Beall v. The Surviving Executors Of John Fox

Decision Date31 May 1848
Docket NumberNo. 46.,46.
Citation4 Ga. 404
PartiesCatherine E. Beall, et al. plaintiffs in error. vs. The surviving Executors of John Fox, defendants.
CourtGeorgia Supreme Court

In Equity, in Richmond Superior Court. Tried at January Term, 1848, before His Honor, Judge Holt.

The defendant in error, as the surviving executors of John Fox, filed their Bill in Equity in the Superior Court of Richmond county, against the plaintiffs in error, as the heirs at law of John Fox, and certain charities, residuary legatees under the will— charging, that John Fox died in February, 1837, having duly made and published his last will, a copy of which was attached, wherein, after various specific legacies, he desired "the residueof the proceeds of his estate to be divided into five equal parts, of winch he disposed as follows, viz.:

"I give and bequeath one-fifth part of said residue to the "Treasurer of the American Bible Society, and to his successors "in office, for the sole use, benefit and behoof of the said Ameri"can Bible Society."

"I give and bequeath, also, one-fifth part of the said residue to "the Treasurer of the American Education Society, for the sole "use and benefit of the said American Education Society."

"I give and bequeath one other fifth part of the said residue "unto the Treasurer of the American Board of Commissioners "for Foreign Missions, and to his successors in office, for the sole "use, benefit and behoof of the said American, Board of Commis"sioners for Foreign Missions."

"I give and bequeath one other fifth part of the said residue to "the Treasurer of the Augusta Free School Society, and to his "successors in office, for the sole use, benefit and behoof of the "said Augusta Free School Society."

"And I give and bequeath the remaining fifth part of the said "residue to the Treasurer of the Domestic Missionary Society of "Georgia, and to his successors in office, to and for the sole use, "benefit and behoof of the said Domestic Missionary Society of "Georgia."

The Bill charged that the "American Bible Society, " established 181G, remained unincorporated until 1841, when it was incorporated by an Act of the Legislature of New York—that the "American Education Society." was incorporated under its present name, in 1820, by the Legislature of Massachusetts—that the "American Board of Commissioners for Foreign Missions, " were incorporated by an Act of the Legislature of Massachusetts, in 1812—that the "Augusta Free School Society, " was incorporated by an Act of the Legislature of Georgia in 1821. And that the "Domestic Missionary Society of the State of Georgia, " was formed on the 4th April, 1825, at the General Session of Hopewell Presbytery, at Lexington, in this State—that the object of its formation was to send ministers wherever the Society should deem it expedient, in the State of Georgia, in building up feeble churches—that said Society, though unincorporated, has been in active operation ever since, and that Elizur L. Newton of the county of Clarke, in said State, was at the time of the death of John Fox, and has been ever since, the Treasurer thereof. The Bill further charges that said association, through their officers, have made frequent application for the fund thus devised and that the heirs at law, on the contrary, notify the Executors not to pay our any part thereof. Under these circumstances they pray the direction of the Court, and filed their Bill for that purpose.

The several answers amditted the facts stated in the bill.

At January Term, 1848, of the Superior Court of said county, the cause was submitted to a jury, when the counsel for the heirs at law, requested the Court to charge the jury:

1st. That this Court, in the exercise of its Equity jurisdiction, has no power to grant the prayer of the Bill having no powers as a Court of Chancery, but such as are granted by the Judiciary Act of 1799, and subsequent Statutes.

2d. That if the Court had such powers, the Statute 9 Geo. II. Cap. 36, is of force in this State; and by virtue of said Statute all said residuary legacies are void.

3d. That two of the Residuary Legatees, to wit, "The American Bible Society" and "The Domestic Missionary Society, " not being bodies corporate and politic, either at the date of the devise, or the death of the Testator, were incapable of taking under said devise.

4th. That the Statute 43 Eliz. Cap. 4, is not of force in this State.

5th. That this Court, as a Court of Chancery, has no inherent power, independent of said last mentioned Statute, by which it can carry into effect the supposed intention of the Testator, in the residuary clause of his Will.

All which points the Court refused to charge, but did charge the Jury:

"1st. That this Court is a Court of general Equity jurisdic"tion, having full power to grant the relief here prayed for."

"2d. That the Statute 9 Geo. II. Cap. 36, is not and never "was of force in Georgia."

"3d. That the want of corporate powers in two of the legatees, "is not material; the party intended to take, being clearly point"ed out, and a Trustee able to hold, this Court will carry out the "Testator's intentions for the benefit of the Charity."

"4th. That the Statute 43 Elizabeth, Cap. 4, is of force in "Georgia; but whether it is or not does not affect this case; for, "5th. Independently of that Statute, this Court has all the in"herent power necessary to carry out these bequests."

To all which exceptions were filed, and error assigned on each point.

Gould & Starnes, for plaintiff in error.

Jenkins & Cone, for defendants in error.

Argument of E. Starnes, for the plaintiff in error.

A Court of Equity in Georgia, has no power to grant the prayer of this bill, and instruct the executors, by its decree, as to the payment of these legacies.

The Courts of Equity in Georgia, are of limited jurisdiction, having only those powers which are granted by Statute.

Our jurisdiction in Chancery, is not co-extensive with the Chancery jurisdiction in England. Chancery jurisdiction in England was almost unlimited. It was, in the words of Sir. Wm. Blackstone, "a vast and extensive jurisdiction, " 3 Black. Com. 47.

1. Chancery jurisdiction in England, as representing the parens patriae, the King had a prerogative jurisdiction, which gave it the custody of infants, idiots and lunatics, and the superintendence of all charities.

2. The King is universal guardian of infants, who delegates it to the Lord Chancellor. 1 Black. Com. 382, 384. 2 Fonb. Eq. 5th Ed. 225. Ch. Pre. Reg. 155.

By virtue of this power he might appoint guardians to infants who are without them, and control infants, and their estates. 4 Wheat. 1 Con. Rep. U. S. 385. 1 Black. 384. As to Charities, see Jer. Eq. Juris. 234.

Now this prerogative jurisdiction is wanting to our Courts. The appointing of guardians for infants, is given by our laws to other Courts.

No provision is made by them for a superintendence over charities. We have no such officer as the Chancellor in England— none to whom the Sovereignty has delegated prerogative rights— and we have no prerogative rights.

2. The Chancery jurisdiction in England, combined the exercise of Common Law powers with extraordinary Equity powers forthe correction of any matter of complaint in which the law, by reason of its universality, was deficient.

Now the matters of complaint are comparatively few which our Courts of Chancery may correct, by reason of the deficiency of the law on account of its universality; and these matters are specified by our Statues.

The objects, therefore, of our Equity jurisdiction, are prescribed and limited, though the modes of proceeding on the administration of those powers which are granted, are as extensive as those in the Chancery jurisdiction of England.

Let us see what are the objects of our Equity jurisdiction, and what the Equity powers of our Courts.

I. The Judiciary Act of 1799, gives the following:

1. The Superior Courts shall exercise the powers of a Court of Equity, in all cases where a Common Law remedy is not adequate to compel parties to discover on oath, all requisite points necessary to the investigation of truth and justice.

2. To discover transactions between Copartners, and Co-Executors.

3. To compel distribution of intestate's estates, and payment of legacies.

4. To discover fraudulent transactions for the benefit of creditors.

5. Power to entertain Bill for discovery of testimony in aid of Common Law action.

G. The proceedings in such cases to be by Bill, and such other proceedings as are usual in such cases, until the sitting down of the cause for trial.

[Therefore, when the Bill contains a prayer for Injunction, ne exeat, quia timet, &c, in any such case as those enumerated, the same shall be granted—it being a proceeding usual in such cases.]

II. 7. The several Acts regulating injunctions.

III. 8. The Acts regulating ne exeats.

IV. 9. Summary remedy against persons "running" or "about to run" estates of orphans. Act of 1814.

10. Act of 1836, authorizing one distributee to bring his bill.

11. Act authorizing the appointment of Masters in Equity.

12. Act of 1839, directing character of decree in Bill for specific performance as to land.

13. Act of 1838, as to publication.

These are the powers granted by our Legislature to our Courts of Equity.

Let us now trace our legislation on this subject for a moment, And first—Act of 1790, Wat. Di. Wat. Di. 481, 488, Act 1792. Ibid, 021, Act of 1797.

These Acts show that up to 1799, the powers of our Courts of Equity were general.

Now the Act of 1799, evidently limits this jurisdiction. Wat Di. 700, 707. See Act of 1820. Prince Di. 447.

The relief sought by this Bill is not authorized by this last Act it is clear, and if not by it, it does not exist.

This view is supported by the Courts in other States where the legislation on this subject is similar to our own. 17 Mass. R. 327. 0 Pick. 395. 20 Pick. 327. 3 Fairf. 456. 5 Greenl. 303.

[II.] But if tins Court has authority to entertain this...

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