McCaulley v. McCaulley

COMEGYS, C. J. : The first question to be settled is, as to the nature of the Orphans’ Court. The defence made in this case is not a legal one, but purely equitable—assuming it to be a defence to the widow’s petition. Of course, it is no defence at law, and a court of law would not notice it; but the counsel for the devisees not only claim it to be a good bar in equity, but also that the Orphans’ Court is a Court of Equity and can give effect to it. Both these contentions are opposed by the petitioner. The question of jurisdiction, being thus raised, must be first settled. If this court should decide adversely to the claim of jurisdiction, there is an end of the appeal, whatever opinion may be held of the nature and quality of the alleged bar. — 112 — The authority cited by the counsel for the devises in support of their position that the Orphans’ Court is a Court of Equity for the purpose of giving effect to defences of an equitable nature against dower, is that of Farrow v. Farrow, decided by Chancellor Ridgely sitting as Judge of the Orphans’ Court in Kent in 1822. 1 Del., Chancery—Appendix 457. In that case it was a question whether the court could give effect to a contract alleged to be an equitable bar; and the Chancellor decided that it could, on the ground that the Orphans’ Court “ is a Court of Equity as to all matters within its jurisdiction, and whatever is a bar at law or in equity may be pleaded.”—Page 462. This decision not being absolutely binding on this court, although entitled to the utmost respect as coming from one so able and learned as the late Chancellor was, and no provision, constitutional or statutory, being pointed out by him for his decision which appears to authorize its comprehensive language, it is proper that we should ascertain what is the true nature and scope of the jurisdiction of the Orphans’ Court. It is one thing, it is conceived, for a court to have certain equitable jurisdiction, and quite another to be a Court of Equity with respect to it. The distinction may appear to be subtle; but it is not, as will be found hereafter. It is a well established principle of the law, that special jurisdictions are to be regarded strictly, and the acts creating them are not to be liberally construed. Though it may be the part of a Judge, having general cognizance, using the old maxim, ampliare jurisdictionem, yet no such liberty will be given to a special Court. We have many examples in our reports where the general doctrine I have announced has been recognized and acted upon. There is, in fact, no law anywhere to the contrary. What, then, is the jurisdiction of the Orphans’ Court? To determine this requires a retrospect into the history of the establishment of courts in this locality, and the powers assigned them. Upon the restoration to the English of the places that had been captured from them by the Dutch in the Avar ended by the treaty of Westminster of the 9th of February, 1674, the Duke of York resumed possession of his grant from his brother King Charles II—of which New York and its dependency, the Delaware Colony, formed a part—and thereupon by his Governor, Sir — 113 — Edmund Andros, promulgated the laws which, eight years before, had been established at Hempstead, Long Island, for the government of the main possession. The ordinance of Andros, by which the laws were introduced here contained the following; “ 2. That there be three courts held in the several parts of the river and bay, as formerly, to wit, one at Hew Castle, one above at Uplands, and another below at Whorkil. 3. That the said courts consist of Justices of the Peace whereof three to make a quorum, and to have the power of a Court of Sessions without appeal, in which court the oldest Juctice to preside, unless otherwise agreed among themselves; above twenty pounds and for crime extending to life, limbo, or banishment, to admit appeal to the Court of Assizes. 4. That all small matters under the value oí five pounds may be determined by the court without a jury unless desired by the parties, as also matters of equity.” Page 456. The Court of Assizes, by the Duke’s laws, was to be held in New York once a year on the last Thursday of September. Page 11. By one of the Duke’s laws it is provided as follows (page 44): “ That all persons who now have or shall have any estate of goods, chattels, or lands in their possession belonging to any that are under age, shall exhibit an inventory and accounts of that said estate within three months next after publication of this law to the respective Court of Sessions where such estate shall be, and after-wards yearly; and in case such person or persons who have such estate in their hands do not at the time and place aforesaid present the inventory of such estates as aforesaid, then the whole business to the next Court of Assizes where the offender shall be fined for neglect of duty as aforesaid,” etc. Here is the first statutory provision with respect to the estates of orphans, and relates to the duties of executors and administrators. There was, before, given to the Court of Sessions, as above stated, equity jurisdiction generally : here is a special jurisdiction but it is one rather ecclesiastical as belonging in England to the ordinary, than equitable as pertaining to a Court of Equity. But it is not legal. When Penn took possession of his grants from Charles II and the Duke of York, and set up his government over his Province — 114 — of Pennsylvania and “ the three lower counties upon Delaware’7 —now the State—he caused to be enacted what is called, in the volume cited, “ The Great Law, or the Body of Laws of the Province of Pennsylvania and territories thereunto belonging passed at an assembly held at Chester, alias Upland, the 7th day of the 10th month, called December, 1682.” The 67th chapter is as follows : “ Be it enacted, &c., That the Justices of each respective county Court shall sit twice every year to inspect and take care of the estates, usage and employment of orphans, which shall be called the Orphans’ Court, and sit the first third day of the week in the first and eighth month yearly (March and October), that care may be taken for those that are not able to take care for themselves.” Duke of York’s. Laws, p. 131. This is the first legal provision for a distinct session of Court for Orphans’ benefit, and is the origin of the tribunal of Orphans’ Court, now a constitutional body. In Chapter 156 of the “ Laws made at an assembly held at New Castle the 10th day of the 3d month (May), 1684,” is to be found the following: “ That monthly and quarterly sessions be held in every county in this Province and territories by the respective Justices, and that each Quarter Sessions be as well a Court of Equity as of Law, concerning any judgment given in cases by law capable of trial in the respective County Sessions and Courts. By this it appears, not that the sessions were to be Courts of Equity, but only that in cases by law capable of trial in them, they should have equity jurisdiction also, with respect to such cases. This is very intelligible; it made those Courts equity as well as common law tribunals as to all matters within their common law jurisdiction. Id. 167. By the 158th chapter there was provision made for a Court of Appeals, and for circuit duty. Id. 168. By the 42d section of the Petition of Right addressed by the freemen of Pennsylvania and the counties to Benjamin Fletcher, Governor, it is provided, as follows: “ That the Justices of the respective county court (Court of Session) shall sit twice every year to inspect and take care of the estates, usage and employment of orphans, &c., the same as in Penn’s “ Great Law,” above quoted. Id, 205. — 115 — During the Governorship of Benjamin Fletcher, and in the 5th of William and Mary (1693), certain laws were passed by him by the advice and consent of the Provincial Legislature, the third of which is “ The law about appeals to the Provincial Courts.” By the first section of this act, the jurisdiction civil and criminal of the County Courts is declared, and it is provided that they “ shall be held and kept quarterly in every county of this Province and counties annexed, and oftener if occasion be, which County Courts shall be Courts of Equity for the hearing and decreeing all matters and causes cognizable in the said Courts under the value of ten pounds.” Then provision is made for appeal to the Provincial Courts, to be held for the county. This enactment established equity jurisdiction in the Sessions Court, or County Court, under ten pounds. Id. 225. In 1701 the separation took place between the Province and the Three Lower Counties, and thenceforth there were distinct legislative bodies. But before that event an act was passed entitled, “An act for establishing Courts of Judicature in this Province and Counties annexed,” by the first section of which it was directed that there should “ be holden and kept a County Court of Sessions ” four times a year in each of the counties of Philadelphia, Bucks and Chester (the three upper counties) and in New Castle, Kent and Sussex (the three lower counties) four times each year on certain days mentioned in May, August, November and February, and that there should be a competent number of Justices in every of the said counties appointed by the Governor,” Ac., three of whom should be a quorum, and were thereby impowered to exercise criminal jurisdiction and “shall award process, call special court, hold pleas, and hear and determine all actions, suits and causes, civil, criminal, real and mixed, observing as near as may be respecting the infancy of this government and capacities- of the people, the methods and practice of the King’s Court of Common Pleas in England,” &c. In the clause next but one following it is enacted—“ further, that the said Justices in the respective County Courts shall have full power and are hereby impowered and authorized to hear and determine all such matters and causes of equity as shall come before them in the said courts, wherein the proceed — 116 — ings shall be by bill, answer, with such other proceedings as are necessary in Chancery Courts and proper in these parts,” &c. By the next section a Provincial Court, to consist of five Judges, was established, to sit twice a year in Philadelphia, at least two of the five Judges of which were to go circuit into the counties and hold a court twice in each year on certain fixed days for each county. These courts had jurisdiction of capital felonies (which the County Courts had not) and also apellate jurisdiction from the latter. Notice of the appeals however was to be given by the clerk to the Governor, who was to notify the Judges. Page 113. The Governor also upon application of a party—who had ground to move in arrest of judgment, but did not do it in time—had power to issue a writ of error, &c. The notice to be given by the Governor in case's of appeals, to the Judges (who were to hear them) is probably all that is meant by the expression quoted by Chancellor Ridgely from the 8th Section of the act for establishing Orphans’ Court, Yol. 1, D. L., p. 92, or it may be explained by some supposed sovereign power of equity in Governors, as Sir William Keith, Governor from 1717 to 1726 once announced his purpose to hold with the assistance of his council a Court of Chancery for the Province upon a complaint' made that Courts of Chancery or Equity bad been too seldom held therein. Duke of York’s Laws, 386. On page 317 of this volume, it is provided that for the better regulating the Orphans’ Court of this government, it is hereby enacted, “ That the Justices of the respective County Courts, or a quorum of them, calling to their assistance the Register General, or his deputy for the time being, in each county-of this Province and Territories, shall have full power and are hereby impowered to hold and keep the said Orphan’s Courts, after the business of the County Court in spring and fall is over, or as often as they shall see occasion, in the same places where the respective County Courts are held from time to time; with full power to award process and cause to come before them all and every such person and persons as are or shall be intrusted with, or in any ways accountable for, any lands, tenements, goods, chattels, or estate belonging or which shall belong to any orphan or persons, under age, either as guardians, tutors, trustees, executors and administrators, and cause — 117 — them to make and exhibit, within a reasonable time, true and perfect inventories and accounts of the said estates; and to require and take bonds and security of such guardians, trustees, tutors, executors and administrators for the legacies, portions, shares and dividends of estates, real and personal, belonging to orphans or minors as occasion shall require. With power also to make equal distribution of the surplusage of the said estates as to justicé and equity shall appertain; having due regard to the directions and bequests of all last wills and testaments in ordering such distributions, as also to the laws of the government from time to time. With power also to admit orphans or minors, when and as often as there may be occasion to make choice of guardians, or tutors, and to appoint guardians, next friends, or tutors over such as the said court judge too young or incapable, according to the rules of the common law, to make choice themselves: and to order and direct the binding and putting out of orphans or minors apprentices to trades, husbandry, or other employments, as shall be thought fit. And that all guardians, trustees, administrators or ■ tutors which shall be appointed by the respective Orphans’ Courts shall be admitted and received, without further admittance, to prosecute and defend all actions and suits relating to their pupils, orphans, or minors, as the case may require, in any court or courts of this Province and Counties annexed. And it is further enacted that if any person or persons being duly summoned ten days before the day to be appointed for his or their appearance in the respective Orphans’ Court to which the summons is returnable, shall refuse or neglect to appear according to summons, or if when they appear do refuse or delay to become bound, to bring in their inventories, or render accounts as aforesaid, then it shall and may be lawful for the Justices of the respective Orphans’ Courts to issue forth their warrants for arresting and committing the person or persons so refusing, or neglecting, to the county gaol where he or they are or can be found, there to .remain until they comply with the court’s order in that behalf. Provided always, that those who bring inventories, give bond and make accounts in the Orphans’ Courts pursuant to this act, shall not be obliged to give bond, exhibit inventories or accounts for the same things or estate, to the Register General’s office or elsewhere, but that all persons, having the power — 118 — of probate of wills and granting administration, in this government shall cause all inventories and accounts as shall be brought to them relating to orphans or minors estates, into the respective Orphans’ Courts as aforesaid, to be filed and kept there, and shall receive and take the fees due for the same as if they were to be filed, entered? copied and transacted in the Register General’s office.” This act was passed 28th October, 1701. After the separation between the Province and “ Lower Counties,” an act was passed entitled “An Act for establishing Orphans Courts.” The date is not given; but it was somewhere between 1721 and 1726. After referring in the preamble to the fact that several important matters are directed to be done by the Orphans’ Court, but that upon perusal of the law directing the doing thereof the same appears to be very deficient, and divers orphans, and persons concerned for them, or entrusted with their estates, labor under great inconveniences, the act provides that the Justices of the Court of General Quarter Sessions of the Peace in each county of this Government, or so many of them as are or shall be, from time to time enabled to hold those Courts, shall have full power and are hereby impowered in the same week that they are or shall be directed to hold the same Courts, or at such other times as they shall see occasion, to hold and keep a Court of Record in each of the said counties, which shall be styled The "Orphans’ Court; and ■to award process and cause to come before them all and every such person and persons who as guardians, trustees, tutors, executors, administrators, or otherwise are or shall be entrusted with or anywise accountable for any lands, tenements, goods chattels or estate belonging, or which shall belong to any orphans, or any persons under age, and cause them to make and exhibit within a reasonable time true and perfect inventories and accounts of the said estates, and to cause and oblige the Register, or such person or persons as for the time being shall have the probate of wills and granting letters of administration in this Government, or deputies upon application made in that behalf, to bring or transmit into the Orprans’ Court true copies, or duplicates of all such bonds, inventories, accounts, actings and proceedings whatsoever, now or hereafter being or remaining in the respective offices or elsewhere within the limits of their authority, as do or shall concern or relate to the said — 119 — estates, or any of them, and to order the payment of such reasonable fees for the said copies, and for all other charges, trouble and attendance which any officer or other person shall necessarily be put upon in'the execution of this act as shall be equitable and just; and if upon hearing or examination thereof it appears to the Justices of the said Court that any of the said officers have misbehaved themselves to the prejudice of any minor, or any concerned for them as aforesaid, the said Justices are hereby required to certify the same accordingly, which shall be good evidence for the party grieved to recover his damages at common law. And where any letters of administration shall be granted, and no bond with sureties given as the law in that case requires, such letters of administration shall be and are hereby declared to be void and of none effect; and that the officer or person that grants the same, and his sureties, shall be, ipso facto, liable to pay all such damages as shall accrue to any such person or persons by occasion of granting such administration; and the party to whom the same shall be so granted may be sued as executor in his own wrong, and shall be so taken and deemed in any suit to "be brought against him for or by reason of his said administration.” Then follow other provisions in various sections, all enacted with a view to minors’ interests. It is unnecessary to quote them. The object of this act appears to, have been to establish the Orphans’ Court as a distinct tribunal unconnected with the County Court, though having the same judges, and also to more correctly define its jurisdiction, as well as enlarge it so that it should embrace every subject affecting the interest of orphans or minors. The 7th section gives the judges power to issue attachments for contempt, and force obedience to “ their warrants, sentence or orders concerning any matter or things cognizable in the same courts by imprisonment of body, or sequestration of lands or goods as fully as any Court of Equity may or can do.” Then comes the section referred to by’ Chancellor Ridgely in Farrow v. Farrow. “ Sec. 8. Provided always that if any person or persons shall be aggrieved with any definitive sentence on judgment of the said Orphans’ Court, it shall be lawful for them to appeal from the same to the Governor for the time being, in equity, which appeal, upon security given as is usual in such cases, shall be granted accordingly.” — 120 — We find no change in the Orphans’ Court until 1802, when an amendment was made to the constitution, adopted in 1792, annulling the 15th section of the 6th article, which constituted the Judges of the Court of Common Pleas the Orphans’ Court, and making the Chancellor the sole Judge thereof. This state of things continued till our present constitution was adopted in 1831, which composed the Court of the Chancellor and the resident Judge of the county. In the abrogated section of the 6th article, it is provided that the Common Pleas Judges shall and may exercise the equity jurisdiction heretofore exercised by the Orphans’ Court, except as to the adjusting and settling of Executors, Administrators and Guardians accounts, etc.; Hall’s Digest, 25. The same language is used in the substituted provision, lb. 30. In the constitution of 1831 it is provided, with reference to the Orphan’s Court “ This Court shall have all the jurisdiction and powers vested by the laws of this State in the Orphans’ Court” : Sec. 10 of Art. 5. With these different provisions of law and constitution as our only guide to go by, we are called upon to give our opinion whether the Orphans’ Court is a Court of Equity. It will be seen, at once, upon reviewing the several provisions of law to which I have referred, or quoted, and they are all that bear upon the question, that the Orphans’ Court can only be considered a Court of Equity in a very restricted and modified sense. It is certainly true that, at the time Farrow v. Farrow was decided, the acts to be performed by the Court were of an equitable nature* and the proceedings and jurisdiction were such as pertained to a Court of Equity: but that did not make it a Court of Equity in the full sense of that term, but only gave it a “ limited statutable jurisdiction” (using language of Judge Story) to be exercised, not by virtue of the court’s inherent powers (for it had none) but as designated by statutory provision. In the beginning there was no distinct court, but the Justices of the Superior Courts or County Courts were to perform certain offices or duties with respect to the estate of minors. When the Courts of Common Pleas were created, these functions were transferred to the Judges of those courts whose sessions were to be in the same week as those of the Pleas Courts. Then the Court came to be held by the Chancellor by the — 121 — constitution of ’92, and later (as now) by him and the Associate Judge of the county. It may be conceded to be true that all the Orphans’ Court jurisdiction is of an equitable character, and that its modes of proceeding are in the main, similar to those used in equity; and yet that will not make it, what it must be to try the plea in this case, a Court of Equity. Sub modo it is such a court; but it cannot entertain a bill for relief, or discovery as a Court of Equity can. By the old statutes it could call before the Justices, executors, administrators, guardians and others who had properly of orphans in their hands, and make them exhibit inventories accounts, &c., and bind out minors to apprenticeships, invest their money, &c., but though this was equity jurisdiction to some extent, it was all to be done secundum formam statute. It had no other power than the statute gave. The establishment of Registers’ Courts, and the jurisdiction they were endowed with, took away the control over executors and administrators to a great extent—a power, as has been before suggested, rather ecclesiastical than equitable. As evidence that the Orphans’ Courts were not Equity Courts, but only Statutory Courts with jurisdiction of very limited equity subjects, and without any general power of relief even in them, I refer to the first section above in part quoted of the act, above mentioned, for establishing Orphans’ Courts (Vol. 1, Del. Laws, 87) wherein it is provided that if upon hearing and examination thereof (that is, of the proceedings of those having to do with minors’ property) it appears to the Justices that the minors’ interest has been prejudiced by their misbehavior, the Justices are to certify the fact, which would be good evidence “ for the party grieved to recover his damages at the common law.” Why such a provision, if the Orphans’ Court was a Court of Equity? A Court of Equity having taken jurisdiction of such a case for relief, would give it without sending the minor to the common law for recovery of damages for breach of the official bond. Looking at the question before us in every light that shines upon it for my vision, I cannot view the court as a Court of Equity like the Court of Chancery is even for or with respect to the subjects of its own jurisdiction; but simply as a court created by statute and invested with a small portion of equity jurisdiction, or rather with limited — 122 — and expressly defined jurisdiction over a very few subjects of equity cognizance/ in which it proceeds (it could not appropriately do otherwise) by certain equity forms prescribed by law. But, as Courts of Equity in the ordinary sense do, it cannot proceed to hear any case in such manner as to give, where the circumstances require it, relief as in cases tried upon bill, answer, exhibits and depositions. There is no process of the court, or practice, by which the conscience of a party can be searched for evidence, no course of trial by depositions, no machinery or rules of pleading—nothing but simple petition, and appropriate action thereunder. . The jurisdiction of this Court to divide land among the parties entitled, is a legal as well as equitable jurisdiction, and was so when the first act was passed creating Orphans’ Court jurisdiction; and when the dower act of 1816 was passed (that under which the petition in' this case was filed) no jurisdiction of an equitable nature, in dower, was given to the Court, but only the power to lay it off by such machinery as it employed in cases of intestate estates. No express power is given to the Court to try any defence made to the widow’s petition; that held to result from the language of the act, cannot, by any reasoning satisfactory to me which I have yet heard, be taken to invest a Court of the limited scope I have pointed out the Orphans’ Court to be by the laws of its creation, with power to entertain and pass upon a defence so peculiar as that set up in this case, but denied to be valid anywhere; one which certainly depends for its allowance upon an equity only expressly asserted in the single case of Livingstone v. Livingstone, brought before us by the counsel for the devisees. As illustrative of the defective nature of the equity powers of the Orphans’ Court, I would call attention to what I may treat as a fact—that if a widow petitioning for dower under the act of 1816 had to rely upon discovery through the defendant of her husband’s title to the lands out of which she claimed her dower, she could get no discovery through the Court’s power, but would have to resort to the Court of Chancery for the exercise of the necessary equity power in the premises. Why should this be if the Orphans’ Court is a Court of Equity adequate for the trial of dower cases, where equitable relief is needed in the support of petitions for assignment ? — 123 — The consideration I have been able to give to the subject of dispute in this case satisfies me that the Orphans’ Court has no power to refuse an order to assign dower upon any other defence than one which would be available at law, viewing it as I do as a Court of Equity only so far as the special subjects of jurisdiction originally committed to it are of an equitable nature, and the forms and methods of proceeding in it are adequate to the examination and decision of equitable questions. The provision of the act of 1816 giving the Orphans’ Court power to lay off a widows’s dower in all cases (contemplated by the statute) when she is entitled to it, which Chancellor Ridgely considered an argument in favor of the equity character of the court, I do not regard as meaning anything more than that where there is no valid legal defence, the court may issue its order of assignment as in cases of intestacy. There is still another view of this question to be considered. It cannot be disputed that the Orphans’ Court is no Court of Equity to give a party any equitable relief, as has been before said, it could not entertain a bill by a widow for discovery to enable her, in that court or in a Court of Law, to establish her legal right—her right of dower being a purely legal one. What then can the Orphans’ Court do when she presents her petition in it to have her dower assigned ? She asks no aid of an equitable nature, but only the issuance of an order of assignment, which the law says she may have upon her application. Is this asking any aid of an equitable nature from an Equity Court? This is a crucial question. Certainly it is not: for the court has no inherent equitable power to grant it, and none of any kind not given by the act of 1816. She, therefore, in no sense calls for help from a Court of Equity to establish her title to dower (which could be withheld or granted on condition of doing equity), but only that it may, as the law directs, put in force the same machinery in her case for the assignment of her dower, which it employs every term in the case of widows of intestates. As this is legal machinery—that is created by statute law, and not having any essence or element of equity in it—no bar to its issuance can be allowed in the Orphans’ Court, which has no power to give her equitable aid if she should seek it. For the above reasons my opinion is that the decision made in — 124 — this case in the court below was right; and that the appeal should ■ be dismissed.