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ORPHANS' COURT

The Orphans' Court was one of the earliest courts in Delaware and like the other colonial courts was derived from the English judicial system. Established by William Penn's new government in 1683, the Orphans' Court was founded "to inspect and take care of the Estates, Usage, and Employment of Orphans...That care may be taken for those, that are not able to take care for themselves."1 Subsequent legislation gave the court added responsibilities relating to the guardianship of minors, real estate left intestate, partition of real estate, adoptions, and appeals from register of wills decisions. The Orphans' Court was abolished in 1970, and its responsibilities and functions were divided among the Court of Chancery, Superior Court, and Family Court.

The make-up of the Court varied throughout its history. In 1683, the justices of each county court were required to sit twice a year as an Orphans' Court,2 while by the 1720's the justices of the Court of General Quarter Sessions held the Orphans' Court the same week as they held the Quarter Sessions. Appeals of their decisions were made to the Governor.3 The justices were changed by the 1776 and 1792 constitutions when the justices of the Court of Common Pleas also served as the judges of Orphans' Court. The composition of the court was again revised in 1802 when the Chancellor was made the only judge of the court. Appeals from his decisions were heard by the Supreme Court.4 The associate judge for each county was added to the court by the 1831 constitution with any of the four judges permitted to hold court. When they concurred in opinion, no appeal was permitted unless the case involved real estate. Appeals were made to the Superior Court.5 This 1831 composition of the court remained in force until the 1951 reorganization of the judicial system when the president judge and associate justices of the Superior Court were also designated judges of the Orphans' Court. No more than three justices were permitted to sit together, while only one was needed for a quorum unless the Orphans' Court was hearing appeals from the Register's Court, then two judges constituted a quorum. Appeals from the Orphans' Court were made to the Supreme Court.6

Little mention is made of the Clerk of the Orphans' Court previous to 1792, as the clerk of the Court of Quarter Sessions or the Prothonotary (after 1776) would have acted as clerk. Under the 1792 Constitution, clerks were commissioned for five year terms, while the 1897 Constitution made the position an elective office with a four year term.7

The Clerk of the Orphans' Court was responsible for keeping the records of the Court. He was required to provide books to record all petitions, orders, appointments, returns, certificates, assignments, recognizances, sentences, exceptions, decrees, and proceedings of the Court and to develop indices to all.8 Recognizances were required to be recorded in separate books within five days after they were taken.9 The Clerk was required to mark the index to the recognizances with a red "S" whenever they became satisfied.10 All other matters had to be recorded within three months.11 Curiously, the New Castle County Clerk "for some years prior to 1802" had neglected to enter the proceedings of the Orphans' Court, so the legislature authorized the Chancellor to give the unrecorded proceedings to a clerk to be recorded after the fact. The clerk also received all fees collected by the Court.12 After the Chancellor became the judge of the Orphans' Court, the positions of Clerk and Register in Chancery were held by the same person 13 which may explain why many Orphans' Court and Court of Chancery records were filed together.

The Court was given a number of powers. It had the authority to arrest, imprison, and sequester goods, chattels, rights, credits, lands, and tenements. It could issue process of citation, subpoena, attachment, and sequestration and award commissions for taking depositions of witnesses. It could also direct issues of fact to be tried by a jury in Superior Court.14

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One of the main responsibilities of the Orphans' Court was the appointment and supervision of guardians to orphans and minors. Appointments of guardians were made by the court for orphan minors under fourteen years of age unless specific guardians had been designated by a will. Minors fourteen and older could choose their own guardian, with the approval of the Court.15 The Court in the eighteenth and nineteenth centuries was also permitted to apprentice minors.16

Every guardian was bound to the ward to faithfully perform his duty. Bonds of guardians and indentures of minor apprentices were required to be recorded by the Court.17 The Court could remove a guardian for sufficient cause such as embezzling or poorly managing an estate.18 In such cases, or if the guardian resigned, a full account of his guardianship was required to be filed with the Register (after 1899 to the Clerk).19

In cases where the ward possessed real estate, the Court ordered three persons to view the property and estimate its rental value. They were also to note the improvements to the property, repairs needed, and cost of repairs, and to make a return to the Court of their findings.20 A guardian could apply to the Court to sell real estate to provide cash for the minor's estate. The Court would then also appoint three persons to view the property and report on the necessity of such a sale.21 The Court could order a guardian to spend specified amounts of money on a ward's education and maintenance or on the repair or improvement of his property. Upon application of a guardian the court could direct him to invest or lend the ward's money. The Court itself had control and could invest the money deposited by executors or administrators to the credit of minors or any money paid into court to the credit of a minor.22 If a minor had property and no guardian, the Court had the option of appointing a receiver to take charge of the property. Receivers were required to account at least annually.23

Guardians were required to keep accurate accounts of money spent and received from a minor's estate. From 1792 until 1899, guardian accounts were filed with the Register of Wills. However, previous to 1792 and after 1899, the responsibility to examine, settle, and adjust the accounts was transferred to the Orphans' Court, and the Register was required to deliver all his guardian accounts to the Clerk of the Orphans' Court. The Clerk had to keep record books for all accounts and settlements, and any release, acquittance, or receipt executed to a guardian had to be recorded and indexed. Exceptions to guardian accounts were heard in Superior Court.24

In addition to orphans and minors, the Court was also given responsibility for appointing guardians for the aged, mentally ill, and physically handicapped. After 1941, the State Old Age Welfare Commission was permitted to apply to the Court to appoint guardians to administer the property of persons receiving old age assistance or who were inmates at the State Welfare Home and the court could order the sale of all or part of the inmate's property to defray the expenses of his care.25 This power was expanded in 1951 when, upon petition, the Orphans' Court was given the authority to hear cases and judge whether the aged, mentally ill, or physically incapacitated were able to properly care for their property. If they were judged to be incapable, the Court could appoint a guardian.26

The Orphans' Court was also responsible for partitioning the real estate of a person who died without a will. The widow or another heir filed a petition for partition with the Court which described the real estate so that the Court could determine how to divide the property and to whom the parcels should be assigned. To accomplish this, the court appointed five free-holders to view the property with the assistance of a surveyor, make the divisions, and make a return accompanied by a plot to the Court. In cases where the real estate could not be partitioned without detriment to the parties involved, the freeholders appraised the property and reported the value to the court. If the court approved the return, the court then ordered the property to be sold by a trustee at public auction. The purchaser was required to enter a recognizance with the State, and divide the proceeds among the heirs.27 After 1927 joint tenants could also petition the Court to partition their land.28

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The Orphans' Court was given other responsibilities for settlements of estates. The Court was responsible for assigning widows dower and inheritances to children born after their parents' wills was written.29 In cases where the personal estate of a deceased person was insufficient to pay his debts, the executor or administrator of the estate could petition the Court to permit him to sell the real estate.30 Executors or administrators could petition the court to determine the order of preference in paying creditors.31 Any executor or administrator that had an interest in any estate could petition for a decree of distribution.32 The Court also had the responsibility to prorate among the inheritors the estate tax to be paid.33

The Court heard appeals from decisions by the Register of Wills. In cases where the inventory or list of debts was set aside by the Register, or the Register adjusted guardian, executors, or administrators accounts, either party could appeal.34 After a hearing before the Register, the testimony of the witnesses was certified as a deposition, and the depositions, inventory, or list sent to the Clerk of the Orphans' Court. The Court could affirm, modify, or reverse the decision. Decisions of the Register relating to accounts filed by executors and administrators granting or revocating administrations, the ordering of additional bond, or the removal of an executor or administrator could also be appealed.35 In cases in which the Register was interested and thereby disqualified from hearing, the Orphans' Court had jurisdiction.36

Additional duties were added in 1885 as the Court was given responsibility for adoptions. Persons wishing to adopt a child had to file an application with the Court along with an affidavit of the applicant stating that he had obtained the child lawfully. The Court then required a certificate signed by two citizens affirming that the applicant was a person of good character before it issued a decree for certification of adoption. The Clerk was required to file the applications, affidavits, and certificate and record them in a record book.37

After 1933, persons petitioned the Court for an order authorizing the petitioner to adopt a minor and, if desired, to change the name of the child. On receiving the petition, the Court directed an agent of the State Board of Charities to investigate the case and report their findings to the Court. If the report was favorable, the Court issued an interlocutory order which permitted the child to live in the petitioners home for one year. If the adoption proved suitable to all parties involved, a final order of adoption was issued and the clerk would issue a Certificate of Adoption. The Clerk notified the State Board of Charities of the final order and also the State Registrar if the child's name was changed.38 The Court was also given the power to terminate parental rights in cases where parents are judged not fit to continue custody over a child where a child had been abandoned, or where parents voluntarily relinquished control so that their child could be adopted.39

The Orphans' Court was abolished in 1970. Its jurisdiction over adoptions and terminations of parental rights was given to the Superior Court and then in 1979 transferred again, this time to Family Court.40 The responsibility for hearing all other cases was given to the Court of Chancery. All books, papers, and records created by the Orphans' Court were required to be delivered to the Prothonotary or Register in Chancery.41

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1 Staughton George, Benjamin M. Nead, and Thomas McCamant, eds., Charter to William Penn and Laws of the Province of Pennsylvania . . . Proceeded by Duke of York’s Law . . . (Harrisburg: Lane S. Hart, State Printer, 1879), p. 131

2 Ibid.

3 1 D.L., ch. 30

4 1 D.L., ch. 119

5 1831 Constitution, Art. VI; 8 D.L., ch. 106

6 48 D.L., ch. 109

7 1792 Constitution, Art. III; 1897 Constitution, Art. III

8 4 D.L., ch. 21

9 6 D.L., ch. 133; Rev. Code 1852, ch. 96

10 19 D.L., ch. 258

11 Rev. Code 1852, ch. 96

12 4 D.L., ch. 21

13 Delaware Historical Records Survey, Work Projects Administration, Inventory of the County Archives of Delaware: No. 1, New Castle (Dover: Public Archives Commission, 1941), pp. 134-135

14 4 D.L., ch. 21; Rev. Code 1852, ch. 96

15 33 D.L., ch. 231

16 1 D.L., ch. 30

17 1 D.L., ch. 186

18 1 D.L., ch. 30

19 Rev. Code 1852, ch. 96; 21 D.L., ch. 292, 293; 22 D.L., ch. 441

20 1 D.L., ch. 186

21 1 D.L., ch. 117

22 Rev. Code 1852, ch. 96

23 Ibid.

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24 1792 Constitution, Art. VI, sec. 16; 1852 Rev. Code 1852, ch. 78; 21 D.L., ch.292, 293; 22 D.L., ch. 441

25 43 D.L., ch. 227

26 48 D.L., ch. 365

27 1 D.L., ch. 119; 7 D.L., ch. 38; Rev. Code 1852, ch. 85

28 35 D.L., ch. 197

29 5 D.L., ch. 45; 1 D.L., ch. 186

30 1 D.L., ch. 117

31 41 D.L., ch. 191

32 42 D.L., ch. 143

33 46 D.L., ch. 119

34 1792 Constitution, Art. VI, 3 D.L., ch. 119

35 Rev. Code 1852, ch 89; 12 Delaware Code (1953), sec, 1571

36 1792 Constitution, Art. VI

37 17 D.L., ch. 612

38 38 D.L., ch. 162, 163; 41 D.L., ch. 187

39 48 D.L., ch. 135

40 57 D.L., ch. 402, 62 D.L., ch. 402

41 57 D.L., ch. 402

rlg: July 25, 1988; January 4, 1989