it was held that general charities were not within the power of the commissioners under the Statute 43 Elizabeth. “This being a general charity, and for the poor in general,” says Lord Keeper Finch, “ the commissioners have nothing to do with it, but it is to be determined by the Court of Chancery on information by the Attorney General in behalf of the King ” And, in the case of The Incorporated Company vs. Richards,1 Drury & Warren’s R. 258, Lord Chancellor Sugden, in a very able and elaborate opinion upon the very point now under consideration, declared that in equity there is inherent jurisdiction over cases of charity; and that it is one of the objects for which a court of equity has at all times interfered to make good that which at common law was void. In the case of Sarah Zands will, in the Circuit Court of the U. S., at the April Term 1833, Judge Baldwin, after a very laborious research into the English statutes and authorities, arrived at the same conclusion; and, in a very able and lucid opinion, maintained the doctrine of inherent jurisdiction independently of and antecedent to the Statute 43 Elizabethan which opinion Judge Hopkinson entirely concurred, Here is a current of authorities, sustained by the opinions and dicta of very eminent Judges, establishing the doctrine that, independently of and prior to the Statute 43 Elizabeth, the Court of Chancery could enforce charitable uses under its general jurisdiction, and that such jurisdiction had been exercised both subsequent and antecedent to that Statute. The defendants, however, maintain the contrary doctrine ;'and,in support of their position, they rely mainly upon the case of The Baptist Association, vs. Hart’s Executors, 4 Wheaton 1, and the authorities there cited in support of the objection to the validity of the devise in that case. It is, doubtless, true that the opinion of the court in the case of The Baptist Association vs. Hart’s Ex’rs, was delivered by a judge who stands deservedly pre-eminent in his profession, equalled by few and perhaps surpassed by none of his day in this country, and whose opinions are entitled to great respect. But, since that opinion was announced by Chief Justice Marshall, the same Court, so recently as the January Term 1844, decided the case of Vidal et. al vs. the Mayor, Aldermen and Citizens of the city of Philadelphia, in which they overrule and abandon the principles upon which the decision in The Baptist Association case was based; and they take the ground that antecedent to and independently of the Statute 43 Elizabeth the Court of Chancery had jurisdiction over charitable uses. Mr. Justice Story, in delivering the opinion of the Court in the case just referred to, after reviewing all the authorities, including the case of The Baptist Association vs. Hart’s Ex’rs,which he said was strongly relied on as fully in point, says, “ but very strong additional light has been thrown upon this subject by the recent publications of the com-missioners on the public records in England which contain a very-carious and interesting collection of the chancery records in the reign of Queen Elizabeth, and in the earlier reigns. Among these are found many cases in which the Court of Chancery entertained jurisdiction over charities long before the Statute 43 Elizabeth ; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish, in the most satisfactory and conclusive manner, that cases of charities, where there were trustees appointed for general and indefinite charities* as well as for specific charities, were familiarly known to and acted upon, and enforced in the Court of Chancery. In some of these cases the charities were not only of an uncertain and indefinite nature, but, as far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed or the trustees were not competent to take. These records, therefore, do, in a remarkable manner, confirm the opinion of Sir Joseph J ekyll, Lord Northington, Lord Chief Justice Wilmot, Lord Redesdale.and Lord Chancellor Sugden. Whatever doubt, therefore, might properly be entertained upon the subject when the case of The Baptist Association vs. Hart’s Ex’rs, was before this Court in 1819, these doubts were entirely removed by the later and more satisfactory sources of information to which we have alluded.”

The Baptist Association case, and those of Virginia and Maryland which were evidently decided on its authority, and of course must fall with it, being thus stricken, as it were, from the catalogue of judicial decisions, the question rests on the authority of adjudged' cases in several of the different States, affirmed by the United States Court in the case of Vidal vs. the Mayor, Aldermen, and Citizens of Philadelphia, just referred to, all going to establish most conclusively an inherent jurisdiction in the Court of Chancery anterior to, and independent of, the Statute of 43 Elizabeth.

If the Court of Chancery in England is clothed with this jurisdiction, the same jurisdiction belongs to the Court of Chancery of the State of Delaware. Equity jurisdiction in this State was originally vested in the Court of Common Pleas,and the Justices of that Court were clothed with the powers of the High Court of Chancery of Great Britain and required to observe the rules and practice of that Court in the exercise of the jurisdiction thus conferred upon them. 1 Del. Laws, 130, 131. And, by the Constitution of 1792 of the State of Delaware, the equity jurisdiction theretofore exercised by the Court of Common Pleas, was separated from the common law jurisdiction and vested in a Chancellor, who should hold a Court of Chancery in the several counties of the State. Art. VI, Sec. 14 of Constitution of 1792.

Under the view which we have taken of the respective branches of this case, it is the opinion of the Court that the decree of the Chancellor ought to be, and it accordingly is, hereby, affirmed.