1225 1 of 5
COURT OF CHANCERY
A Court of Chancery headed by a chancellor was not established in Delaware until 1792. Before that time chancery or equity cases were tried by justices of the law courts. Under the Duke of York, the town or country courts were responsible for equity cases. Some cases tried by common law were appealed and tried again in equity by the same court and justices. Under the Duke of York, the governor of New York also exercised equitable power by overturning excessively harsh law judgements.1
The judicial system established by William Penn made every court a court of equity. The Provincial Court took appeals and heard all cases in equity not determined by the county courts.2 In 1701 it was required in equity cases that “the proceedings shall be by bill and answer, with such other pleadings as are necessary in Chancery Courts, and proper in these parts; with power also to the same justices to force obedience to their decrees in equity by imprisonment or sequestration of lands, as the case may require.”3
Although the terms Court of Equity and Court of Chancery were used interchangeably in court documents as early as 1702, it is not until 1752-1753 that the court is referred to as the Court of Chancery in the Delaware Laws.4 By this law (1752-53), landowners could petition the court to appoint three commissioners to examine witnesses who could verify land boundaries. Depositions that resulted from the examination were returned to the court to be recorded.5 Registers in Chancery are first mentioned in 1770 in “An Act for regulating and establishing fees.”6
Under the 1776 constitution, the justices of the Courts of Common Pleas were given the same power of holding “Inferior Courts of Chancery” as they had previously exercised. The president and Privy Council appointed the registers in chancery. The register could not be a justice of the court was given the authority to sign all writs issued by the judges and to take recognizances of bail.7
The 1792 constitution introduced major changes in the state’s judicial system. The equity jurisdiction that had previously been exercised by the common pleas judges was “separated from the common law jurisdiction and vested in a Chancellor.” The chancellor held court in each county. In cases in which he was personal involved, the case was tried in the Court of Common Pleas. Appeals from the chancery were made to the High Court of Errors and Appeals;8 the Courts of Equity that previously had been exercising chancery jurisdiction remained in operation until October 1793.9
In addition to equity jurisdiction, the Court of Chancery was given the responsibility for “the case of all idiots and lunatics above the age of twenty-one years.” The court would summon a jury to determine if a person was insane, and the court would then appoint a trustee to take charge of the person and manage his estate. The trustee had to file a recognizance for faithful discharge of his duties and render an account of the profits of the estate and his expenses for his trusteeship at least once every year.10
An amendment to the constitution passed in 1802 made the chancellor the only judge for the Orphans’ Court. He was given the authority to “exercise the equity jurisdiction heretofore exercised by the Orphans’ Court, except as to adjusting and settling executors’, administrators’; and guardians’ accounts.” With these accounts he did have appellate jurisdiction over the register of wills’ rulings.11 The chancellor also could compel a removed executor or administrator to deliver papers and property belonging to the estate.12
After 1816 a person holding land as a joint tenant could petition the chancellor to partition the land. If other joint tenants did not object, the chancellor issued commissions to five freeholders to make a fair partition and make a return with a survey included.13
1225 2 of 5
COURT OF CHANCERY
The 1831 constitution made few changes in the Court of Chancery but did abolish the Court of Common Pleas, so that cases in which the Chancellor was personally involved were now to be tried by the chief justice of the Superior Court. The chancellor continued to head the Orphans’ Court but was joined by the associate judge residing in the county. Either one or both could hold court.14
In 1869 the Court of Chancery and the Orphans’ Court were permitted to invest money under orders of the court and to secure it for the use of the person entitled to it.15 An addition to the court’s responsibilities for the insance occurred in 1871 when relatives or friends could apply to the chancellor to have a mentally ill person placed in an institution for the insane in Pennsylvania instead of the county almshouse. The chancellor was then required to appoint a trustee to manage the estate and to get an annual report from the asylum.16
Also in 1871 the chancellor was required to collect and publish the equity cases brought before the court.17 To save costs in cases that were appealed, the chancellor was permitted to send original depositions and exhibits to the Court of Errors and Appeals rather than copies.18
Whenever a person made voluntary assignment of his estate to another person in trust for his creditors, the assignee had to file an inventory of the estate with the register in chancery. The chancellor then appointed two appraisers who determined the value of the estate, and the assignee gave bond for double the appraised value. The assignee had to render an account of his trusteeship every year.19
Under the 1897 constitution, the court continues to have all the jurisdiction and powers vested by the laws of this state in the existing Court of Chancery. The chancellor is appointed by the governor for twelve-year terms. The appointment must be approved by the Senate. The chancellor and the resident associate judge held the Orphans’ Court in each county until the 1951 judicial reorganization. Since 1951 and until the Orphans’ Court was abolished in 1970, the president judge and the associate judges of the Superior Court held the Orphans’ Court.20
Before 1939, if the chancellor was disqualified from hearing a case, the chief justice of the Supreme Court had jurisdiction. In 1939 the position of vice-chancellor was created to help relieve the caseload burden and to hold court in the chancellor’s absence. He was appointed by the chancellor and commissioned by the governor, but since 1949 has been appointed by the governor to twelve year terms, with Senate approval.21 In 1961 one additional, and in 1983 two additional, vice-chancellors were added to the court.22
The register in chancery serves as the clerk of the Court of Chancery and as such is responsible for the records of the court. He is also required to report real estate transfers to the county Boards of Assessment.23 Until 1970 when the Orphans’ Court was abolished, the register was also the clerk of the Orphans’ Court.24
In 1903 the chancellor was given the authority to appoint masters to assist the court in specified judicial duties. Since 1974, when the General Assembly created the Office of Public Guardian, the chancellor has been responsible for appointing a public guardian who serves as a guardian for the property and/or person of the aged, mentally infirm, or physically incapacitated.25
Under the 1897 constitution, the court’s main responsibility continues to be “to hear and determine all matters and causes in equity.” Cases for which there are common law or statutory remedies can not be tried in chancery. In cases where issues of fact arise that are triable by jury, the issues of fact are referred to the Superior Court for trial.
1225 3 of 5
COURT OF CHANCERY
Because of the equitable nature of many estate cases, the Court of Chancery was permitted to exercise jurisdiction in cases for which other courts had not been given specific power, “or for which methods of relief available before such courts are imperfect or inadequate.”26 The court has the authority to enter decrees of distribution in the administration of estates and can distribute assets of a decedent’s estate.27 Under certain circumstances chancery could exercise jurisdiction on exceptions to accounts passed before the register of wills and compel executors and administrators to account.28 Appeals from the Register’s Court are made to Chancery.29
After the Orphans’ Court was abolished in 1970, the Court of Chancery took over all Orphans’ Court functions except for adoptions and terminations of parental rights. These responsibilities were given to the Superior Court.
A major function of the Chancery Court is to oversee trusts. Whenever a will that contains a trust is probated before the register of wills the Register of Chancery must be informed. The register in chancery then records the pertinent information. All trustees named in wills or appointed by the court have to file accounts with the register.30 Persons renouncing their trusteeship must file a written renunciation which the register records in the chancery docket.31 Trustees who are not properly administering their trust can be removed by the court.32
Another responsibility of the Court involves corporations. In cases of bankruptcy or the dissolution of a partnership, the court appoints receivers. The court has the authority to prevent delinquent corporations from doing business.33 When a corporation is delinquent in tax payments, the attorney general requests that the court appoint a receiver to manage the corporation’s affairs.34 The chancellor also has the power to prevent the fraudulent sale or exchange of stocks, bonds, notes, and securities.35
Beginning in 1931, the insurance commissioner was permitted to have the court enforce orders issued by him. Appeals to his decisions were to be made to Chancery Court.36 Appeals of State Housing Board decisions were also made to the Court of Chancery.37
Other duties of the chancellor include appointing arbitrators in labor disputes, and enforcing union contracts by issuing restraining orders or injunctions and regulating picketing.38
The court issues subpoenas, summonses, and other processes to force defendants to answer actions in court. It can force obedience to its judgments by imprisonment or sequestration of lands, and the court is permitted to sell real estate to execute a judgment. Appeals from chancery are made to the Supreme Court.39
1225 4 of 5
COURT OF CHANCERY
1 William T. Quillen, “A Historical Sketch of the Equity Jurisdiction in Delaware,” (PhD. diss., Univ. of Virginia, 1982), pp. 22, 30-37.
2 Ibid., p. 46.
3 Ibid., p. 49.
4 Leon DeValinger, Sr., ed., Court Records of Kent County, Delaware, 1680-1705 (Washington, DC: American Historical Association, 1959), pp. 214, 285, 315. 1 D.L., Ch. 144.
5 1 D.L., ch. 144; 2 D.L., ch. 129.
6 1 D.L., ch. 204.
7 1776 constitution, Art. 12-13.
8 1792 constitution, Art. IV, 1, 2, 14.
9 2 D.L., ch. 3.
11 3 D.L., Resolution, February 5, 1802.
12 8 D.L., ch. 25.
13 5 D.L., ch. 85.
14 1831 constitution, Art. IV, @8, 10.
15 13 D.L., ch. 459.
16 14 D.L., ch. 57.
17 14 D.L., ch. 223.
18 Rev. Code 1852, ch. 95. Rev. Code 1915, ch. 117, states that originals could be snet to the Supreme Court.
19 15 D.L., ch. 187.
20 48 D.L., ch. 109.
21 42 D.L., ch. 148. 47 D.L., ch. 177.
22 53 D.L., ch. 5. 64 D.L., ch. 218.
23 10 Del. Code, @ 2504.
1225 5 of 5
COURT OF CHANCERY
24 57 D.L., ch. 402.
25 12 Del. Code, @ 3991.
26 1897 constitution, Art. 4, @ 10, annotated notes in Delaware Code Annotated.
27 10 Del. Code, @ 341.
28 1897 constitution, Art. 4, @ 10. 10 Del. Code, @ 341.
29 57 D.L., ch. 402.
30 25 D.L., ch. 226.
31 12 Del. Code, @ 3531. 33 D.L., ch. 230.
32 12 Del. Code, @ 3501.
33 Rev. Code 1915, ch. 115.
34 22 D.L., ch. 15.
35 37 D.L., ch. 260.
36 37 D.L., ch. 52.
37 38 D.L., ch. 61.
38 46 D.L., ch. 196.
39 10 D.L., ch. 3.
January 6, 1988; January 28, 1988; March 11, 1988; May 6, 1988; January 4, 1989; January 26, 1990