38 Del. 595 | Del. Super. Ct. | 1937
delivering the opinion of the Court:
1. Is the statute (Section 3867, Revised Code 1935) unconstitutional in that it purports to confer upon the Register of Wills a judicial power not authorized by the Constitution? The answer to the question is difficult and a satisfactory conclusion may only be reached at the expense of desirable brevity.
The only applicable provisions of the present Constitution (1897) are Article 4, §§ 33 and 34, as follows:
“Section 33. The Registers of Wills of the several counties shall respectively hold the Register’s Court in each county. Upon the litigation of a cause the depositions of the witnesses examined shall be taken at large in writing and made part of the proceedings in the cause. This court may issue process throughout the State. Appeals may be taken from a Register’s Court to the Superior Court, whose decision shall be final. In cases where a Register of Wills is interested in questions concerning the probate of wills, the granting of letters of administration or executors’ or administrators’ accounts, the cognizance thereof shall belong to the Orphans’ Court, with an appeal to the Superior Court, whose decision shall be final.
“Section 34. An executor or administrator shall file every account with the Register of Wills for the county, who shall, as soon as conveniently may be, carefully examine the particulars with the proofs thereof, in the presence of such executor or administrator, and shall adjust and settle the same according to the right of the*601 matter and the law of the land; which account so settled shall remain in his office for inspection; and the executor, or administrator, shall within three months after such settlement give notice in writing to all persons entitled to shares of the estate, or to their guardians, respectively, if residing within the State, that the account is lodged in the said office for inspection.
“Exceptions may be made by persons concerned to both sides of every such account, either denying the justice of the allowances made to the accountant or alleging further charges against him; and the exception shall be heard in the Orphans’ Court for the county; and thereupon the account shall be adjusted and settled according to the right of the matter and law of the land.”
In no other section except the Schedule is there pertinent reference to the Register of Wills or of the Register’s Court.
Detailed consideration of the foregoing sections will not be indulged in because the Constitution by Section 10 of the Schedule says “Unless otherwise provided, the Registers’ Courts and the jurisdiction of the Justices of the Peace shall not be affected by this amended Constitution.” This does not mean that a consideration of the Register’s Court is to be made entirely exclusive of the Constitution of 1897, for such a construction would entirely nullify Section 33, as above quoted. It does mean that “unless otherwise provided” the Register’s Court would remain as it theretofore had been. Sections 33 and 34 of Article 4 of the Constitution of 1897 are substantially the same, respectively, as Sections 22 and 21 of Article 6 of the Constitution of 1831. To that Constitution we then look. In addition to the sections just cited (Art. 6, §§ 21 and 22) we find Section 6 of the Schedule, as follows:
“Sec. 6. The registers’ courts and justices of the peace shall not he affected by any amendments of the constitution made in this convention; but the said courts and the terms of office of registers and justices of the peace shall remain the same as if said amendments had not been made.”
While the language of this section differs from the section in the Schedule of the Constitution of 1897, the effect, we think, is the same. The Constitution of 1897 was
While the office of a constitutional schedule is to provide for a transition from an old to a new or amended Constitution and obviate inconveniences which might arise from the change of government, yet the schedule having been adopted as a part of the Constitution, its provisions are equally binding with it.
Willis v. Kalmbach, 109 Va. 475, 64 S. E. 342, 21 L. R. A. (N. S.) 1009.
Because the Constitution of 1792 (Art. 6, § 17) first created the Register’s Court and provided for the passing of executors’ and administrators’ accounts before the Register of Wills, it would seem logical to inquire as to the situation just prior to the adoption of that Constitution, and of the changes made by it.
Under all of the acts hereinbefore mentioned the duties of the register were confined to the granting of letters of administration and taking the bond of the administrator, and to the probate of wills and the issuance of letters testamentary and to the filing of inventories. He had nothing whatever to do with any account of the personal representative, which accounts were passed before the Orphans’ Court, which court had power to order a decree of distribution. Appeals from the action of the Orphans’ Court were originally made to the Governor, in equity, but by the Act of 1773 (Volume 1, page 539) such appeals were made to the Supreme Court. The foregoing state of the law continued until the adoption of the Constitution of 1792.
In. 1766 it was realized that no court had been em
This then brings us to the Constitution of 1792 and furnishes the first hint of the meaning of the Register’s Court. The Constitution of 1792, by Article 6,0§ 16, changed the place of filing and settling executors’ and administrators’ accounts from the Orphans’ Court, and required that these accounts be filed with and settled and adjusted by the Register of Wills. The Constitution changed the provision that' accounts must be filed three months before settlement and in its place required that the personal representative should notify the parties entitled to any share of the estate of the filing of the account within three months from the date of settlement.
The Constitution of 1792, by Section 17 of Art. 6, created the Register’s Court in substantially the identical language found in our present Constitution, and which language has been continued in every revision since 1792. The term “Register’s Court” was probably copied from the State of Pennsylvania, where it had appeared as a new term in their Constitution of 1790 (Art. 5, § 1). The Court was created by Section 17 and there is no additional provision regarding the jurisdiction of the court.
Notwithstanding the lack of jurisdiction regarding the Register’s Court expressly set out in any Constitution the existence of such court and its jurisdiction has been often recognized.
The Register’s Court was a new creation in 1792. Unless we can read into the Constitution the thought that such court was invested with the powers theretofore exercised by the Register of Wills, or unless additional powers could be granted by the Legislature, then no power or authority at any time ever existed in the Register’s Court, notwithstanding the provision for the court in every Constitution. If we look alone to the Constitution of 1776 and 1792 for the jurisdiction of any law court we find no jurisdiction whatever, and we would be forced to conclude that from 1776 to 1831 no law court in Delaware was vested with any jurisdiction whatever. And this for the first 56 years of our state’s existence. The statement of such a proposition is its own refutation.
We are of the opinion that it was the plan and scope of every constitutional revision that the Register’s Court could be given jurisdiction by the Legislature and that this jurisdiction may now be given in any appropriate and germane particular. As said in Harris v. Vanderveer’s Ex’r, 21 N. J. Eq. 424, 429:
“In the judicial system of a state, few things can be imagined more obstructive of the progress of society than courts with jurisdictions absolutely fixed.”
Whether such additional jurisdiction can be given in derogation of a constitutional jurisdiction of another court is a different question and whether the Statute in the present instance is a proper exercise of the legislative power must now be considered.
The answer to this question brings us directly to a consideration of Robinson v. Robinson’s Adm’r, 3 Harr. 433, decided in 1842. That case, as we read it, distinctly held that the Register of Wills occupies a dual position; that under Article 6, § 17 of Constitution of 1792 [Article 6, § 22 of Const. of 1831 and Article 4, § 33 of Const, of 1897] the Register of Wills for certain purposes is a judge and constitutes the Register’s Court; that in adjusting and settling executors’ or administrators’ accounts under Article 6, § 16 of Constitution of 1792 [Article 6, § 21 of Constitution of 1831, and Article 4, § 34 of Constitution of 1897] the Register of Wills is not a judge but an accounting officer from whose allowances exceptions may be taken to the Orphans’ Court. With the opinion of the Robinson Case we are strictly bound. It was the opinion of the Court of Errors and Appeals, the highest Court of the state, and concurred in by the Chancellor and every law judge of the state having been heard on question reserved by the County Court.
Apply then the opinion to the present case. The administration account has been filed by the administrator and adjusted and settled by the register. This settlement by the Robinson Case was the act of an accounting officer and not a judicial function. Can the Legislature using the ministerial act of settling the account as a basis, superimpose upon it the judicial function in the Register’s Court of the distribution of the estate as shown by the account?
We cannot say that, under certain circumstances, this cannot be done. We can but point out some of the inherent and serious difficulties which, in some cases, may present themselves.
It is a curious coincidence that on the very day of approval of the act authorizing the decree of distribution (Chapter 184, Vol. 38, approved April 6, 1933), there was enacted an amendment of the law concerning exceptions to the account. By Chapter 188, Vol. 38 (also approved April 6, 1933) it was enacted that if the personal representative had, within three months, given notice of the settlement of the account (being the constitutional requirement), that exceptions were required to be filed within three months after the giving of such notice. This, then, in certain circumstances provides for exceptions within six months from the filing of the account. If the decree of distribution, if not appealed from becomes, by the term of the statute final and conclusive at the end of two months,
The account filed by the personal representative is his own account. There is included therein only such debit items as the representative chooses to include. The register may require vouchers as evidence of credits claimed by the representative, but cannot be expected to know of items with' which the representative should be chargeable. The right of exception after notice of filing the account is, therefore, of importance, and it was for this express purpose that the Constitution of 1831 changed the then existing provisions by allowing exceptions “to both sides of the account,” whereby the representative could be charged in the Orphans’ Court with omitted items of debit as well as denied certain items of credit claimed by him, and allowed by the register.
It will be noted that the court in the consideration of the second point has not determined the question of the validity of the present decree of distribution on the ground that the statute purporting to authorize the decree was or was not a lawful and valid exercise of the power existing in the Legislature. In view of our conclusion on the third . point this may be unnecessary. On the second point we have contented ourselves with an expression .of some thoughts which, when accompanied by appropriate facts, might render impossible the sustaining of the act.
But the statute authorizing decrees of distribution is
3. Is the statute unconstitutional because it fails to provide any notice to interested parties, or opportunity to be heard prior to the entry of the decree of distribution?
It is readily conceded by the appellee that under the “due process” clause of the Federal Constitution (Amend. 14) some notice must be given to interested parties and that actual notice is not sufficient to satisfy the constitutional requirement unless such notice is required by law. The statement of that principle needs no citation of authorities to support it. The Chancellor of this state in Cantor v. Sachs, 18 Del. Ch. 359, 373, 162 A. 73, 79, said:
“Since Wuchter v. Pizzutti, 276 U. S. 13, 24, 48 S. Ct. 259, 72 L. Ed. 446, 57 A. L. R. 1230, no argument is needed to show that whenever notice of proceedings .under a statute is required by due process of law to be given to a defendant, the statute itself must direct it. It will not satisfy the requirements if notice be actually given, if it be gratuitous. Notice cannot depend upon the favor of the court.”
As was said in Spoturno v Woods, 8 W. W. Harr. (38 Del.) 378, 192 A. 689, 694,
“Due process of law, as applied to_ proceedings under a statute resulting in judgment, means notice directed by the statute itself, and not a voluntary or gratuitous notice resting in favor or discretion.”
The appellee, however, insists that parties interested were furnished with three several notices, any one of which was sufficient to meet the constitutional requirement. The suggested notices will be considered seriatim in the order presented. '
(a) Notice of grant of original letters of administration which it is claimed inheres and applies to the estate until its final disposition.
(b) Notice provided by Rule adopted by the Register of Wills.
(a) The appellee insists that the notice of the grant of original letters of administration obtainable under Section 3861, Revised Code of 1935, is sufficient for all purposes of the settlement of a decedent’s estate. In support of this many cases are cited. We shall not pause to discuss these cases, but the language of some is inappropriate in view of our decision of Robinson v. Robinson’s Adm’r, 3 Harr. 433. It is sufficient for us to quote the statute relied on. This statute provides: “The Register may and on application shall” make an order directing the giving of notice of the granting of letters of administration. There is no requirement of notice here. It may or may not be made dependent upon the will of the representative or of the register. Because the notice is not required to be given in every case but is given only at the option of the personal representative or the Register of Wills, we classify it as a gratuitous or voluntary notice to be given at will. As such it is clearly insufficient in the present matter within the cases of Cantor v. Sachs and Spoturno v. Woods, supra..
(b) Is the rule adopted by the Register of Wills sufficient to meet the constitutional requirements ?
We readily concede the rule making power of courts both under statutes and as an inherent attribute of the court itself. Usually this power applies to matters of procedure and of practice. No case has been cited where jurisdiction has been acquired by rule of court. If the jurisdiction of the register did not exist without the rule and did exist after the passage of the rule, then it would seem that jurisdiction, in large part, came from the rule itself. If the rule be rescinded the jurisdiction would then cease, perhaps, to be resurrected upon the adoption of a new rule.
Attention might be directed to those cases in which the Register of Wills has an interest. In such cases the statute prescribes that the decree of distribution be made by the Orphans’ Court. It could hardly be suggested that in such cases a rule of the Register of Wills would provide the necessary notice.
In line with Cantor v. Sachs, supra, we hold that the rule adopted by the register does not provide the notice required by the Constitution and lacking in the statute itself. As said in Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289,
“The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority be done.”
(c) Is the notice required to be given by the distribution statute after the making of the decree and before it becomes final, a sufficient notice under the law?
This court has had the advantage of elaborate arguments on the question as to whether on an appeal from a decree of distribution the hearing is upon the record as
“Upon the litigation of a cause the depositions of the witnesses examined shall be taken at large in writing and made a part of the proceedings in the cause.”
By “depositions of the witnesses” we assume is meant their testimony. If the hearing on appeal is de nova we can see no purpose in the preservation of the testimony. The language to us indicates the intention to formulate a record upon which the case should finally be determined by the Superior Court on appeal. In Barker v. Spicer, 4 Harr. 348, the court in speaking of appellate proceedings in the Superior Court from a judgment of the Register’s Court says:
“The cause is tried on appeal on the same evidence as was heard in the court below.”
In Cummins v. Cummins, 1 Marv. 423, 31 A. 816, Chief Justice Lore was of the opinion that appeals were heard upon the record of the Register’s Court, and Judge Grubb
Great care must be exercised in determining the meaning of the term “de nova” in cases involving appellate proceedings. The usual signification includes a complete retrial in which new evidence may be introduced and an entire opening of the case. In this sense the term has been used in this opinion. Our own Supreme Court, however, in Godwin v. State, 1 Boyce (24 Del.) 173, 74 A. 1101, Ann. Cas. 1913 E, 940, uses the term, in a different sense. There the Supreme Court was restricted by the Constitution in the hearing on appeal to a consideration of the evidence adduced in the court below, yet the Supreme Court said:
“By this appeal the cause was heard de nova on the testimony and proofs taken.”
It is a well settled rule that in appellate proceedings the cases are not tried de nova in the sense such term is here considered, unless the law directs or permits such a course. 4 C. J. 726; 3 Am. Jur. 377.
The Constiution not only does not direct a trial de nova in the present case but the plain intendment, we think, is to the contrary. In almost every other appellate pro
We conclude, therefore, that in an appeal from a decree of distribution (if such decrees could be legally entered and appeal made therefrom) the Superior Court would act upon the record as sent up from the Register of Wills. We are not greatly impressed with the argument that tne hearing in the Superior Court should be considered de nova in nature because the decree of distribution may be granted on an ex parte application and there may be no record or even parties in the proceedings before the register. Such a situation simply shows the invalidity of the proceedings under the statute, by which it is proposed to finally determine property rights.
It is a principle that lies at the foundation of all jurisprudence in civilized countries that a person must have the opportunity of being heard before a court can deprive him of his rights. 21 R. C. L. 1262.
A notice after judgment even with the right of appeal is not equivalent to á notice before judgment where the appeal is not de nova but is .heard on the record of the court below. The burden has shifted and the appellant must sustain the burden. In an appeal to the Superior Court, as the present, if two judges are sitting the appellant must obtain the concurrence of both.
We fully recognize that the constitutionality of the distribution statute must and should be sustained unless the contrary is clearly established. We also fully appreciate the desirability of decrees of distribution when properly and legally obtained. We are, however, for the reasons set forth in this opinion, constrained to reverse the judgment of the Register of Wills and set aside the decree of distribution.