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of the decendant, and paid according to the priority of Law and the Surplusage remaining, if any, to be delivered to the next kinsman of the descendant, if he appears or if none prove himself such within one year and six week, Then the Court to give an accompt of the said Surplusage to the Governour. And when the widow or Child Administers the surplusage after debts paid and the funerall Charges according to the quality of the person allowed for, shall be equally divided between the Widow and Children, viz. one third of the personall Estate to the widow and the other two thirds amongst the Children, provided the Eldest Sonne shall have a double portion, and where there are no Sonnes the daughters shall Inherit as Copartners, and if any of the Children shall happen to dye before it come to age his portion shall be divided amongst the surviving Children.
“If any person shall renounce his Executorship or that none of the friends or kindred of the deceased party that shall die intestate shall seeke for Administration of such persons Estate, then the Constable of the Town where any such person shall die, shall give notice thereof to the next Court of Sessions; that so the Court may take order therein, as they shall think meet, who shall also allow such Constable due recompence for his pains But if the Constable shall fail therein, he shall forfeit forty Shillings to the publigue Treasury.
"That the Clarke of the sessions when he carries the Probates or Commissions of Administration to be signed do then also Certify unto the recorders Office at New York, the name of the testator or the party deceased the Executors or Administrators and their Security, the County and Parrish where they dwelt And the Court wherein the Administration is granted to the end that strangers and other Creditors invested in the Estate may be the better Enabled to find out the Records in which the accompts of the estate is entered and be inforrned how they may come to their just dues."'1
Executors failing to probate wills and persons intermeddling with the goods of a decedent were made liable for the debts of the decedent whether the estate was sufficient for that purpose or not.
The conferring of probate jurisdiction upon the courts of sessions is an indication of New England influence in
1 Charter and Laws of Pennsylvania, 5, 6.
the framing of the laws. About 1686 instructions from the home government reserved to the governor the probate of wills, after which the governor or the secretary of the province exercised this jurisdiction, and a department grew up in the secretary's office known as the prerogative court, whose jurisdiction was exercised in minor matters by local delegates. The prerogative court was not succeeded by a court of probate until 1778.
In the territories on the Delaware the ordinance of 1676, putting in force the Duke of York's laws, did not expressly concede to the local courts the right to grant administration or probate wills, and such matters were in the hands of the authorities at the seat of government. A case in New Castle against a deceased person was on April 4, 1677, continued until the “letter of administration bee come from New York."'1 Prior to this, the justices of the court at New Castle, in a letter to Governor Andros, dated February 8, 1677, giving an account of local affairs, made the following request :
“That yor. Honor will bee pleased soe far to Impower the Commander Captn John Colier or the Court that wills may bee proved before them and Letters of Administracon granted accordingly wth ye fees for the estates of the most part of the People in these parts are so Inconciderable that otherwyse the Charges & Expenses of going to yor honor Att New Yorke for to obtaine the same may Prove mutch to the hinderance of such Estates."2
To which the governor replied in a letter dated April 6, 1677, and read at the court held June 8, 1677:
"The severall Corts May att a session take proofes and security and grant administracon of wills but if above twenty pounds to remit the same here to the secretary's office to bee recorded.''3
i Records of the Court of New Castle, 74. 2 Records of the Court of New Castle, 66. 3 Records of the Court of New Castle, 98.
The court availed itself of this permission at once and several wills were proved at this term of court. The procedure in one case will serve as an illustration. Rebecca Eghberts, widow of Barent Eghberts, deceased, produced the will of her husband dated October 20, 1674. The two witnesses swore that they were present and saw the testator sign the will. The court then granted "administration” according to the will and directed that it be recorded. In other estates, where the decedents died intestate, administration in the proper sense was granted.
Under the power conferred upon William Penn in the charter of Pennsylvania, to appoint judges, magistrates and other officers, it was provided in the laws agreed upon in England that there should be a register for births, marriages, burials, wills and letters of administration distinct from the office for enrolling deeds. This provision was incorporated in the “Great Law" or body of laws passed at Upland, December 7, 1682,2 and Christopher Taylor was appointed Register General for the province and territories. The register general kept his office at Philadelphia and commissioned deputies to act in the respective counties. Taylor, according to Proud, was a well educated Yorkshireman, an eminent Quaker preacher and the author of several tracts in defense of their principles. He was also a member of the first provincial council, but did not live long to enjoy his honors, dying in the early part of 1686. His own will is No. 26 on the register.
The first will on record is that of Thomas Fream, proved, apparently, October 10, 1682. Wills and administrations were kept in separate volumes, as is still the
* Charter and Laws of Pennsylvania, 101.
practice. The first entries are brief and informal and it probably took some time to settle the forms and practice of the office. The following entry will serve as an example:
“Philadelphia in the Province of Pennsylvania 2 m 1683.
"Wheras Mary Mason Relict of the deceased, John Mason did the day of the date thereof appear before me, Christopher Taylor, Register Genll of the said Province, &c. desiring to take out Letters of Administration upon the estate of the said John Mason and having given in and attested an Inventory of the said estate with sufficient security to pay his debts and dispose of the remainder according to law I do by virtue of my Commission from William Penn, Pro ary and Governs of the said Province and Territories grant Letters of Administration to the said Mary Mason for the ends and purposes aforesaid. Under my hand and the seal of my office.
"Regist. Genll (SEAL)"
William Clark, the deputy register for Kent and Sussex counties, had served as a justice in the court at the Whorekills under the previous government and became chief justice of the provincial court in 1703. One of his entries is as follows:
“Whereas William Darnall of the County of Kent, Marchant, did the day of the date hereof appeare before me, William Clark, deputy Register of the Countys of Sussex and Kent in the territories of the Provience of Pensilvania; and desireth as princable Creditor to take out Letters of Administracon upon the estate of Andrew Stocker, deceased, And haveing Given me Good and sufficient securiety to bring in unto me a true inventory of the estate that the said Andrew Stocker dyd possessed of within one moneth after the date hereof soe fer as the same shall com to his knowlidge And also to pay his debts soe fer as the Estate will extend and dispose of the Remayner According to Law, I doe therefor by the authority of William Penn, Proprietary and Governt of the Provience of Pensilvania and the Territories thereunto belonging & by commicon from Christopher Taylor, Register General of the provience of Pen
silvania and the Counties of Sussex and Kent Grant Letters of Administracon to the said William Darnall for the ends and purposes A for said. Given under my hand and seale of my office the 18th day of me In the year of our Lord according to the English account 1683.
In the same volume are recorded inventories of estates as well as records of births, deaths and marriages. The following is curious:
“These are to give notice unto all persons whatsoever that there is a Marriage shortly intended to be solmonized Betwene Abraham Westron, widdower, and Mary Smith, widdow, if any person have anything justly to object wherefor the said parties should not be Joyned together in marriage Let them Give in there Exceptions unto me to the end that the same may be prevented or elce forever after to be silant in that case. dated at Lewis the 5 day of the mo 1683.
During its existence the office of register general was held by men of importance, including Governors Blackwell, Markham, Evans and Gookin, who probably kept it themselves on account of the fees, while among the deputy registers were Patrick Robinson and David Lloyd whose activities in political and legal affairs have been referred to before.
The duties of the register general and his deputies were not defined by legislation until the passage of the Act of January 12, 1705, an elaborate measure relating to the probate of written and nuncupative wills. This act in its last section provided for the appointment of the register general by the governor and required him
1 Sussex County Records, MSS. Historical Society of Pennsylvania. For similar entries, see Turner's Sussex County Records, 133.
2 II Statutes at Large, 194; II Colonial Records, 238, January 12, 1705.