Terry, Judge,
delivering the opinion of the majority of the court:
It is contended by certain of our associates that the court below was without jurisdiction because there exists a complete and adequate remedy at law. In support of their reasoning they rely upon the existence of two statutes: First—Section 4367, Revised Code of Delaware 1935— which in part is as follows:
“Provided, that the Chancellor shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other Court, or jurisdiction, of this State; but that where matters, determinable at common law, shall be brought before him in equity, he shall remit the parties to the common law * * */'
Second—Chapter 143, Volume 42, Laws of Delaware —which in part is as follows:
“The jurisdiction of the Orphans’ Court shall extend to and embrace the distribution of the assets and surplusage of the estates of decedents among the persons entitled thereto in all cases where such jurisdiction is invoked as hereinafter provided * *
An administrator or any person claiming to have an interest in the estate to be distributed may, at any time after any account has been filed, apply to the Orphans’ Court for a decree of distribution of the estate among the parties entitled thereto. Then follows the required contents of the petition and certain action to be taken by the court and provisions for a hearing and the taking of evidence. The statute then proceeds—
“If, upon the said hearing, the Court shall be satisfied that the estate or any part thereof may then be distributed, the Court shall make a decree determining the distribution of the estate then available for distribution to the person or persons who are by law entitled to the same * *
It is contended that by reason of the enactment of Chapter 143, Volume 42, conferring a complete and adequate remedy at law, the quoted portion of Section 4367 limited [503]*503the Court of Chancery from exercising any power that it might have had as of the date of the enactment of said Chapter 143, aforesaid, in entering decrees of distribution.
Upon the immigration of our ancestors to this country from England they adopted as a safe rule of conduct the common law of England, which they considered to be their birthright. They cherished it, and for them it represented, so to speak, a charter of liberty. The common law, thus adopted, when defined in its broad and comprehensive sense represented a system of jurisprudence of remedial justice as administered in England by the courts of equity as well as those courts that administered the common law itself. The colonists considered the rights of a free people were to be construed not in a narrow technical sense but rather in a broad and comprehensive sense, and in this sense equity is as much common law as is that law which is administered in tribunals other than those of equitable jurisdiction.
Judge Woolley, in Paragraph 56 of Volume 1, in his work on Delaware Practice states,
“An examination of the early history of the colonial judiciary of Delaware discloses that equitable jurisdiction was exercised by the same courts that had jurisdiction of matters of law.”
■ And he further states,
“It may safely be affirmed that the whole body of equity principles both of right and remedy was brought hither by our ancestors, together with the common law, on their immigration from England as part of their heritage of liberty.”
And further,
“Hence, the Court of Chancery of the State of Delaware inherited its equity jurisdiction from the English Courts; and in its organization and proceedings, especially in matters of pleading, practice and evidence, the Court of Chancery of the State of Delaware, has adhered more closely to the English Court of Chancery and to English precedents than those of any of her sister States.”
[504]*504Therefore, it appears that the equity jurisprudence from the earliest date in this State was founded upon, coextensive with, and in most respects, conformable to that of England.
It must be said that from the close of the reign of Charles II the court of equity in England had jurisdiction to superintend the administration of estates, and to decree a distribution of the residue after payment of all debts and charges among the parties entitled either as legatees or distributees. 1 Storey, (Tenth Edition) (Redfields), 543; Walker v. Caldwell, 8 Del. Ch. 91, 67 A. 1085. So, it was under the jurisdiction as established by our colonial ancestors that the jurisdiction of our earliest courts inherited as a right or power that principle which gave to the judges thereof jurisdiction to enter decrees of distribution.
Now this principle as established was indelibly written into the Act of 1726-1736, wherein the first Court of Chancery was created in this State. Under Section 21 of said Act the following is recited:
“And be it further enacted by the authority aforesaid, that there shall be a Court of Equity held by the Justices of the said respective County Courts of Common Pleas four times a year at the respective places, and near the said times as the said Courts of Common Pleas are held in every county of this government; and that the Prothonotary of the Common Pleas shall be the Register of the said Courts of Equity in every county, which said justices, or any three of them, within the limits of their comfnissions and authorities to them appointed as is aforesaid, shall have full power, and are hereby impowered and authorized, to hear and decree all such matters and causes of equity as shall come before them in the said courts, where the proceedings shall be as heretofore by bill and answer, with such other pleadings as are necessary in Chancery Courts, and proper in these parts, with power also for the said Justices of the respective Courts of Equity, to issue further all manner of Subpoena’s,- and all other process as may be needful to oblige and force defendants to answer suits there, as also to award commissions for taking answers and examining witnesses, and to grant injunctions for staying suits in law, and stopping wastes, as there may be occasion, observing, as near as may be, the rules and practice of the High Court of Chancery in Great. [505]*505Britain, with powers to make orders and award all manner of process, and do all other things necessary for bringing causes to hearing, and to force obedience to their decrees in equity, which may be by imprisonment of bodies, or sequestration by lands, and admit bills of reviver, as the case may require.”
And, by Section 25, of said Act the following appears:
“Provided also, that nothing herein contained shall give the said Justices any power or authority to hear, decree or determine in equity, any matter, cause or thing, wherein sufficient remedy may be had in any other court or before any other magistrate or judicature in this government, either by the rules of the common law, or according to the tenor and direction of the laws of this government, but that when matters determinable at common law shall be brought before them in equity, they shall refer or remit the parties to the common law * * *.”
In passing it will be noted that the jurisdiction conferred under the Act of 1726-1736 was coextensive with the jurisdiction of the High Court of Chancery of Great Britain, subject only to the construction and effect to be given the provisions of Section 25 of said Act.
Our" first Constitution was adopted in 1776. Under Article 12 thereof Courts of Common Pleas and Orphans Courts were created, and by Article 13 thereof the Justices of the Courts of Common Pleas were empowered to hold inferior Courts of Chancery as heretofore held until the Legislature should otherwise direct.
Our second constitution, adopted in 1792, under Article VI, Section 14,. recited in part as follows:
“The equity jurisdiction heretofore exercised by the Judges of the Court of Common Pleas shall be separated from the common-law jurisdiction, and vested in Chancellor, who shall hold Courts of Chancery in the several counties of this State.”
Our third constitution was adopted in 1831, and under Article VI, Section 13 thereof, the following is recited:
* * * “The chancellor shall exercise all the powers which any law of this State vests in the chancellor besides the general powers of the Court of Chancery * *
[506]*506Our fourth and present constitution was adopted in 1897, and under Article IV, Section 10 thereof, it is provided :
“The Chancellor shall hold a Court of Chancery. This court shall have all the jurisdiction and powers vested by the laws of this State in the Court of Chancery.”
Now the substance of Section 25 of the Act of 1726-1736, aforesaid, at present appears in the Revised Code of 1935 under Paragraph 4367 thereof, and it will be admitted arguendo that this statute has remained on the statute books since approximately 1732, the date of the enactment of the Act of 1726-1736.
In order to determine what was written into the constitution of 1776 concerning equitable jurisdiction, we must decide upon the proper construction to be given to Sections 21 and 25, respectively, of the Act of 1726-1736. There can be no difficulty in construing Section 21, as under said section all of the jurisdiction theretofore exercised by the High Court of Chancery of Great Britain was by said section conferred. It is by the use of the language employed under Section 25, now Section 4367 of the Code of 1935, which forms the basis of the present controversy, and the question presented is: Did Section 25 of said Act limit the exercise of equitable jurisdiction in the event the Legislature conferred a similar jurisdiction at law and provided a remedy complete in all respects?
After a careful study of the statute law, together with certain reported cases, it is our conclusion (1) that the Legislature in enacting Section 25 did nothing more than declare the existence of an equitable principle, which in fact existed without its enactment; and (2) that no positive restriction or limitation of the exercise of equitable jurisdiction resulted therefrom.
Chancellor Saulsbury in the case of Fox v. Wharton, 5 Del. Ch. 200, in construing Section 25 of said Act stated:
[507]*507“Now this supposed limitation amounts substantially to no limitation at all, for the reason that where there is a complete remedy at law courts of equity do not assume to exercise jurisdiction. This is a fundamental principle of equity jurisprudence, and it is this principle which is incorporated in § 25 * * *. A cause in which there is a complete remedy at law is not a matter and cause of equity at all. The section cited (Section 25), therefore, is nothing but a legislative declaration of what would have existed without it. * * *”
Likewise, Chancellor Curtis in the case of Kahn v. Orenstein, 12 Del. Ch. 344, 114 A. 165, 167, stated:
“Statutes such as * * * denying to the Chancellor power to determine any matter wherein sufficient remedy may be had at law is declaratory of a limitation established from ancient times irrespective of statutes.” 1 Pomeroy Equity Jurisprudence, Paragraphs 295 and 344.
See also the observations made by Chancellor Nicholson in the case of Walker v. Caldwell, 8 Del. Ch. 91, 67 A. 1085.
In stating our conclusions we are not unmindful that Chancellors Johns, Sr., Johns, Jr., and Nicholson have indicated otherwise by inferring that Section 25 operated as a direct and positive limitation on the equity jurisdiction. Beeson v. Elliott, 1 Del. Ch. 368, 386; Jefferson v. Tunnell, 2 Del. Ch. 135; Equitable Guarantee & Trust Co. v. Donohoe, 8 Del. Ch. 422, 45 A. 583.
It is said that the observations made by Chancellor Saulsbury concerning Section 25 were not necessary, for the reason that the case, id., before him concerned matters over which there did not exist a complete and adequate remedy at law. However, the late Chancellor Wolcott in the case of Hollis, Adm’r., v. Kinney, 13 Del. Ch. 366, 120 A. 356, 358, stated:
“In Fox vs. Wharton it was remarked that the legal remedy there under discussion, viz., foreclosure of a mortgage at law, was not adequate or complete. That being so it may be said that the general language of the Chancellor, to the effect that the equity jurisdiction could not be destroyed by such statutory language as appears in our statute, [508]*508was dictum. The dictum, however, appears to have been uttered after careful and deliberate study of the question.”
It is, therefore, quite clear to us that the jurisdiction of the Court of Chancery as written by implication into the Constitution of 1776 is as that set forth under Section 21 of the Act of 1726-1736, and Section 25 thereof represents nothing more than a legislative direction or declaration of what would have existed without it, and did not operate as a restriction or limitation of the exercise of equitable jurisdiction. Therefore, the equitable jurisdiction under the Constitution of 1776 embodied that complete system of equity jurisprudence as administered by the High Court of Chancery of Great Britain and as brought to this country by the colonists and later enacted into the statute of 1726-1736, subject only to the proper application of the ancient rule that equity will not assume to exercise jurisdiction where there exists a complete and adequate remedy at law. Although the Legislature under subsequent constitutions has provided for additional equity jurisdiction, yet the underlying principles as established in the Constitution of 1776 have not been disturbed. The continuation upon our statute books of the substance of Section 25 of the Act of 1726-1736, now appearing under Paragraph 4367 of the present Code, does not alter in any respect our conclusion, as the continuation of a statute containing constitutional provisions is but merely declaratory of the constitutional provision itself and must be construed as such. However, if necessity requires a construction of Paragraph 4367 in the light of equitable jurisdiction aside from the constitution, we say the same in reference thereto that we have heretofore stated regarding Section 25 of the Act of 1726-1736.
Having defined the source of equitable jurisdiction as the same exists in the Court of Chancery of this State, and having determined the proper import to be given Section 25 of the Act of 1726-1736 as of the adoption of our first constitution in 1776, and having defined the jurisdiction [509]*509subsequent thereto, we now look to legislative enactments wherein jurisdiction previously exercised in equity has been conferred upon other tribunals, together with remedies com- ' píete and adequate in all respects.
Our attention is first directed to the statute of 1721, wherein an Orphans’" Court was created. 1 Del. Laws, Chapter XXXI. a. Under the provisions of this Act the Judges of the Orphans’ Court were given full power to exercise the jurisdiction granted to the Orphans’ Court under an Act passed at the same session entitled, “An Act for the Better Settling Intestate Estates,” under which the Orphans’ Court was empowered to call “administrators to account for and touching the goods of any person dying intestate; and upon hearing and due consideration thereof, to order and make just and equal distribution of what remaineth clear, (after all debts, funerals and just expenses of every sort first allowed and deducted) amongst the wife and children, and childrens children (if any such be) or otherwise to the next of kindred to the deceased person * * 1 Del. Laws, Appendix 55.
This law was terminated in 1829 upon the enactment of an Act entitled, “An Act Concerning the Probate of Wills and the Administration of Personal Estates of Deceased Persons.” 7 Del. Laws, 217.
The Act of 1726-1736 was passed' in or about the year 1732, and it will be seen from that time until the termination of the Orphans’ Court statute in 1829 that the statute of 1721 and the provisions as set forth under Section 25 of the Act of 1726-1736 were in effect.
Chancellor Ridgely in 1822 in the case of Patton, Executor of Morgan Jones, v. Zachariah Jones, et al., 3 Del. Cas. Boorstin, 11, assumed jurisdiction wherein the complainant prayed for a construction of the will of Morgan Jones and the entry of a decree of distribution in accordance therewith.
[510]*510No manuscript notes of any case adjudged by the Court of Chancery can be found prior to the year 1814; this being so it cannot with certainty be said that the Court of Chancery did not exercise a concurrent jurisdiction with the Orphans’ Court until 1829 concerning the entry of decrees of distribution in intestate estates. On the other hand, it can be logically said that the jurisdiction of the Court of Chancery was not abrogated by the language employed under the Act of 1721. There is a complete absence of negative words, and we find no intent to make the Orphans’ Court jurisdiction exclusive. We are of the opinion that the Orphans’ Court under the Act of 1721 was given a concurrent jurisdiction with the Court of Chancery concerning the power to enter decrees of distribution in intestate estates.
What, if anything, occurred in 1829 upon the termination of the Orphans’ Court Act of 1721? It seems to us it must be said that the exclusive power to enter decrees of distribution both as to testate and intestate estates was vested in the Court of Chancery and there remained until the enactment of Chapter 184, Volume 38, Laws of Delaware, 1933, which under the provisions thereof provided in part as follows:
“An executor or administrator or any person claiming to have an interest in the estate to be distributed may, at any time after any account has been filed by an executor or administrator, apply for a decree of distribution to the Register of Wills, who shall, if it appears to the Register that the estate or any part thereof may be distributed, make such a decree determining the distribution of the estate then available for distribution to the person or persons who are by law entitled to the same. * * *”
Chapter 184, aforesaid, was repealed in 1939 and Chapter 143, Volume 42, Laws of Delaware was enacted in lieu thereof, which provides in part as follows:
“3867. Sec. 69. Jurisdiction of Orphans Court: Distribution of Estates of Decedents; Procedure For; Notice; Hearing; Decree; Appeal:—The jurisdiction of the Orphans Courts shall extend to and em[511]*511brace the distribution of assets and surplusage of the estates of decedents among the persons entitled thereto in all cases where such jurisdiction is invoked as hereinafter provided.
“An executor or administrator or any person claiming to have an interest in the estate to be distributed may, at any time after any account has been filed by an executor or administrator, apply to the Orphans Court in the county in which letters testamentary or of administration were granted upon the estate to be distributed, by written petition filed in said court by an attorney admitted and licensed to practice therein, for a decree of distribution of the estate among the persons entitled thereto. * * *
“If, upon the said hearing, the Court shall be satisfied that the estate or any part thereof may then be distributed, the Court shall make a decree determining the distribution of the estate then available for distribution to the person or persons who are by law entitled to the same. * * *”
A comparison of the Orphans’ Court Act of 1721 with Chapter 143, id., is interesting. It will be remembered that under the Act of 1721 the jurisdiction given to the Orphans’ Court pertained to intestate estates only, while the jurisdiction given to the Orphans’ Court under Chapter 143 pertains to testate as well as intestate estates, and the said jurisdiction will be invoked upon the application of an executor or administrator or any interested party.
It cannot be said too forcefully that the general powers of the Court of Chancery refers to that complete system of equity as administered by the High Court of Chancery of Great Britain, and a proper interpretation of the constitutions of this State leads to but one conclusion; that is, that the Court of Chancery shall continue to exercise that complete system of equity jurisdiction in all respects until the Legislature of this State shall provide otherwise, as by granting the exercise of a part of that jurisdiction exclusively to some other tribunal.
There exist many statutes at law providing a complete and adequate remedy over matters that prior to the enactments fell within the jurisdiction of equity, and the courts of this State throughout the many decisions have directly [512]*512or by implication at all times recognized a coextensive jurisdiction existing between law and equity commonly referred to as a concurrent jurisdiction. West, et al., v. Evans, 1 Del. Ch. 122; Kirkwood v. Mitchell, 1 Del. Ch. 130; Killen v. Adams, 1 Del. Ch. 184; St. James’ Church v. Walker, 1 Del. Ch. 284; Walker v. Caldwell, 8 Del. Ch. 91, 67 A. 1085; Van Vrankin v. Roberts, 7 Del. Ch. 16, 29 A. 1044; Newbold v. Newbold, 1 Del. Ch. 310. See also 30 C.J.S., Equity, § 21, p. 341.
Now we reach the question as to whether or not the Legislature by the enactment of Chapter 143 aforesaid limited or restricted the court of equity in exercising its jurisdiction to enter a decree of distribution upon a proper application. It is said.that, irrespective of the construction to be placed on Section 25 of the Act of 1726-1736, or the construction of the language as by implication written into the constitutions or the provisions of Paragraph 4367 of the Code of 1935, that the Court of Chancery in the present case would not have had jurisdiction even under the application of the ancient rule, for the reason that when the remedy at law is adequate and complete, jurisdiction in equity will not be exercised and that there could not be a concurrent jurisdiction, because they say the very foundation of concurrent jurisdiction is predicated upon the inadequacy of the remedy at law.
Of course, we concede the general rule to be as stated; that is, “the foundation of concurrent jurisdiction is predicated upon the inadequacy of the legal remedy.” Nevertheless, there are well-recognized exceptions to this rule, and a concurrent jurisdiction will be found to exist in many cases where the legal remedy afforded is adequate and complete in all respects. For example, whenever the statutes conferring the new jurisdiction upon the law courts are permissive only, or whenever they not only do not contain any expressed prohibitory language, but also do not indicate, from all their provisions taken together, any [513]*513clear intent to restrict the equitable jurisdiction, that jurisdiction remains unaffected, and may still be exercised; even though the rights protected and the remedies conferred have by the statutes been made legal, and even though a relief ordinarily sufficient, even amply sufficient and complete, may be obtained through the actions at law. Of course, the effect of the statute creating the legal remedy depends upon the legislative intent, and unless the statute shows a clear and certain intent that the equitable jurisdiction is no longer to be exercised under the matters within the scope of the statute, then the equitable jurisdiction has not been abrogated. 1 Pomeroy, (5th Edition) 260; Sweeny v. Williams, 36 N.J. Eq. 627, affirming Sweeney v. Williams, 36 N.J. Eq. 459; Miller v. United States Casualty Co., 61 N.J. Eq. 110, 47 A. 509.
Pomeroy in his work on equity jurisprudence in Volume 3, (3rd Edition) Paragraph 1153, states:
“One fundamental principle should be constantly kept in mind; it underlies all particular rules, and furnishes the solution for most of the special questions which can arise. In all those states which have adopted the entire system of equity jurisprudence, whatever be the legislation concerning the powers and functions of the probate coui'ts, and whatever be the nature and extent of the subjects committed to their cognizance, the original equitable jurisdiction over administrations does and must still exist, except so far and with respect to such particulars as it has been abrogated by express prohibitory, negative language of the statutes, or by necessary implication from affirmative language conferring exclusive powers upon the probate tribunals. This equitable jurisdiction may be dormant, but, except so far as thus destroyed by statute, it must continue to exist, concurrent with that held by the courts of probate, ready to be exercised whenever occasion may render or require it expedient.”
The jurisdiction conferred under Chapter 143 aforesaid is but a permissive or conditional jurisdiction and in no respects is it exclusive or absolute. No expressed prohibitory language appears, nor are we able to find a clear intent from the language employed to restrict or limit the exercise of equitable jurisdiction. In fact, it will be seen [514]*514that jurisdiction arises only in those cases wherein it is specifically invoked.
We are not unmindful of the growing tendency on the part of courts of other jurisdictions to read into all legislative enactments, conferring new legal remedies over matters theretofore reposed in equity, a legislative intention to make the remedy at law, if. adequate, exclusive. The source of our equity jurisdiction and its development by our able Chancellors forbids us from concurring in such a construction or interpretation of any statute conferring a new legal remedy unless it be clear from the language employed therein that the Legislature intended by said enactment to abrogate the pre-existing equitable jurisdiction.
It is our opinion that a person seeking his remedy in a case such as the present is given by implication the right of election whether to proceed in the Orphans’ Court or the Court of Chancery—both courts having concurrent jurisdiction and the power upon proper application to enter decrees of distribution of assets of decedents’ estates.
The jurisdiction assumed by the court below must be upheld, and a decree will be signed accordingly.