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In the preceding pages brief references were made to the register's court and orphans' court. The rise of the latter tribunal from a humble beginning to its present important position is sufficiently interesting to warrant a more detailed account of its functions and growth. However unobtrusively the work of its judges may be performed, it should not be permitted to escape attention, for, as Judge Duncan grimly puts it, “as sure as we descend into our graves, so sure into this court we must come."1
During the American colonial period the settlement of the estates of decedents belonged, in England, principally to the ecclesiastical courts. Briefly, the territory of England was divided into two provinces, Canterbury and York, each presided over by an archbishop or metropolitan. Each of the provinces was divided into dioceses. With exceptions, which it is unnecessary to particularize here, the bishop of the diocese where the decedent had his last domicile had the power to appoint the administrator and settle his accounts, and where there was a will, it was proved before him and letters testamentary issued thereon. When so acting, he was called the “ordinary” and held what was called the “consistory court,” either in person or by a deputy styled his commissary. From this court an appeal would lie to that of the archbishop and thence to the king in chancery, that is, to the "court of delegates," appointed by the king's commission under the great seal.
1 McPherson v. Cunliff, 11 Sergeant & Rawle's Reports, 431 (1824).
2 Williams on Executors, Part I, Book 4, chapter 1.
Here and there were districts called "peculiars," exempt from the jurisdiction of the ordinary and subject to the metropolitan only. The court of appeal of the Archbishop of Canterbury was called the Court of the Arches, because formerly held in the church of Saint Mary le bow (Sancta Maria de arcubus), and was presided over by the “dean of the arches.” If the decedent left bona notabilia or chattels to the value of one hundred shillings in two different dioceses or jurisdictions, then probate or administration belonged to the archbishop, by way of special prerogative, and the matter was cognizable in the "prerogative court” before a judge appointed by the archbishop.?
Such a system was wholly impractical in America, where the principle of an established church, even in the most loyal colonies, never gained more than a precarious foothold. It would have met with the opposition not only of the many sects into which the emigrants were divided, but also with that, probably, of the common lawyers, whose jealousy of the canonists and civilians was then at its height. But the feeling that probate and administration were something separate and apart from the common law was sufficiently strong in most of the colonies to lead to the creation of separate tribunals for the exercise of jurisdiction over decedents' estates, and to the retention of, at least, a supervision over such matters by the governor and council.? By a law of the colony at Plymouth of 1633 wills were to be probated before the governor and council, while in Maryland in the records of the court held at St. Mary's by the proprietor and his council, beginning 1637, are
1 Blackstone's Commentaries, Vol. II, 590, Vol. III, 64.
Article on Wills by L. M. Dagget in Two Centuries' Growth of American Law, 167.
3 Laws of the Colony of New Plymouth (Edition of 1836), 32. many instances of the grant of probate or administration as well as of the settlement of executors' accounts. In the Massachusetts Colony probate of wills was to be made at the county court, but by an act of 1652 two magistrates with the recorder or clerk of the county court meeting together were authorized to allow wills and grant administration, reporting to the county court.2 The charter of 1692 made the governor and council a court of probate, although these officials seem to have exercised their jurisdiction through the county judges, with an appeal reserved to the governor and council as a supreme court of probate.
As we have previously seen, the Duke of York's laws for the government of New York were in 1676 put in force in the settlements on the Delaware by Governor Andros. These laws contained minute provisions for the care of the property of decedents. Upon the death of any person it was made the duty of the constable with two overseers of the parish to “repair to the house of the deceased party to enquire after the manner of his death and of his will and testament and in case none doth appear or shall be produced, it may be taken for granted that the person died intestate,” whereupon security was to be taken for the care of the estate until the next court of sessions, where all cases of probate and administration were to be adjudged. Administration was to be granted to the widow or children upon the entry of security and an inventory filed.
"But in case the deceased Dye without widow or Child, then the estate, for the better improvement thereof shall be sould by order of the Court at an Outcry, and the purchasers all puting Security, and Acknowledging Judgment for their debt which by the Court shall be Assigned to the several Creditors
1 Maryland Archives, Judicial and Testamentary Business of the Provincial Court, 12.
2 Laws of the Colony of Massachusetts (1672), 157.
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 informed 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
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." 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."
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
1 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.