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method of proceeding, under which equity and law alike could be administered. But such a conception was in advance of the times. Instead, from time to time under the pressure of necessity, efforts were made to administer equitable principles through forms that even for their own legitimate purposes were fast becoming archaic. The result was to create a new series of technicalities requiring a glossary of their own. When chancery powers were conferred upon the courts, the fact that relief was given in common law forms might have presented an obstacle to the exercise of equity jurisdiction in many instances, had not the courts, by a liberal construction of the acts conferring such jurisdiction, insisted that it was not sufficient to oust the jurisdiction of equity that complainant had a remedy at law, unless that remedy was as complete, adequate, practical, efficient and convenient to the ends of justice as that in equity. Nevertheless there are cases where the distinction is still far from clear, a situation that would be ridiculous were it not so serious to prospective litigants.
Another disadvantage that attended the system was that the equities of the respective parties were to a large extent left to the chance decision of a jury, which is more likely to be guided by sympathy or prejudice than the law of the case, or, with the best intentions in the world, is an unsatisfactory tribunal for the determination of complicated questions of fact. No doubt this is one reason for the great number of references to arbitrators to be found on the early dockets.
It is true that for purely defensive purposes the system had decided advantages. It permitted a defendant to put in an equitable defense without resorting to another jurisdiction for relief. But on the offensive it broke down. The common law offered no adequate substitute for the bill for an injunction, to enforce
specific performance of contracts, to reform or cancel instruments, to obtain a receiver, for the bill quia timet and the bill of peace.
Present social and commercial conditions tend to increase rather than diminish the importance of equity jurisdiction. Such matters as trade-marks, copyrights and patents; corporations, associations and trusts; trade disputes and interstate commerce, present problems that would seem almost incapable of solution except through chancery procedure, either in its original form or as assimilated by code practice, without a revolutionary reconstruction of the entire legal system.
Some reformation of our procedure belongs to the future. Of that we may be certain. It is impossible to imagine that our technical and complicated practice will not fall some day of its own weight and be replaced by a procedure clearer, simpler and more scientific. In that golden age, when the practice of law will be a pleasant diversion and the bringing of a suit the opening bar of a symphony, if one of our learned profession now living is permitted, as a shade, to revisit the scene of his earthly struggles, he will be able, perhaps, to recognize traces of equity procedure, but the common law actions will belong as completely to the past as himself, or, to put it more humanely, as the actio sacramenti of the Roman or the weregeld of the Saxon.
In the preceding pages brief references were made to the register's court and orphans' court. The rise of the latter tribunal from a humble beginning to its present important position is sufficiently interesting to warrant a more detailed account of its functions and growth. However unobtrusively the work of its judges may be performed, it should not be permitted to escape attention, for, as Judge Duncan grimly puts it, “as sure as we descend into our graves, so sure into this court we must come.”1
During the American colonial period the settlement of the estates of decedents belonged, in England, principally to the ecclesiastical courts. Briefly, the territory of England was divided into two provinces, Canterbury and York, each presided over by an archbishop or metropolitan. Each of the provinces was divided into dioceses. With exceptions, which it is unnecessary to particularize here, the bishop of the diocese where the decedent had his last domicile had the power to appoint the administrator and settle his accounts, and where there was a will, it was proved before him and letters testamentary issued thereon. When so acting, he was called the "ordinary” and held what was called the "consistory court," either in person or by a deputy styled his commissary. From this court an appeal would lie to that of the archbishop and thence to the king in chancery, that is, to the court of delegates," appointed by the king's commission under the great seal.
1 McPherson v. Cunliff, 11 Sergeant & Rawle's Reports, 431 (1824).
2 Williams on Executors, Part I, Book 4, chapter 1.
Here and there were districts called "peculiars," exempt from the jurisdiction of the ordinary and subject to the metropolitan only. The court of appeal of the Archbishop of Canterbury was called the Court of the Arches, because formerly held in the church of Saint Mary le bow (Sancta Maria de arcubus), and was presided over by the “dean of the arches." If the decedent left bona notabilia or chattels to the value of one hundred shillings in two different dioceses or jurisdictions, then probate or administration belonged to the archbishop, by way of special prerogative, and the matter was cognizable in the “prerogative court” before a judge appointed by the archbishop.1
Such a system was wholly impractical in America, where the principle of an established church, even in the most loyal colonies, never gained more than a precarious foothold. It would have met with the opposition not only of the many sects into which the emigrants were divided, but also with that, probably, of the common lawyers, whose jealousy of the canonists and civilians was then at its height. But the feeling that probate and administration were something separate and apart from the common law was sufficiently strong in most of the colonies to lead to the creation of separate tribunals for the exercise of jurisdiction over decedents' estates, and to the retention of, at least, a supervision over such matters by the governor and council. By a law of the colony at Plymouth of 1633 wills were to be probated before the governor and council, while in Maryland in the records of the court held at St. May by the proprietor and his council, beginning 1637, are
1 Blackstone's Commentaries, Vol. II, 590, Vol. III, 64.
Article on Wills by L. M. Dagget in Two Centuries' Growth of American Law, 167.
3 Laws of the Colony of New Plymouth (Edition of 1836), 32.
many instances of the grant of probate or administration as well as of the settlement of executors' accounts. 1 In the Massachusetts Colony probate of wills was to be made at the county court, but by an act of 1652 two magistrates with the recorder or clerk of the county court meeting together were authorized to allow wills and grant administration, reporting to the county court.2 The charter of 1692 made the governor and council a court of probate, although these officials seem to have exercised their jurisdiction through the county judges, with an appeal reserved to the governor and council as a supreme court of probate.
As we have previously seen, the Duke of York's laws for the government of New York were in 1676 put in force in the settlements on the Delaware by Governor Andros. These laws contained minute provisions for the care of the property of decedents. Upon the death of any person it was made the duty of the constable with two overseers of the parish to “repair to the house of the deceased party to enquire after the manner of his death and of his will and testament and in case none doth appear or shall be produced, it may be taken for granted that the person died intestate,” whereupon security was to be taken for the care of the estate until the next court of sessions, where all cases of probate and administration were to be adjudged. Administration was to be granted to the widow or children upon the entry of security and an inventory filed.
“But in case the deceased Dye without widow or Child, then the estate, for the better improvement thereof shall be sould by order of the Court at an Outcry, and the purchasers all puting Security, and Acknowledging Judgment for their debt which by the Court shall be Assigned to the several Creditors
1 Maryland Archives, Judicial and Testamentary Business of the Provincial Court, 12.
2 Laws of the Colony of Massachusetts (1672), 157.