executor or executors shall not be obliged to give security; in all or either of the aforesaid cases, no security shall be demanded of such executor or executors, nor of any person or persons, who shall by any testator be appointed executor or executors in trust, durante minori ætate of his children, where he shall by his will have made his said children executors, and ordered that his estate shall be preserved in kind, and the profits thereof redound to the benefit of such children at their coming of age; any thing in this act, to the contrary thereof, in any wise, notwithstanding.

abridged.

XXI. And provided likewise, That nothing herein Power of contained, shall be construed to abridge or restrain the ex'rs before powers of executors over their testators estates, before, probat not or until probat of the will, or commission of administration, with the will annexed, is obtained, as fully and amply, as if this act had never been made.

Wills to re

XXII. And that the wills of persons deceased may be the better preserved, Be it enacted, That all original main among wills shall remain in the clerk's office amongst the re- records, cords of the several respective counties, where they shall be proved, whereto any person, whose occasions shall so require, may have recourse, as to the other records: except for the time it shall be removed by direction of any superior court. And that unto every probat, granted upon certificate from any court, there shall be annexed a true copy of the will whereupon such probat shall be granted.

When gene

ral courts

XXIII. Provided always, and it is hereby declared to where provbe the true intent and meaning hereof, That in all cases ed. testamentary, where the decedent shall have left estate, real or personal, of the value of fifty pounds ster- may grant ling, or upwards, in divers counties within this colony, probats. it shall and may be lawful for the general court of this dominion, upon motion made to them by the executor or executors of such person dying testate, or by the person or persons who hath the right of administration of the estate of any person dying intestate, or whose exeecutors shall refuse to take upon them the trust, to take the proof of wills, and to hear and determine the right of administration, and thereupon to grant certificate for obtaining a probat or administration, or adminis tration, with the will annexed, as the case is. And that in all cases where wills are exhibited to be proved in the general court, the court shall assign a certain day

and adminis

to issue.

of the next succeeding general court, for proving the same; and shall direct summons to the heir or heirs at law, in the same manner as is directed for the county courts. And wherever proclamation is by this act made requisite, for 'summoning any heir or heirs, the general court shall cause such proclamation to be publicly affixed in their courthouse; and shall also cause proclamation to be made in the county where the testator died, after the same manner as is directed upon proving the will in the county court.

XXIV. That all probats of wills, and commissions Howprobats, of administration, granted upon certificate obtained in trations from the general court, shall issue under the seal of the generalcourt colony, and shall be signed by the governor or commander in chief of this dominion, for the time being, or by the president of the council, for the time being, or by such member or members of the said court, as shall be commissionated for that purpose, by the governor, or president respectively. And that the forms of all oaths and bonds, required by this act of executors or administrators for the due discharge of their trust, shall be the same as is directed for the county courts, mutatis mutandis.

liable for ta

XXV. Provided always, That where the general court When court shall grant certificate for obtaining the administration king insuffi- of any estate, and shall fail to take sufficient security eient securi- for the same; in that case, the members of the said

ty.

court, granting such certificate, and every of them, shall be liable to pay such loss and damage, as shall accrue by reason of such failure, in the same manner as the justices of the county court in the like case should have been.

XXVI. And forasmuch, as by this act, it is before directed, that all decedents estates shall be appraised in money; and for that it often happens, that several debts are contracted in this colony for certain quantities of tobacco, or other commodities in specie, which may sometimes be of greater or lesser value than ordinary, which may occasion disputes between executors or administrators, and the creditors of their testators, or intestates, concerning the payment of such debts: For prevention whereof,

XXVII. Be it enacted by the authority aforesaid, That Debts con- if a debt, contracted by any person deceased, in tobacco, corn, wheat, beef, pork, or other kind of commodity,

tracted by

testator or

commodities

shall be recovered by suit at law against his or her tate, payable exécutor or executors, administrator or administra- in specific tors, and there shall not, at the time of such re- when to be covery, be so much of the commodities so con- converted tracted for, belonging to such decedent's estate, in into money the hands of his or her executor or executors, ad- by the court. ministrator or administrators, or any of them; then, upon the motion of any such executor or administrator, against whom recovery shall be had, as aforesaid, and oath made, that there is not a sufficient quantity of the commodities so contracted for, belonging to the decedent's estate in the hands of any of the executors or administrators, to satisfy the debt so to be recovered in specie, the court, before whom such motion and oath shall be made, shall value the commodity contracted for, according to the best of their judgment, in money; and accordingly shall give judgment for the same, to be paid in money, (and not in specie,) out of the estate of the person deceased; any law, usage or custom, or any obligation, contract, or other matter or thing whatsoever, to the contrary thereof, in any wise, notwithstanding.

to be return

XXVIII. And be it further enacted, That the clerk Lists of adof every county court, shall every half year, viz. in ministrations April and October, return to the secretary's office a with names list of all certificates for obtaining probats or adminis- of ex'rs, &c. trations granted in their respective counties, contain-ed half yearing the names of the testators or intestates, the execu- ly to secrets tors or administrators, and the names of the securities; ry's office. which lists the secretary of this colony is hereby required to cause to be recorded alphabetically in his office, in books kept for that purpose.

XXIX. And be it further enacted, That all and eve- Repealing ry other act and acts, and every clause and article clause. thereof heretofore made, for so much thereof, as relates to any matter or thing whatsoever within the purview of this act, is and are hereby repealed and made void, to all intents and purposes, as if the same had never been made.

D-Vol. 4.

[From edit.

1733,p.. 9.]

CHAP. III.

An Act for building a Prison for Debtors to be committed by the General Court.

Preamble:, I. W when defendants are brought in custody from WHEREAS it is found very that

THEREAS it is found very inconvenient, that

Land to be

Williams

burg, and a prison built thereon.

several remote and distant parts of this colony to the general court, by writs issued out of the office of the said court, for want of bail for their appearance; and at the return of such writs or appearing, cannot give special bail to such actions on which they are arrested, or after judgment obtained against them in custody, on which they ought immediately to be in execution, there is at present no prison or place to which such defendants can properly be committed.

II. Be it therefore enacted, by the Lieutenant Goverpurchased in nor, Council and Burgesses, of this present General Assembly, and by the authority of the same, That as soon as conveniently may be, after the passing of this act, one lot or half acre of land lying in the city of Williamsburg, and in the county of York, as near as may be to the place where the colony goal for criminals now stands, be set apart and appropriated for a place whereon a prison shall be built; and that so soon as conveniently may be after the time aforesaid, there shall be made and erected on the said lot, a good substantial building of brick, well and sufficiently strengthened and secured with timber and plank, iron work,and other materials, so as to make the said building strong, and sufficient for the safe keeping of prisoners, out of the monies which shall be levied and raised by an act of assembly of this colony, intituled, An act for laying a duty on liquors and slaves, after the monies already appropriated out of the said duty are levied and paid. ill. And be it further enacted, by the authority aforecontract for said, That the honourable the lieutenant-governor, or building, not the governor, or commander in chief of this colony and exceeding dominion, for the time being, is impowered and desired 2001. to contract and agree with any person or persons, for the erecting, building and finishing the prison aforesaid; and to issue his warrant upon the treasurer of this dominion, for the time being, for any sum or sums of money which may be wanted, for the building and finishing the said prison, out of the monies which shall

Governor to

be raised for the said use, not exceeding two hundred pounds.

IV. And be it further enacted, by the authority afore- General said, That the said prison so erected and built, shall court prison for debtors. from thenceforth be called, The General Court Prison for Debtors; of which said prison, the judges of the general court, or the greater part of them, are hereby authorized and impowered to lay out and appoint rules.

V. And be it further enacted, That the sheriff of the Sheriff of county of York, for the time being, shall be and is here- York to be by appointed to be keeper of the said prison, and shall keeper, &c. constantly attend the said court; and is hereby impowered and required to receive and take into his custody all and every person and persons which shall by the said court be committed to him on mean process, or in execution in any civil cause or action, or for any contempt of the said court; and such person and persons in the said prison to detain and keep, until he, she, and they shall be thence lawfully discharged; and to take and receive all such prisoner and prisoners so committed to his custody, such fee and fees as are settled and allowable by law.

paid.

VI. And be it further enacted, by the authority afore. His salary said, That there shall be satisfied and paid to the said and how sheriff of York county, for his care and pains in keeping the said prison, and looking after the prisoners committed to his custody, and for his attendance on the general court, such allowances, disbursements, and accounts, as shall be thought reasonable by the general assembly of this dominion.

insolvents

for diet, &c.

VII. And be it further enacted, by the authority afore- Allowance to said, That if any prisoner who shall be committed to the custody of the said sheriff, or keeper of the said general court prison for debtors, shall be so indigent and poor, that he or she be not of ability to maintain and subsist him or herself in the said prison; then, and in such case, there shall be allowed and paid to such sheriff, as keeper of the said prison, for the relief and subsistence of such poor prisoner, the sum of six pence by the day, for every day such poor prisoner shall remain and be in his custody; to be levied and paid by the general assembly of this dominion.