Edward W. Cooch, Jr., Wilmington, for plaintiff.
Albert W. James (of Hering, Morris, James & Hitchens), Wilmington, for defendants.
SOUTHERLAND, Chief Justice, TUNNELL, Justice, and HERRMANN, Judge, sitting.
The question certified concerns the power of Trustees of the New Castle Common, a corporation administering a charitable trust, to sell and convey certain land constituting a part of the corpus of the trust. The sole parties to the cause below are the corporation and the persons that have contracted to buy the land.
It is the general rule that in any suit involving the existence or administration of a charitable trust the Attorney General is usually a necessary party.
In Story's Equity Pleadings, Sec. 222, it is said:
'Hitherto we have spoken of cases, where private persons only are interested in the subject-matter of the suit. But the same principle is applicable to cases [33 Del.Ch. 197] where the Government itself is a party in interest. In all such cases, it is essential, that the Attorney-General, who is the proper public officer of the Government, should be made a party, either as plaintiff, or as defendant, to protect and assert the interests of the public. Hence it is, that in cases of public charities the Court always requires the Attorney-General to be made a party to the suit; because the Crown or Government, as parens patriae, superintends the administration of all charities, and must, in cases of this sort, act by its proper officer, who is the Attorney-General.'
In Volume 1 Daniell's Ch. Pl. and Pr., p. 137, it is said:
'Thus, the Attorney-General is a necessary party to all suits where the subject-matter is, either wholly or in part, money appropriated for general charitable purposes; because the Queen, as parens patriae, is supposed to superintend the administration of all charities, and acts in this behalf by her Attorney-General.'
In Jackson v. Phillips, 96 Mass. 539, at pages 579, 580, Judge Gray, after referring to the duty to maintain the rights of the public as a duty vested in the commonwealth, exercised through the Attorney General, said:
'It is upon this ground that, in a suit instituted by the trustees of a charity to obtain the instructions of the court, the attorney general should be made a party
In Orford Union Congregational Society v. West Congregational Society, 55 N.H. 463, the court said:
'The case of the Attorney-General v. [Town of] Dublin,38 N.H. 459, was originally commenced in the name of Abbot et al. as plaintiffs. A demurrer having been filed on the ground that the attorney-general should have been made a party, the bill was amended. The same objection, if taken here, would probably have been sustained, and the attorney-general must have been made a party, either plaintiff or defendant. It is obvious that the subject-matter of this suit being a public charity, no ...