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properly come before the legislative depart-
ment of the Government The adoption of
orders of this character will have the effect,
although I would not object to it merely upon
that ground, to increase the expense of print-
ing the Journal; but there are other reasons
why the entering of such orders, unless per-
tinent to the deliberations of this Convention,
ought to be stopped. It seems to be an order
relating not so much to the matters before
the committees of this Convention as to the
details of legislative action after we shall
have formed a new Constitution. It is a
question whether it is necessary to incorpo-
rate it in the Constitution we are about to
form. I only throw out the suggestion that
unless I can see a strong reason why it should
go upon our Journal, I should object to it.
If the policy is adopted of passing such orders
and entering them upon the Journal, we
shall have a Journal as large as the ordinary
acts of Congress. I merely throw out the
suggestion to the other side. I do not know
from what source the order comes
Mr. MARKEY. I offered that order, for the
purpose, if possible, of correcting what I con-
ceive to be an evil in our part of the State.
In the event of a party dying, and leaving a
will appointing an executor, if that executor
should happen to die before he has settled up
that estate, real or personal, the only way to
dispose of the real estate is that the adminis-
trator upon his personal effects must go into
the Chancery Court and obtain a decree to
sell that property. I want, if possible, to give
to the Orphans' Court the same power in re-
lation to real estate that they possess under
the law in the case of personal estate. I do
not care what committee the order goes to,
if it can be brought before some committee
which will act upon it.
Mr. JONES of Somerset. It merely proposes
to change the jurisdiction of » court and give
it equity jurisdiction. It is merely the ordi-
nary case of the failure of a trust, where the
Court of Equity must appoint trustees. In
the case referred to, the death of au executor,
there is a failure of the execution of a trust,
from the death of the executor before the sale;
and it necessarily goes before the Court of
Equity, as the ordinary and usual remedy.
The proposition is that that jurisdiction be
given to the Orphans' Court, which I pre-
sume is not the practice in this particular
case. The Judiciary Committee have under
consideration the distribution of the judicial
power of the State among the several courts,
'and will no doubt report upon a system in
which the equity powers may possibly be
given to a judge of probate, or a county
judge, and the object of the gentleman from
Frederick (Mr. Markey) may be in that re-
spect answered. It is only one instance, as I
understand it, of the failure of a trust, which
may occur under a deed just as well as under
a will. Wherever the appointment of a trus-
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tee fails, under our system, and there is no
other authority, the Court of Equity has ju-
risdiction to supply it.
Mr. BRISCOE. My suggestion is whether
that would not be a measure more directly
coming under the legislative department of
the Government. Would it not be perfectly
competent for the Legislature to accomplish
this when the courts are organized?
Mr. JONES of Somerset. Unquestionably.
Mr. BRISCOE. We are not here to perform
legislative duty, in the strict acceptation of
the term. Not being a member of the Judi-
ciary Committee it may be impertinent me
to object to this. It is a question for the
chairman of the Judiciary Committee to con-
sider, whether that committee ought to be
burdened with propositions of this character j
and it is for the Convention to say whether
our Journal shall be filled, day by day, with
propositions like this, offered for the consid-
eration of committees or of the Convention.
I know that it is an ordinary courtesy and
rule upon the part of committees, when an
order is submitted to them, to make a report
upon it of some kind or other, and I simply
suggest whether we should burden them with
orders of this kind.
Mr. JONES of Somerset. I think, upon the
views entertained by the gentleman from Cal-
vert (Mr. Briscoe) it is entirely unnecessary
to cumber oar Journal with orders of this
character. It is a mere matter of legislative
control. Yet in the organization of the Ju-
diciary no doubt provision will be made for
the proper distribution of the equity and
common law jurisdiction of the courts.
Mr. SCHLEY. I think the reference is cor-
rect. The organization of the Orphans' Court
will properly form apart of the article on the
Judiciary. Perhaps it may encumber the
Journal of Proceedings to introduce a multi-
plicity of orders from day to day; but all
these orders are suggestive and I think that
every committee will receive suggestions,
from whatever source they emanate, grate-
fully and perhaps with advantage. Thia
order has no doubt some legislative features
in it; but still it involves a question of the
powers and jurisdiction of the Orphans' Court,
and may very properly be considered by the
Committee on the Judiciary; and I am sure
that committee, in so considering, will judge
for themselves whether it be expedient to in-
corporate any legislative action in the Con-
stitution or refer it to the legislative depart-
ment. They may incorporate the principle,
and I hope sincerely that they will Ent I
do not propose to discuss the merits of the
proposition at all, but merely to state why I
shall support the order of inquiry, that I
think it comes properly before the Committee
on the Judiciary.
Mr. BRISCOE. I do not raise any issue at
all upon it, I merely threw out the sugges-
tion that it was such an order as did not
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