
    William Tharp, Henry B. Fiddeman and Daniel Curry, Appellants, v. Charles T. Fleming, Trustee under the will of Benjamin Potter, deceased, Appellee.
    The Legislature has no power to authorize or direct the sale and conversion of real estate into personalty, devised by a testator in perpetuity and trust to a charity ; although the act is conceived in a friendly spirit towards the object of the trust, and with a design to render the fund more productive and effectual for the purposes of the charity contemplated by the testator.
    Appeal from the Court of Chancery, Kent County. Before Harrington, Chancellor (the case below having been before his predecessor, Johns, Chancellor), Gilpin, Ch. J., Milligan, Wootten, and Houston, Justices.
    
    The appeal was from an interlocutory decree or order made by the late Chancellor, Johns, upon the petition of Charles T. Fleming, trustee under the will of Benjamin Potter, deceased, praying a writ of injunction to enjoin and restrain William Tharp, Henry B. Fiddeman, and Daniel Curry, trustees, appointed and authorized by an act of the Legislature, to sell the real estate devised by the said Benjamin Potter to charity, from selling the same, in accordance with the prayer of the said petition.
    Benjamin Potter, the testator, had by his last will and testament, devised all the balance of his estate, real, personal, and mixed, to Potter Griffith, George S. Adkins, and Levin H. Adams, with authority to sell the same at such time or times as they might deem most proper, and to pay over the proceeds thereof to the same persons as the executors of his will; and particularly enjoining it on them, or the survivor or survivors of them, or agents appointed by them, or by the Chancellor of the State of Delaware, to invest the net proceeds as it should become due, in such stocks as they or' a majority of them might deem most proper; and to reinvest the dividends which might arise therefrom, for the term of five years from the date of the purchase of the stock; and that all the net proceeds or dividends afterwards arising therefrom should be distributed by them in the following manner: one-third thereof to the trustees of the Methodist Episcopal Church in the town of Milford, Delaware, for the sole use of said church, one other third part thereof, to and for the support of the aged and infirm portion of the mechanics residing in the town of Milford, and to assist such young mechanics in setting up or commencing their respective trades, who should not be able to do so themselves of their own means, &c., and the remaining third part thereof, to be distributed among the poor white citizens of the town of Milford and Milford Hundred; the distribution to be made by agents to be appointed by the Orphans’ Court,'or Levy Court of Kent County, as might be deemed most proper; no part of the bequest, however, to be applied to the use or benefit of any person or persons residing within the walls of a poor-house, but to be distributed among such only of the poor who by timely assistance might be kept from being carried to the poor-house and becoming subjects thereof. But by a codicil afterwards executed and added to his will, he made the following alteration in the foregoing devise, by which he devised and directed that the real estate embraced in the device, instead of being sold as therein directed, should be rented out by his executors and the proceeds arising from such rents should be applied by his executors to the same purposes and for the same uses as were mentioned in said devise. It being his intention and meaning thereby to alter and amend said devise only so far as to enjoin it upon his executors aforesaid, the renting, instead and in the place of the sale of his real estate. And by another codicil subsequently executed to his will, he still further modified the devise as it had thus been altered by the former codicil, by cancelling, annulling and making void every part of his will and codicil thereto, that gave and devised any portion of his estate to the trustees of the Methodist Episcopal Church in the town of Milford, and also every part thereof that gave and devised any part or portion of his estate for the support, use and benefit of the mechanics residing in the town of Milford, and instead of said distribution to the church aforesaid, and among the. mechanics aforesaid, he gave and bequeathed that portion of his estate that was devised for those two purposes, and ,also that portion of his estate that was devised to the poor white citizens of the town of Milford and Milford Hundred, to and for the support, maintenance and education of the poor white citizens of Kent County generally, the apportionment and distribution to be made in the same manner and under the same restrictions and regulations as were mentioned and written in the aforesaid devise in his said will, &c.
    After the death of the testator and the probate of the will and codicils, the executors above named declined to take upon themselves the trusts of the will, and Charles T. Fleming was appointed by the Court of Chancery, trustee in their stead, of the real estate devised to charity as set forth in the will and codicils, consisting of several large tracts of land situate partly in Sussex, but mostly in Kent County.
    The act of the Legislature referred to in the petition of the. trustee for the writ of injunction, was entitled “An act to authorize thessale of the real estate devised by Benjamin 'Potter, late of Kent County, deceased, to charity,” Del. Laws, vol. 10, p. 523, which, after reciting in the preamble that the lands so devised to be rented out, and the rents and proceeds to be applied as provided for in the will and codicils, consisted of several tracts, for the most part covered with wood, and all extremely poor, yielding a scanty revenue,, a great portion of which, owing to the dilapidated condition of the buildings and improvements, ' and the class of tenants occupying them, was necessarily consumed in keeping up repairs, preserving the land itself from waste and destruction, and in the collection of the rents, and that the object of the testator’s charitable donation would be best effected by a sale of the same, the wood and timber on which were very valuable, and the investment of the proceeds under the superintendence of the Court of Chancery, in such manner as would yield an interest of six per centum per annum, proceeded to appoint Charles T, Fleming, with the appellants, trustees, and to authorize them to sell at public sale all the lands so devised as aforesaid, in such parcels or divisions as would secure the highest price therefor, and to make return of their proceedings in the premises to the Court of Chancery for confirmation, and to provide for the payment of the money arising from the sales into Court and its investment, and for the application of the income accruing from the investment, to the charitable object pointed out in the will and codicils, by the Chancellor, according to the practice in Chancery in England, &c. But Fleming, the trustee, refused to serve as a trustee under the act of the Legislature, and filed his petition in the Court of Chancery to enjoin and restrain the other trustees, the appellants, from proceeding under it.
    The causes of appeal assigned were: First. That the appellants, together with the said Charles T. Fleming, were proceeding to sell the- said real estate under and by virtue of the said act of the Legislature, and that the Chancellor erred in enjoining and restraining them from making said sale. Second. That the Chancellor issued the said injunction on the ground that the said act was unconstitutional and void, whereas the said act was good and valid. Third. That the Chancellor issued the said injunction on the ground that the Legislature possessed no authority to pass such an act, and that the said act was consequently null and void; whereas the Legislature had full authority to pass the said act, and the same was obligatory and binding on all the people of the State. Fourth. That no citizen of the State, or of the county, except the Chancellor, objected to the said act, or to the sale to be made under it; but the petition for the injunction preferred by the said Charles T. Fleming, trustee as aforesaid, was so preferred by the order and direction of the Chancellor, and that he erred in requiring the said trustee to initiate the said proceeding for injunction by his own order, but he should have waited until some one interested in said lands and premises, or the rents and profits thereof, had brought the case before him, if any such could be found to do it. Fifth'. That the Chancellor ought to have dismissed the said petition, and consequently erred in granting the said injunction.
    
      D. M. Bates, for the appellants:
    The first question in this case which presents itself is this: Supposing the Legislature to have transcended its power and authority in enacting such a law as this, was the Chancellor warranted, at this stage of the matter, in interposing with his extraordinary power of injunction, before the trustees or commissioners had proceeded to do anything under the law ? But should he not have left the question of its constitutional validity to come up on the return of their proceedings under it, into his court, when the whole matter would have been judicially before him, and this question, with any others which he, or any one else might see proper to raise, and when he and the public might at least have had the satisfaction of discovering whether the truth of the preamble and the wisdom of the act had been vindicated by the result of the sale, and whether this devise and the noble charity to which it is dedicated, now utterly barren, worthless and unprofitable for that purpose, as it lies, was not in fact of great intrinsic value, and a munificent donation for the object designed, if it could only be converted into a personal and productive fund ? That such would have been the result no one who has the slightest knowledge of the lands devised can for a moment doubt. They now yield scarcely a dollar of net income in the hands of the trustee, whilst, in the market, if put up and sold, they would readily command from thirty to forty thousand dollars in their present state.
    The act contemplates .and commands two prominent things to be done. First, the sale and conversion of the real estate into money, and secondly, the investment and administration of the fund afterwards by the Chancellor. The injunction pertains to the first object only; for the second could only arise for consideration after the sale, and the money arising from it had been brought into the Court of Chancery for that purpose. As to the first of these objects, I have to say, in the first place, that it was essentially necessary for the purposes of the trust itself. If the Court could look into the history of this trust as developed in the Court of Chancery, it would be astonished to discover that a fund so valuable in itself could have been, through the long lapse of years since the death of Mr. Potter, so utterly barren and unproductive. And this fact alone urgently and imperatively required, as a matter of good faith and pious regard for 'the design of the testator, and of justice to the beneficiaries of his benevolence and charity, that something should be done, if possible, to remedy this long-existing evil. If the Legislature had constitutional power to act in the matter, it was the sole and exclusive judge of the necessity and propriety of its action in the premises. Under the devises in the will and codicils there is no power conferred on any one to sell the real estate devised to the trust, or on any body, legislative or judicial. The trustees appointed in the will are trustees and holders of the legal estate, with a naked power to rent, and had no power over, and had nothing to do with the administration of the fund itself. They therefore had no power to sell, even if it should be considered that the power to administer the fund includes the power to sell it, which is another question. Neither had the Court of Chancery any power or authority to direct the sale of this real estate. The general act of the Legislature, Dig. of 1829, p. 118, confers no such power on the Court of Chancery in this case. By the act of 1793, Del. Laws, vol. 2, 1055, the general power of the Court of Chancery in England, was conferred upon the Court of Chancery in this State, to manage and control the estates of idiots and lunatics ; and yet the Chancellor in this State, from that day to this, has never directed the real estate of an idiot or lunatic to be sold and converted into money. And if the power to direct the sale of this real estate was not in the Court of Chancery, it.is quite unnecessary to add" that it could not be in any other court or judicial body in this . State.
    I need not say that the fund, as it now lies, is a public nuisance and a continual source of petty plunder and spoliation by many who claim to be poor white citizens of Kent County, and to be taking only what was devised to them by the testator, and of perpetual vexation and annoyance to the trustee who has the care of it. Under these circumstances I then say the power to sell and convert the fund into money, so as to effect the beneficial objects of the devise and trust, must ex necessitate, reside somewhere, and that it vests in the Legislature. Whenever the beneficiaries of the trust are incapable, from infancy, idiocy, or otherwise, of consenting to the sale and conversion of real into personal estate, the power to sell it is in the Legislature; and this has always been done from the foundation of the government, without question, I believe. The only true and reliable exposition of this power is to be found, not so much in treatises and authorities, as in the action and practice of the government on the subject; and this is called the remedial, and not strictly the legislative power of the government. It is a power which necessity requires to be exercised for the benefit and welfare of the’ parties concerned, and has frequently been exercised by the Legislature of this State. Of this character are the acts which authorize the Orphans’ Court and "the Court of Chancery to order the sale of real estate and its conversion into money, to effect partition among the parties entitled to it; and the principle on which it rests, as I have before remarked, is this: it must reside somewhere and in some body possessing higher and more ample powers of discretion than courts of justice, and must therefore vest in the Legislature. Clark v. Van Surlay, 15 Wend. 436; S. C. 20 Wend. 365. The power is possessed by the sovereign as parens patriae, and is not judicial, but tutelary and parental in its character. The power must reside •somewhere, and is in the Legislature and may be exercised in a special ease as well as generally. Estep v. Hutchinson, 14 Serg. & Rawle, 435; Rice v. Parkman, 16 Mass. 326; Davidson v. Johonnet, 7 Metc. 388, 392. It is not a judicial power; because it is not exercised between parties in conflicts involving any question of right, or redress between them, but is parental and tutorial in its nature; the object of it being merely to convert real into personal property for the beneficial purposes of all the persons interested, and may be exercised in a special case by way of a private act, even though there be at the same time a public act of a general character on the subject. Watkins v. Holeman, 16 Peters, 51. And if this power exists anywhere, this is certainly a case in which it is indispensably necessary that it should be exercised.
    I am aware that it will be objected, on the other side, that the power resides in the Court of Chancery, in this State, if it exists anywhere, and not in the Legislature.
    I shall now proceed to consider the question, does the power to administer the fund of a public charity exist in the Court of Chancery in this State? But let me first inquire, what constitutes a public charity? I answer, the uncertainty of the beneficiaries and the permanency of the fund, constitute the two prominent characteristics of such a charity. The power originally inheres in the donor, as a visitorial power; but formerly it was more frequently vested in trustees appointed by him;' now, however, it is more frequently vested in a corporation. In the first, it.is incident to the right of property; but when the superintendence is vested in the latter, that is to say, in trustees, or a corporation, the power is' delegated to them; and when it is not vested in trustees or a corporation, or any other person or body appointed by him, as it is not a judicial, but a remedial power in its nature, it devolves upon the sovereign authority of the State, as the parens patriae and general guardian of the public interests. 2 Story Eq., secs. 1191, 1155, 1160; 2 Fonb. Eq. 209, in note.
    
    The testator died in 1843, and from that time up to the time of the passage of this act in 1851, the fund remained wholly ineffectual. Eeither the Orphans’ Court, the Levy Court, nor the Court of Chancery, had ever undertaken to administer it in any way whatever. The power being a remedial and not a judicial power, where there is no person to administer the charity, the Legislature is the only body to administer it. Where there are litigant parties in regard to it, and the administration of the fund is thus brought before the Court, it is then a judicial question, and a judicial power to be exercised by the Court in determining such a question concerning the administration of it. But when there is no question of litigation involved between parties, the power to administer the charity is in the Legislature. In England, the power to administer a charity does not inhere in the Court of Chancery, as a judicial power, or as an ordinary subject of equity jurisdiction, but it is a prerogative power of the Crown as the farms fairies, exercised by.the Chancellor as the keeper of the king’s conscience, and as his representative for such purposes; and such a power, it has been decided, is not vested in the United States by the Federal Constitution, under the first section "of the,third article, as a part of the judicial power of the United States. Fontaine v. Ravanelle, 17 How. 369, 392. But admitting the Court of Chancery in this State has this power, yet that does not include the power to convert the fund from realty into personalty. The will directs that the real estate shall not be sold, but shall be rented, and the rents and profits are to be applied to the purposes of the charity, and the rents and profits, and not the land itself, are, therefore, the subjects of the administration of the charity. It will not do to say that, in some cases, the trustee or the Court of Chancery may sell the land itself; for that cannot be done when the land itself is not the subject of the administration of the trust or charity, but only the rents and profits are so, unless the power to sell the land is granted to the trustee, either in express terms or by necessary implication in the devise, which is not the case here, because the will expressly provides that the land shall be rented and not sold. Attorney-
      
      General v. Buller, 4 Eng. Ch. Rep. 408. The Court of Chancery has the judicial power of sale in execution of its own decrees; but where there is no controversy inter partes, the Court has no remedial power of sale for the purposes of the trust merely. 16 Mass. 326. And the Court of Chancery in this State has no such power, and it has never decreed the sale of the real estate of any one for the mere benefit of the party interested, and no case can be produced in which it has been done. And it ha's never decreed the sale of real estate for remedial purposes merely. Until the year 1837, the sole power of selling the real estate of minors for their benefit was exercised by the Legislature; but in that year the general act was passed, conferring the remedial power upon the Orphans’ Court to order the sale of the real estate of such persons for their benefit; prior to which time, neither that court, nor any other court in this State, ever pretended to exercise that remedial power.
    
      Comegys, for the appellee:
    The only question involved in this case is'this: had the Legislature the power to pass the act to authorize the sale of the land devised to the purposes of this trust ? In the former case decided in this Court on this will, one of the questions presented was, whether it was in the power of the testator to devise these lands in perpetuity for the purposes of this charity? and after an able and elaborate argument, it was held and decided by the Court that he had that power. Having devised those lands, then, to this purpose in perpetuity, and having, as this Court has decided, the power so to devise them, who has the power to destroy this perpetuity and to defeat and annul his will in regard to it? Has the Legislature any such power? I deny it.
    This is not a public charity, as has been contended on the other side. As to what will constitute a public charity, I will refer the Court to 2 Story’s Eq., secs. 1190, 1191, 1192. When the devise is to a charity generally, without the appointment of trustees to administer it, then the king, as the parens patriae, and the Chancellor as his agent, will assume the administration of it, as a public charity; but when there are trustees appointed to administer it, it is not a public charity, for they alone are to administer it, and the sovereign power of the state, as the parens patriae, has nothing to do with it, and all the Chancellor can do is to see that the trustees administer it faithfully, by virtue of his general jurisdiction over the subject-matter, as a trust merely; and this is what constitutes the true distinction between a public and a private charity. But this asserted power of the Legislature must be referred to some principle. Here is a valid devise to a charity, trustees appointed, and the mode specified in which it is to be administered ; and if the Legislature has authority to lay its hand on the land dedicated to this purpose, and on the estate vested under the will in the trustees, and to defeat and destroy the will and to sell and alienate the estate to another, free and discharged forever from the trust, I should like to see a case produced or cited to sanction and sustain it. Wben there is a person clothed with the legal title and capable of administering the charity, the doctrine of parens patriae has no application to the case; for the sovereign has no parental authority over it.
    It is not necessary for me to show that the power to order the sale and conversion of the real fund into personalty, is in the Court of Chancery. Until recently, I was inclined to the opinion that this might be done by the Chancellor, but I am now well convinced that this cannot be done; and were the case in England, it could not be done, with all the theoretical and boasted omnipotence of Parliament, even by an act of legislation there. Attorney-General v. Buller, 4 Eng. Ch. Rep. 408.
    Much has been said about the past and present unproductive quality or character-of this fund. But as soon as this case is decided, and the long-continued litigation over this will is terminated, I have no doubt a plan will be adopted to render this real fund more productive than it would be if sold and the proceeds were invested in personal securities paying six per cent. The Court is too familiar with the history of this unfortunate will, and the long litigation and numerous lawsuits which have arisen in regard to it, to render it necessary for me to do more than simply to allude to them, in order to show why this plan has thus been delayed and postponed, and why the fund has been comparatively barren and unproductive up to the present time. But a better and brighter prospect for the future is now dawning upon it, and as this is likely to be the last of the long series of suits and controversies which have grown out of it, I think I can confidently assume that the time is near at hand, when the results of it will be quite different, and when it will annually become more and more valuable and productive than even the most sanguine has ever anticipated from it.
    But to return to the point from which I have digressed; here the machinery is prepared and appointed in the will for the distribution of the benefits of the charity among those who are to be the recipients of it, and there is therefore no ground for the parental relation of the sovereigns in regard to it. The power of the Court of Chancery over the subject, so as to assist in the execution of the purposes of the charity, is derived from no such relation, but is a part of its original, inherent and equitable jurisdiction over trusts, as such; and courts of chancery have always regarded • charities as peculiarly sacred, because they are voluntarily made by good men for benevolent objects and for no selfish purpose. And as no case has been or can be produced, in which this or any other State has ever ordered the sale of real estate devised to charitable objects, by a valid and sufficient will, I cannot but feel confident that this tribunal will sustain and affirm the interlocutory decree or order of the court below in the premises.
    
      Mr. Bates, in reply:
    I am now apprised of the precise ground on which the validity of this act of the Legislature is denied, and I must say that I am surprised that the ground is now taken, that there is no power anywhere to convert this real estate into a personal fund for the purposes of the charity, and that these lands are inexorably consigned to utter and perpetual unproductiveness. The ground, nevertheless, is now taken that the testamentary power of the testator is supreme over the subject, and superior to the sovereign power of the government, .and to the remedial power of the Legislature for the benefit of thé charity, if in its opinion the devise has become inadequate to the purposes of it, and an exigency should arise when the interposition of its remedial authority should become necessary to effectuate the objects of the testator. But the eases cited in my opening clearly establish the principle that the Legislature possesses this power. And where is the danger to be apprehended from the exercise of it ? If it has never been done before in this State, it is because no case has before arisen to require it.
    What constitutes a public or private charity, is immaterial in regard. to this question. But I cannot agree in the definition and distinction stated on the other side. The question does not depend upon the fact, whether the Chancellor is to assume the administration of the charity, or trustees are appointed for that purpose; but rather upon the number of persons to be benefited by it. A private charity, strictly speaking, is treated and regarded in England as a trust merely.
   By the Court:

The decree of the Chancellor was unanimously affirmed;' the Court holding that inasmuch as it had already been decided in the Court of Errors and Appeals that the devise in trust of the real estate in question by the testator to be rented and not sold, or in perpetuity for the purposes of the charity mentioned, was a valid devise, it was not in the power of the Legislature to authorize and direct the sale and conversion of it into personalty, even for the purposes of the trust; because it was such a devise as the testator had power to make of his real estate in perpetuity, for the purpose stated, it being a devise in trust to a charity, which the Legislature had not the power to repeal or modify, or to divest the title and estate given by it; and because it would be in direct contravention of the will of the' testator, which in this respect, had been held by this Court, after solemn argument, to be valid and binding, and who had expressly directed in the devisé in question that the land should not be sold, but should be rented, and the rents and profits arising from it should be applied to the objects of the charity. The act of the Legislature directing the sale and conversion of the real estate thus devised, into personal property or money, although conceived in a friendly spirit towards-the object of the trust and charity, and was enacted with the design to render it more productive and effectual for the purposes contemplated by the testator, was therefore an act which the Legislature had no power over the subject-matter to pass, and was consequently inoperative and void, and conferred no power on the commissioners or trustees named in it, the appellants, to sell or dispose of the real estate in any manner whatever.  