Wills: Part II - EARLY WILL MAKING IN NEW JERSEY, 1670-1750, by William Nelson.
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ED. NOTE: Footnotes, beginning with number one, are given on each page.
Extracted from DOCUMENTS RELATING TO THE COLONIAL HISTORY OF THE STATE OF
NEW JERSEY, VOLUME XXIII, CALENDAR OF NEW JERSEY WILLS, VOLUME I, 1670-1730;
Paterson NJ, 1901, by William Nelson.
EARLY WILL MAKING IN NEW JERSEY, Topics. [Topics 1-14 are in Part I, in these archives.]
1. Primitive Ideas of Property; The Descent of Property; Semitic Laws of Descent
2. Aryan Laws of Inheritance
3. Roman Testamentary Law; The Roman-dutch Law in New Netherlands
4. Some Dutch Wills and Administrations
5. English Testamentary Law
6. Nuncupative Wills
7. Earliest New York Legislation
8. Earliest Probates of Wills in New Jersey
9. A Newark Record of Some Wills
10. First New Jersey Legislation Regarding Wills
11. Jurisdiction of the Governor and Council
12. Prerogative Jurisdiction; Deputy Surrogates
13. Nuncupative Wills; "Letters Testimonial"
14. The Probate of Wills in the Provincial Era
15. Inconveniences in Probating Wills
16. Surrogates in the Provincial Times
17. Royal Encroachment on the Governor's Prerogative
18. Some Provincial Acts
19. Fees of the Prerogative Office; The Secretary's Fees
20. Wills as Conveyances of Lands
21. A Complicated Administration
22. Special Remedial Acts of the Legislature
23. Governor Franklin's Final Acts as Ordinary
24. Under the State Government
25. Special Acts for Settling Certain Estates
26. Change in the System of Recording Wills
27. The Appointment of Surrogates; Foreign Wills; Miscellaneous Acts.
28. Proposed Revision of the Orphans' Court Act
29. The Constitution of 1844; The Revisions of 1846, 1874 and 1898.
30. The Prerogative Seal
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[page xlix cont.]
XV - INCONVENIENCES IN PROBATING WILLS
In a remonstrance of the Assembly of New Jersey to Lord Cornbury, May
5, 1707, among the evils enumerated by them as existing in the
administration was this:
"The only Office for Probate of Wills being in Burlington, it must be
very expensive and inconvenient for Persons, who live remote, especially for
the whole Eastern Division. [page xlx] We therefore pary the Govenour to
assent to and Act to settle such an Office in every County or at least in
each Division of this Province, and that the Officers may be men of Good
Estates and known Integrity in the said County or Division. [page l] We
therefore pray the Governour to assent to an Act to settle suct an Office in
every County or at least in each Division of this Province, and that the
Officers may be men of Good Estates and known Integrity in the said County
or Division."1
Lord Cornbury replied at great length, May 12, 1707, to the bitter
attacks of the Assembly, and on the subject of the probate office had this
to say:
"The office of Probate of wills, is wherever the Governor is,
Consequently not at Burlington only, Ever Since the Queen has done me the
honour to Entrust me with the Government of this province I have never
failed of being in the Province twice every year, once at Burlington and
once at Amboy.....I was twise in Amboy last yeare, where anybody that had a
Will to prove, might have had it done if they pleased. Besides my being
twice every year in the Province Considering the Remoteness of Cape May
County and the County of Salem, I did appoint a Surrogate at Burlington2
before whome any of the Inhabitants of Either Division might have had their
Wills proved, I did not think it Necessary to appoint one in the Eastern
Division, because the Inhabitants of that Division are within a small day's
Journey of New Yorke, where their private affairs dayly calls many of them,
and where any of them may have their wills proved without any Injury to or
Incroachment upon their Properties, Rights or privileges.3
The House retorted in this vein, on October 29, 1707:
"We thought the only office for probate of Wills was at Burlington, but
your Excellcy has Convinct us that it is wherever your Excelly is, and
Consequently may be at Yorke, Albany, the East end Long Island, or in
Connecticut or New England, or any place more remote Should your Excellency
business or Inclination call you there which is So farr from
1 N. J. Archives, III., p. 175; Journals and Votes of the House of
Representatives of New Jersey, 1703-1710, Jersey City, 1872, p. 100.
2 Thomas Revell
3 Journals and Votes of the House of Representatives of New Jersey, ut
supra. p. 112; N. J. Archives, III., 183.
[page li]
Making it less a grievance that it Makes it more So, and
notwithstanding those Soft, Cool and Considerate terms of Malicious
Scandalous and frivolous with which your Excellecy Vouchsafes to treat the
assembly of this Province they are of opinion that no Judicious or
Impartiall men will think it reasonable that the Inhabitants of one Province
Should goe into another to have their Wills proved, and take letters of
Administration at fort Anne from the Govenr of New Yorke, for what Should
Regularly be done by the Governour of New Jersey in Jersey, to which place
all the acts of Government relating to New Jersey are limited by the Queen's
Letters pattent under the Great Seale of England, and when your Excellency
is absent from new Jersey to be Executed by the Lieutenant govr, and by the
sd letters Pattents Not the least collour of authority is given to your
Excellency, to doe any act of Government relating to New Jersey, anywhere
but in Jersey, Nor is there any Instructions (that we know of) Contradicting
the said Letters Pattents, anywhere upon Record in this province, to warrant
your Excellency's Conduct in this affaire.
"If this be not Cause and just cause of Complaint we doe not know what
is, wea re inclined to believe the Province of New Yorke, would think it Soe
were they to come to Amboy or Burlington to prove wills, &c.
"We doe not think that what we desire is an Invation of the Queen's
Right, but what her Majesty without Infringement of her Prerogative Royall
may assent to, and their late Majesty's of blessed Memory did by their
Govenour Coll Fletcher assent to an Act made in New Yorke in the yeare 1692
Entitled an act for the Supervising of Intestate Estates, and Regulating the
Probate of Wills, and granting Letters of administration1 by which the Court
of Common pleas in the
1 "By an act passed November 11, 1692, the granting of probate of wills and
administrations is expressly vested in the Governor or his delegate under
the prerogative seal . . . . At the passing of the Act of 1692, the Governor
appointed a surrogate or deputy for the business of the prerogative court
and since that period a constant succession of surrogates have been
commissioned by the Governors under the prerogative seeal, yet performed the
prerogative court business in the same place where the Seceretary held and
exercised his office." N. Y. Col. Docs., VII., 324. The bill was
introduced April 28, 1691, and passed by the House May 2, but was not passed
until November 14, 1692. Journal of the General Assembly of New York, New
York, 1764, I., 9, 21, 28. "The powers relative to probate of [footnote
continued on page lii] last wills and testaments, and the granting of
letters of administrations on intestate estates, are committed to the
Governor, who acts ordinarily by a delegate." Smith's Hist., N. Y., New
York, 1829, I., 377.
[page lii]
Remote Counties of that Province was Impowered to Take the
Examination of witnesses to and Will within their Respective Counties and
certifie the same to the Secretary's office and the Judges of the Severall
Courts in those Remote County's Impower d to Grant probates of any will or
Letters of administration to person or persons, where the Estate did not
exceed 50£, what has bin done there may with as much reason be done here
without Sacrificing the Queen's Prerogative Royall, to the humours or
Capricioes of any person or persons whatsoever."1
The Governor and the Assembly were at swords' points on this and every
other matter of administration, and nothing came of this demand for better
probate facilities in the Province, during his time.
When Lord Lovelace was appointed Governor of the Province to succeed
Lord Cornbury, the Lords of Trade, in sending him her Majesty's
instructions, on June 28, 1708, referred to this complaint of the New Jersey
Assembly, commenting favorably upon the remonstrance, in the following
language:
"Tis true that the probate of Wills and Granting of Letters of
Administration, is by Her Majesty, entrusted with the Governor; Yet we do
not see that the settling such an office in each Division in New Jersey, as
proposed by the Remonstrance for the Ease of Her Majesty's Subjects there
will be a lessening of the Rights of Prerogative, or of the Governor."2
Lord Lovelace lived too short a time to carry out the proposed reform,
but his successor, Colonel Robert Hunter, acceded to the wishes of the
people.3 After the custom of the day, the Grand Jury for the Counties of
Middlesex and Somerset, at the sessions held at Perth Amboy, the fourth
Tuesday in May, 1712, adopted an address to the Governor, commending his
administration for several of his acts, among them:
1 Journals and Votes of the House of Representatives of New Jersey, ut
supra, pp. 134-135; N. J. Archives, III., 247.
2 N. J. Archives, III., p. 327
3 Governor Hunter's insturctions were precisely the same as Cornbury's,
relative to the probate of wills.
[page liii]
"Your Excellency Appointing Surrogates in remote parts of the
Province, which gives a general ease to the Country, in preventing the great
trouble and excessive charge to which many were formerly exposed in
Travelling from the most distant Places of the Province to Burlington, for
Probate of Wills, Letters of Administration and Licenses of Marriages."1
1 N. J. Archives, XI., 34.
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XVI - SURROGATES IN THE PROVINCIAL TIMES
Some of the surrogates, etc., appointed by the Governors during the
Provincial era, and the dates of their appointments, were as follows:
Thomas Gordon, February 14, 1710-11.
Michael Kearny, surrogate of New Jersey, Oct. 24, 1720.
Thomas Smith, surrogate of West Jersey, July 17, 1722.
Samuel Bustill, deputy surrogate for West Jersey, August 22, 1722;
surrogate for West Jersey, March 1, 1732-3.
John Rolfe, deputy surrogate, Cape May and Salem counties, September
11, 1722.
John Reading, surrogate for Hunterdon county, Aug. 18, 1727.
Lawrence Smith, surrogate for Monmouth county, August 18, 1727.
Joseph Rose, of Burlington, surrogate for West Jersey, October 13,
1735.
Charles Read, surrogate for the prerogative court, November 8, 1744;
July 1, 1746; September 18, 1747; register of the prerogative court,
December 25, 1759; surrogate of the prerogative court, March 22, 1762.
Jacob Dennis, surrogate, prerogative court, Monmouth couty, April 16,
1748.
Jeremiah Condy Russell, surrogate, Sussex and Morris counties, November
26, 1753.
Aaron Doud, surrogate, Sussex county, March ----, 1759.
James Hude, surrogate East Jersey, March 22, 1762; surrogate,
prerogative court, East Jersey, Nov. 19, 1767; surrogate, Somerset county,
1768; surrogate, East Jersey, October 30, 1770.
[page liv]
Micajah How, surrogate, prerogative court, August 5, 1763; surrogate,
Hunterdon county, 1768.
John Reid, surrogate, prerogative court, August 5, 1763.
Robert Burchan, surrogate, prerogative court of New Jersey, July 17,
1765; surrogate, Burlington county, 1768.
Maurice Morgan, surrogate of the Province, July 15, 1767.
Bowes Reed, surrogate, Hunterdon county, 1767.
John Zabriskie, surrogate, Bergen county, November 19, 1767, and in 1768.
Charles Pettit, surrogate of the Province, November 19, 1767; surrogate
and register, October 27, 1769; surrogate general of New Jersey, October 28, 1769.
John Ladd, surrogate, Gloucester county, 1767.
Maskell Ewing, surrogate, Cumberland county, 1767.
Elijah Hughes, Cape May, surrogate, prerogative court, April 17, 1767;
surrogate, Cape May county, 1768.
Richard Kemble, surrogate, Morris cunty, 1768.
David Brearley, surrogate, Monmouth county, 1768; surrogate, March 13, 1771.
John Lefferty, surrogate, Somerset county, 1768.
William Taylor, surrogate, Hunterdon county, Nov. 26, 1768.
William Paterson, surrogate for the Province, Nov. 26, 1769.
George Reading, surrogate, Hunterdon county, Sept. 21, 1771.
Hugh Hughes, surrogate, Sussex county, Sept. 21, 1771.
John Carey, of Salem, surrogate, August 8, 1774.
John Thompson, of Perth Amboy, Oct. 22, 1774.
James Kirkpatrick, surrogate, East Jersey, Dec. 19, 1774.
Daniel Isaac Browne, surrogate, East Jersey, Dec. 20, 1774.
A commission was issued by Governor Josiah Hardy, March 22, 1762, to
Charles Read, Samuel Allinson and Gabriel Blond, of the City of Burlington,
John Ladd of the County of Gloucester, George Trenchard of the County of
Salem, Maskell Ewing of the County of Cumberland, Henry Young of the County
of Cape May, Theophilus Severns of the County of Hunterdon,
[page lv]
and Aaron Doud of the County of Sussex, to be surrogates of the Prerogative
Court in the Western Division of the Province of New Jersey, each of them to
have all powers and authorities to the said office belonging, and to hold
the same during the will and pleasure of the Governor.
A similar commission was granted by him the same day to Charles Read,
John Smyth and Jonathan Doane, of the City of Perth Amboy, Anthony White and
James Hude, Junr., of the City of New Brunswick, Robert Ogden of Elizabeth
Town, Uzal Ogden and Lewis Ogden of Newark, John Sobrisco (Zabriskie) of the
County of Bergen, Jacob Dennis and Samuel Leondard of the County of
Monmouth, appointing them and each of them surrogates of the Prerogative
Court in the Eastern Division of the Province of New Jersey, to hold the
same during his will and pleasure.1
1 N. J. Archives, IX., 359-360.
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XVII - ROYAL ENCROACHMENT ON THE GOVERNOR"S PREROGATIVE
Although by the instructions given from time to time to the several
Govenors of New Jersey they were vested with full power in the matter of the
probate of wills, etc., and by virtue of that power had been in the habit of
appointing their own surrogates, an important departure from this practice
occurred when Maurice Morgann was granted a patent by the King, under the
Great Seal of Great Britain, bearing date at Westminster, June 18, 1767, for
the offices of "Secretary, Clerk of the Council, Clerk of the Supreme Court,
Clerk of the Please, Surrogate and keeper and register of records, in the
Colony of Nova Caesarea or New Jersey in America," to have, hold, exercise
and enjoy the said offices unto him by himself or his sufficient deputy or
deputies, for whom he should be answerable, during the royal pleasure.
Morgann was evidently the protege of some court favorite. He resided in
Parliament street, Westminster, London, and not being disposed to relinquish
the pleasures of London life, he appointed Joseph Reed, Jr., (afterwards
Washington"s Adjutant-General) to be his deputy in said offices during the
pleasure of the said
[page lvi]
Morgann.1 This instrument bears date
June 27, 1767. Reed qualified October 10, 1767, before Charles Read, one of
the Justices of the Supreme Court of New Jersey.2 This seems a little
singular in view of the fact that Charles Reed at this time held the office
of Register of the Prerogative Court, by appointment of Governor Franklin.
At a meeting of the Governor and his Council, of whom Charles Read was
one, at Burlington, November 13, 1767, Joseph Reed produced an
exemplification of the commission of Maurice Morgann as Clerk of the
Council, and the instrument under the hand and seal of the said Maurice
Morgann appointing Reed as Deputy, and qualified and was admitted as Deputy
Clerk. The Governor then acquainted the Council that Read had made a claim,
as Deputy Secretary and Register of the Province, for the seals and records
of the Prerogative Court, and requested the Governor as Judge of the said
court to deliver them to him; that a claim of the said office of Register of
the Prerogative Court was also made by Charles Read, and as the welfare and
interest of the province greatly depended upon the due regulation of the
said court and its offices, his Excellency prayed the advice of the Council
thereon. The next day the Governor stated that Charles Read had agreed that
if an order under the seal of the Prerogative Court was produced to him, he
would deliver up the records of the Prerogative Court to the person therein
appointed to receive them, saving to himself the right of further
prosecuting his claim if he should think it expedient. The Council
thereupon thought it unnecessary to consider farther the merits of the
claims, but advised the Governor to issue such order and to transact the
business of the Court with the said Joseph Reed in the usual and customary
manner.3
The Governor natually disliked to provoke a controversy with the royal
appointing power complacently issued a commission to Joseph Reed, November
19, 1767, in which, after referring to the royal letters patent, he added:
"Whereas,
1 Joseph Reed, junior, studied law in the Middle Temple, London, from
December 1763, until the spring of 1765. Reed"s Reed, I., 28. It was
probably through friendships formed there and then that he secured this
appointment.
2 N. J. Archives, X., 1-7.
3 N. J. Archives, XVII., 457-8.
[page lvii]
Executors and Administators, and their Accounts to State,
Examine and Approve, allow and discharge and Quietus Est thereupon to give
and grant, and generally to do execute and perform all such Acts and things
as to the said Office of Surrogate" did belong and appertain, so long as he
should continue as such deputy under the said Maurice Morgann under the
appointment aforesaid, saving and reserving nevertheless as Ordinary of the
said Province "all Judical power in Controverted Cases, according to the
Usage and Custome of the said Province."1
This act of the King, in appointing to so important an office a person
who never intended to administer its duties in person, but only by a deputy,
while he reaped the emoluments and spent them three thousand miles away,
following so closely after the Stamp Act, was another of those irksome
exercises of authority that made more restive an already dissatisfied
people.
1 N. J. Archives, X., pp. 8-10. Two years later, or on October 27, 1769,
Morgann, being then in New Jersey, appointed Charles Pettit, who was a
deputy under Reed, to succeed the latter as his deputy in the offices of
Secretary of the Province, Clerk of the Council, Clerk of the Supreme Court,
Clerk of the Pleas, Surrogate and Keeper and Register of the Records of the
Province, etc.; revoking at the same time, the previous appointment of Reed.
N. J. Archives, X., 132. It is possible that Reed"s personal affairs and
his law practice now demanded all his time, and that the appointment of his
successor was made at his request, Mr. Pettit having married his
half-sister. Reed"s Reed, I., 40. No other mention of Mr. Morgann has
been found in the records.
_________________________________________________________________
XVIII - SOME PROVINCIAL ACTS
Among the very few acts passed by the Legislature, before the
Revolution, having any relation to the administration of estates, was the
following, passed March 17, 1713-14:
An act confirming Letters of Administration, granted, and to be granted
within this Province.
Sect. 1. Whereas Her Sacred Majesty hath reserved to her respective
Governors or Commanders in Chief of this her Colony of New-Jersey, the
Collating to Benefices, granted Licenses for Marriages, Probates of Wills,
and granting Letters of Administration,
2. BE IT THEREFORE ENACTED, etc., That all Letters of Administration
that heretofore have been granted by the present or any
[page lviii]
preceding Govenor of Commander in Chief, or by any other Person or Persons
that heretofore have been empowerd to grant the same, or that hereafter
shall be granted within this Colony by the present of any succeeding
Governor or Commander in Chief, or by any Person or Persons empowered by him
or then, all such Letters of Administration heretofore granted, or hereafter
to be granted by the Authority aforesaid, shall only be, and are hereby
declared to be, and at all Times hereafter shall be taken, deemed and
esteemed to be good and valid in the Law, to all Intent and Design of them,
and every of them respectively, and shal not be Superseded or Reversed by
any other Administration whatsoever, granted, or to be granted, for Estates
within this Colony, excepting by such Administration as shall be granted by
the Authority aforesaid.1
"An Act for the speedy recovery of legacies," etc., passed July 8,
1730, provided that legatees might sue or prosecute an action of debt or
determine for such legacy, after it should become due; if it amounted to the
value of twenty pounds or upwards, in the Supreme Court of the province or
any other court of record; if upwards of forty shillings and under twenty
pounds, in any of the courts of common pleas; if of the value of forty
shillings or under, before any justice of the peace. The respective courts
where said actions might be commenced, upon the plea of want of assets to
pay all the debts of the legacies, were directed to appoint auditors to
examine the accounts of the executors, who, after full hering, with due
notice to all parties, should procure the auditors aforesaid to report how
the accounts of the executors stood, and the court was then authorized to
award execution upon the judgement to be had in the suit for the proportion
of assets that ought to go towards paying the legacies; and the court was
also authorized to correct and amend any mistakes or errors that might
happen in the accounts so reported. Provision was likewise made for a
reasonable demand to be first made of the executor of executors before any
such suit could be maintained, and also for giving to the executors a
refunding bond. The act
1 Nevill"s Laws, I., 29-30; N. J. Archives, XIII., 552; Allinson"s Laws, 26.
[page lix]
was to remain in force for a limited time, before the
expiration of which is was continued forever, by another act passed March
15, 1738-9.1
This act was repealed and replaced by "An Act for the more speedy
Recovery of Legacies in this Province, and for affirming such Acts of
Administrators bona Fide done before Notice of a Will," passed March 11,
1774. This authorized suits for legacies amounting to the value of £15 or
upwards to be brought in the Supreme Court, or any other court of record,
and made some other slight changes in the previous statute.2 The act was
further slightly modified in the revision of March 27, 1874.3
1 Nevill"s Laws, I., 192-252; N. J. Archives, XIV., 438; XV., 79.
2 Allinson"s Laws, 442; Paterson, 36; Rev. Laws (1821), 59; Rev. St. (1846),
358.
3 Gen. St. 1938.
_________________________________________________________________
XIX - FEES OF THE PREROGATIVE OFFICE
Soon after Lord Cornbury"s accession as Governor of New Jersey he, with
the advice of his Council, drew up and published "An Ordinance for
Establishing Courts of Judicature."4 The resolution of the Council for
establishing the Courts mentioned in the Ordinance was adopted August 18,
1703.5 The Ordinance was printed by William Bradford, at New York, in
1704, making four pages folio. 6
In this connection, Lord Cornbury also prescribed the fees for services
rendered in the several Courts, and these were published at the same time by
William Bradford, in a separate pamphlet of four pages folio, entitled : "A
Catalogue of Fees established By the Governour & Council for the Province of
New Jersey."6 The fees of the Prerogative Court were as follows:
THE SECRETARY'S FEES
£. S. D.
For Recording a Will, Inventory, &c, under 24 lines,..... 00 03 00
For every Sheet more, ................................... 00 00 09
4 Printed in full in Field"s Provincial Courts of New Jersey, New York,
1849, pp. 256-262
5 N. J. Archives, XIII., 303; III., 4
6 Copy in the State Library at Trenton
[page lx]
For every Letter of Administration of 100 l, or under, ........ 00 06 00
For the certificate of a Probate of a Will, ................... 00 04 00
For a Quietus on an Administration, ........................... 0 6 0
This Ordinance was reprinted in 1714,1 in connection with "An Act
Enforcing the Observation of the Ordinance for establishing Fees within this
Province," passed March 17, 1713-14, and subsequently disallowed by the
King, January 20, 1721-2.2
A New "Ordinance for Regulating & Establishing Fees Within this his
Majesty"s Province of New Jersey," was passed by Governor William Burnet,
November 26, 1723, and was printed by William Bradford, at New York, in
1724, in a pamphlet of fourteen folio pages.1 Another Ordinanace on the
same subject was published in 1727.1 The first Act of the Legislature
establishing fees was passed December 2, 1743, but failed to receive the
royal approval.3
The following fees were allowed by an act passed February 17, 1747-8,
and confirmed by the King in Council, November 23, 1749:
Engrossing a Will and Probate, to be done in Parchment, for each Sheet
containing fifteen Lines and six Words in a Line, ten pence per Sheet.
Taking Depositions to a Will, and Recording the Will, each Sheet
containing fifteen Lines and six Words to a line, seven pence per Sheet.
Swearing or Attesting the Witnesses and Executors, for each nine pence.
Drawing every Fiat, or Order for Administration, and for Swearing or
Attesting the Administrators, three shillings.
Engrossing the Letters of Administration, each Sheet containing fifteen
Lines, and six Words to a Line, ten pence per Sheet.
Recording the same per Sheet, seven pence.
1 Copy is in the State Library at Trenton
2 N. J. Archives, XIII., 552; XIV., 240; IV., 221
3 N. J. Archives, XV., 311; VI., 238-241
[page lxi]
Drawing the Administration Bond, two shillings and six pence.
Filing the Original Will, nine pence.
Recording the Inventory per Sheet, each Sheet containing fifteen Lines,
and six Words to a Line, seven pence.
Filing the Inventory and Swearing the Executor, eighteen pence.
Every Quietus per Sheet aforesaid, seven pence.
Recording the same per Sheet as aforesaid, one shilling.
Auditing all the Accounts of Administrators and Executors, one shilling.
Drawing and setting up Notice in order to their passing their Accounts,
one shilling.1
1 Nevill"s Laws, I., 341; N. J. Archives, XV., 614-18, 142; Allinson"s Laws, 162.
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XX - WILLS AS CONVEYANCES OF LANDS
Mention has been made (p. xxxviii, ante) of acts passed in 1683 and
1699, providing that wills in writing, dutly witnessed, and registerd in the
public records, should be of the same force to convey lands as other
conveyances. To the same end was this more elaborate act passed March 17,
1713-14:
"An Act for confirming of Conveyances of lands made and to be made by
Wills and Powers of Attorney, and declaring was Exemplifications of Records
and other Things shall be hidden and received for good Evidence of Estates
of Inheritance, and for Transfering of Uses into possession.
"Sect. 1. Witness on and several Years after the Settlement of this
Colony, the great distance of Plantations, and scarcity of Inhabitants was
such, that it was difficult to get more than two Witnesses to be present at
the Signing, Sealing and Acknowledging of Last Wills and Testaments, which
induced the then Legislature of the Province of East-Jersey, now the
Eastern-Division of this Province, in the Year One Thousand Six Hundred and
Eighty Two, to make a Law declaring, that all Wills in Writing, attested by
two credible Witnesses, shall be of the same force to convey lands as other
Conveyances.
"And whereas Pursuant to the said Law, many Wills have
[page lxii]
been made, Bequeathing and Devising Lands, signed by the Testator, and
attested by two subscribing Witnesses.
"2. Be it therefore Enacted by the Governor, Council and General
Assembly, and by the Authority of the same, That all last Wills and
Testaments heretofore made in Writing, signed by the Testator, In Presence
of two subscribing Witnesses, and proved according to the Custom heretofore
used in either the Eastern or Western-Divisions of this Province, by which
any Lands, Tenements or Hereditaments have been given, devised or bequeathed
unto any Person or Persons whatsoever, every of the said last Wills and
Testaments shall, at all times hereafter, be held, taken, deemed and
esteemed as good, valid and sufficient Title in the Law, to all Intents,
Constructions and Purposes, as if the Testator had conveyed the same away in
his Life-Time, and shall forever bar any Person or Persons claiming or to
claim Estate under any such Testator, contrary to the true Intent and
Meaning of such Will and Testament; and the said Will being proved as
aforesaid, and the Books of Registers of either the Eastern or
Western-Divisions of this Province in which they are entered, being proved
as aforesaid, may be given, and shall be received in Evidence, any Law or
Custom to the contrary notwithstanding.
"3. And be it Enacted by the authority aforesaid, That all Wills and
Testaments which hereafter shall be made in some doubts have arisen on the
said Appointment and on the Power of the said Maurice Morgann to make a
Deputy as to the Office of Surrogate; In order therefore That His Majesty's
Gracious Intentions in the said Paent expressed may have full Effect within
this Colony and the deputation of the said Maurice Morgann Esq. may not in
respect to the Surrogate's Office, be disputed," he therefore appointed said
Reed to be provincial and principal Surrogate of the Province of New Jersey,
and disallowed and made void all former commissions theretofore granted to
surrogates in said province, giving him full power and authority in the
stead and place of the Governor, "to swear or Affirm the witnesses to Last
Wills and Testaments, to Admit Administrations on the Estates of Persons
dying Intestate, and to Administer the Oaths or Affirmations to
[page lxiii]
Writing, signed and published by the Testator, in Presence of three
subscribing Witnesses,1 and regularly proved and entered upon the Books of
Records or Registers in the Secretary's Office of this Province, or any
proper Office for that Purpose, shall and are hereby declared, and forever
hereafter shall be taken, accepted, deemed and esteemed sufficient to
devise, bequeath and convey any Lands, Tenements, Heredtaments, or other
Estates whatsoever, within this Province, as effectually to all Intents,
Constructions and Purposes whatsoever, as if the Testator had converyed the
same away in his Life Time; and the Books in which they are registered or
recorded may be given in Evidence, and shall be accepted of and be
sufficient Evidence at all Times and Places where the said Wills or
Testatments may be requisite to be given in Evidence, any Law or Custom to
the contrary notwithstanding.
"4. And it shall be enacted by the Authority aforesaid, That the
Copies of any Last Will or Testament whatsoever heretofore made, or
hereafter to be made, within any Part of the Kingdoms of Great-Britain or
Ireland, by which any Lands, Tenements, Hereditaments, or other Estate
within this Province, are devised or bequeathed, certified under the Seal of
such Office where such Will or Testatment is proved and lodged, may be
given, and shall be received in Evidence, before any of the Courts of
Judicature within this Province, and be esteemed as valid and sufficient as
if the original Will or Testament were then and there produced and proved.
"5. And be it enacted by the Authority aforesaid, That the Copy of any
Will or Testament, made in any other of her Majesty's Colonies, by which any
Lands, Tenements, Hereditaments, or other Estate within this Province is
given, devised or bequeathed, being proved according to the
Custom of such Colony, certified under the Great Seal of such Colony, may be
given, and shall be received in Evidence in any of the Courts of Judicature
within this Province, and be esteemed as valid and sufficient as if the
original Will or Testament were then and there produced and proved."2
[page lxiv]
This act impressed upon landowners the importance of having wills
recorded, in case they devised lands.
1 By Act approved March 12, 1851, two subscribing witnesses are
sufficient
2 Kinsey's Laws, 1732, pp. 46-48; N. J. Archives, XIII., 552; Nevill's
Laws, I., [page lxiv] 1752, pp. 37-39; Allinson's Laws, 1776, p. 27;
Paterson's Laws, fol. ed. 1800, p. 5; Revision of 1821, p. 7; Rev. Statutes,
1846, p. 635; General Statutes, 1896, pp. 875-877; N. J. Archives, XIII., 520.
---------------------------------------------------------------------
XXI - A COMPLICATED ADMINISTRATION
The limitations of the Prerogative Court in administering upon an
insolvent estate in the early days find an illustration in the following
case. Captain John Bowne, of Mattawan, Middletown, Monmouth county, made
his will, September 14, 1714. After making a number of bequests, among
others to William Hartshorne's oldest children, he gave the rest of his real
and personal property to his brothers, Obadiah Bowne and Richard Saltar,
whom he also appointed executors. The will was proved April 11, 1716. The
personal estate was appraised at £16, 982.5.0, mostly in book debts. Owing
to the certain difficulties in settling up the estate, the Legislature, on
March 27, 1719, passed "An Act to enforce the due Administration of the
Estate of Captain John Bowne, deceased, late of the County of Monmouth."
Obadiah received his share of the residue, and left a will, proved April 25,
1726. The bookdebts due John's estate proved uncollectible, and
Hartshorne's heirs failing to receive what they considered to be coming to
them filed a bill in chancery to compel Richard Saltar, the surviving
executor, to pay. A decree was given in their favor, a copy served on the
defendant and demand made for the money, which, however, was not paid. The
Hartshornes therefore applied to the Governor and Council, February 1,
1727-8, for leave to put in suit Saltar's bond given for the administration
of Bowne's estate, in order for the recovery of the money decreed. An order
was made for Saltar to show cause accordingly the following Monday. On that
day, February 7, 1727-8, Saltar petitioned the Governor and Council to have
the bond given by his co-executor, Obadiah Bowne, to pay the half of the
debts and legacies due by the estate of John Bowne, put in suit. Both sides
were heard, and an order was then made that a copy of the bond be given to
Saltar that the same might be put in suit in the Supreme Court, and in case
of judgement thereon
[page lxv]
the Supreme Court should "Direct by
proper rules that the Executns from time to time on Such Judgment Shall only
Issue for Shall be Justly Incombend on the Obligors to pay and that by
directing the Auditing of Accounts & takeing Such other methods as Shall be
agreable to Equity & Justice." A like order was made in the case of the
Hartshornes, legatees of John Bowne, and Lawrence, one of the creditors of
said Bowne, and the executors of Obadiah Bowne, against Richard Saltar,
surviving executor of John Bowne, and the joint obligators with him.1
These proceedings are interesting, as showing the cumbersome and expensive
method of administering upon the estate. The aid of virtually three courts
was invoked to adjudicate the matters at issue. And yet the procedure has
not been so greatly simplified in the nearly two centuries that have since
elapsed.
1 N. J. Archives, XIV., 369, 384; XXIII, 50, 54.
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XXII - SPECIAL REMEDIAL ACTS OF THE LEGISLATURE
The foregoing instance shows that the Prerogative Court lacked many of
the powers and functions which have been vested in by wise legislation in
later years. The aid of the Court of Chancery was often invoked to assist
executors and administrators in the discharge of their duties, but not
infrequently it was found necessary to appeal to the Legislature for relief,
and we find sunch acts passed from time to time as these:
An Act to enable the Executors of Miles Forster, late of Perth Amboy in
the County of Middlesex, Merchant, deceased, to sell Lands to pay Debts and
Legacies, according to the Last Will and Testament of the said deceased.
Passed March 15, 1713-14.2
An Act to enable Sarah Edwards, sole Executrix and late Widow of Robert
Edwards, deceased, by and with the Consent of William Cuttler, her present
Husband, to make a good and lawful Conveyance of a Tract of Land sold by the
said Robert Edwards in his Life-Time to one Tunis Titus by Articles of
Agreement, and to receive the Remainder of the Money due for the said Lands
according to the Last Will and Testament
2 Ibid., XIII., 548.
[page lxvi]
of the said Robert Edwards, deceased. Passed March 15, 1713-14.1
An Act to enable Thomas Lambert, one of the principal Creditors of John
Easton, late of Nottingham in the County of Burlington, deceased, and
Administrator of the Goods, Rights, and Credits of the Estate or Estates of
Inheritance within the County of Burlington and the County of Salem in the
Province of Nova Caesarea, to sell Lands for and towards the Payment of his
just Debts. Passed March 17, 1713-14.2
An Act to enable certain Trustees to sell and dispose of a small Estate
of Inheritance in the County of Burlington. Passed March 17, 1713-14.3
An Act for vesting the Lands, late the Estate and Inheritance of
William Hall, Esq., late of Salem in the County of Salem, in Trustees, to be
sold and disposed of for the Payment of Debts, &c. Passed January 26,
1716-1717. 4
An Act to enable John Pittinger and Sycha Pittinger to sell and dispose
of the Real Estate of Richard Pittinger, deceased, for the Payment of Debts,
&c. Passed January 26, 1716-1717. 5
An Act to enforce the due Administration of the Estate of Capt. John
Bown, deceased, late of the County of Monmouth and Province of New-Jersey.
Passed March 27, 1719. 6
An Act for vesting the Lands late the Estate and Inheritance of Robert
Burnet, Esq., late of the County of Monmouth in the Province of New-Jersey,
in Trustees, to be sold and disposed of for the Payment of Debts. Passed
March 28, 1719. 7
As no more acts of this description were passed until after the
Revolution it is possible that relief was had in such cases through the
intervention of the Court of Chancery.8 Governor
1 N. J. Archives, XIII., 548
2 Ib., 552
3 Ib., 552
4 Ib., XIV., 69
5 Ib., 69
6 Ib., 111
7 Ib., 114
8 An Act forvesting certain Lands and Testaments in the Province of New
Jersey late of the Estate of John Drummond Earl of Milford in Trustees for
the Payment of a Debt to Alexander Porterfield Esqr of that Part of Great
Britain called Scotland, passed the Assembly, in 1730, but failed in the
Councill, on the technical plea that the notice of intended application for
the act had not been duly advertised. N. J. Archives, XIV., 427-9, 435-6.
It is not unlikely that the Governor had private instructions to discourage
the passage of such bills.
[page lxvii]
William Burnet, who arrived in 1719, is said to have been
partial to that Court, and loved to "magnify his office" as Chancellor.
---------------------------------------------------------------------
XXIII - GOVERNOR FRANKLIN'S FINAL ACTS AS ORDINARY
Amid all the excitement and turmoil of the impending war, Governor
Franklin went on with his accustomed duties, and among the probates of wills
granted under his signature we find these, down to the last days of his
administration:
Amos Benton, of Salem, will dated May 10, 1776; proved June 17, 1776,
before John Carey, surrogate; probate granted same day. 1
John Firth, will date 30th 4th mo., 1773; proved June 20, 1776, before
John Carey, surrogate; probate granted same day. 2
Josiah Miller, of the township of South Hanover, Morris county, will
dated Sept. 26, 1775; proved March 15, 1776, before Abraham Ogden,
surrogate; probate granted same day. 3
Andrew Miller, of Roxbury, Morris county, will dated May 6, 1775;
proved March 25, 1776, before Richard Kemble, surrogate; probate granted
same day. 4
Letters of administration were granted, June 20, 1776, to William
Nixon, administrator of the estate of Samuel Hartley, late of Salem,
deceased. 5
It is quite evident that these certificates of probate and letters of
administration were signed in blank by the Governor and distributed to the
surrogates. This would account for the palpable anachronism in the two
following entries in the records:
Letters of administration were granted by Governor Franklin unto Samuel
Jacques, 3d, administrator of the estate of Henry Martin, late of Middlesex
county, deceased, June 27, 1776.6
1 Liber No. 17 of Wills, in Secretary of State's office, 399
2 Ibid., 396
3 Liber M of Wills, 1.
4 Ibid., 434-5 This is the final entry in this volume.
5 Liber No. 16 of Wills, 500
6 Liber M of Wills, 31. Governor Franklin was placed under arrest on
June 17, by order of the Provincial Congress, and on June 25 was ordered to
be sent to Connecticut. He was not in a position to transact any official
business after his arrest.
[page lxviii]
Letters of administration with will annexed were granted on the estate
of Peter Sonmans, late of Philadelphia, deceased, by Governor Franklin,
September 9, 1776.1
1 Liber M of Wills, ut supra, 505.
XXIV - UNDER THE STATE GOVERNMENT
The Constitution of New Jersey, adopted July 2, 1776, provided (Sec.
VIII): "That the Governor be Ordinary or Surrogate General." And (Sec. IX):
"That the Governor and Council (seven whereof shall be a quorum) be the
Court of Appeals in the last Resort in all Causes of Law as heretofore."
"This was never construed to give appeals from the Ordinary, and the
Legislature never provided for taking such appeals. Until then , either in
England of this country, no appeal had ever been given, or been had from the
Prerogative or Testatmentary Courts, to the Courts of Appeals in cases of
law or equity." 2
The Convention whihc adopted the Constitution of 1776 adopted this
resolution on July 4 of that year:
"RESOLVED, That, in order to prevent a failure of justice, all judges,
justices of the peace, sheriffs, coroners, and other inferior officers of
the late government within this Colony, proceed in the execution of their
several offices, under the authority of the people, until the intended
Legislature and the several officers of the new government be settled and
perfected, having respect to the present Constitution of New Jersey, as by
the Congress of late ordained, and the orders of the Continental and
Provincial Congress; and that all actions, suits and processes be continued,
altering only the style and form thereof, according to the terms by the said
Constitution prescribed, in the further prosecution thereof." 3
2 Chancellor Zabriskie, in Harris v Vanderveer's Exr., N. J. Court of
Errors and Appeals, November term, 1869, 21 N. J. Eq. (6 C. E. Gr.), 453.
(In this case the Chancellor, sitting as a constitutional member of the
appellate court, voted to dimiss an appeal taken from his decree as
Ordinary, and filed a dissenting opinion). See also Anthony vs. Anthony, N.
J. Court of Errors and Appeals, April term, 1846, 5 N. J. Eq. (1 Haist.
Ch.), 627; Hillyer v Schench, N. J. Court of Errors and Appeals, March term,
1863, 15 N. J. Eq. (2 McCarter), 501.
3 Minutes of the Provincial Congress and the Council of Safety of New
Jersey (reprinted), Trenton, 1879, p. 491.
[page lxix]
The Legislature enacted, October 2, 1776: "That the several Courts of
Law and Equity of this state shall be confirmed and established, and
continued to be held with the Powers under the present Government, and at
the same Times and Places, as they were held at and before the Declaration
of Independency lately made by the Honourable the Continental Congress." 1
This raised the question whether the Prerogative Court came under
either of the categories within the scope of Sec. IX of the Constitution of
1776, or the statute just recited. On this point it was finally decided, in
1869:
["The Prerogative] Court has always been possessed of certain branches
of jurisdiction which reside in the ecclesiastical tribunals in England.
Hence, it has ever been regarded as an ecclesiastical court, and therefore
does not properly come under the denomination of a Court of Law or Equity."
2
The Surrogate General was, by an act passed October 8, 1778, left at
liberty to employ or appoint a deputy or deputies. 3
William Livingston having been elected Governor on August 31, 1776, by
the Legislature in joint meeting, accepted, and entered upon the duties of
that office on September 7. The hold-over surrogates who still had on hand
the old probate blanks erased the name of Franklin and interlined that of
Livingston instead. The Register of the Prerogative office began new
volumes of records of wills, the first entry in Liber No. 18, page 1, being
the record of the will of John Sexton, of the township of Bedminster,
Somerset county, dated September 10, 1776, and proved October 14, 1776,
before James Kirkpatrick, surrogate; probate granted the same day, by
Governor William Livingston. 4
1 Wilson's Laws, 3; Paterson's Laws, 38.
2 Harris vs. Vanderveer's Executor, Court of Errors and Appeals, November
Term, 1869, 21 N. N. Eq. (6 C. E. Gr.), 494. See also Wood v. Tallman's
Exrs., N. J. Supreme Court, 1793, 1 N. J. L. (Coxe), 155, 158.
3 Paterson, 39.
4 Liber No. 16 contains records of probates of wills by Governor
Livingston as of January 23, 1775; June 6, 1776, and September 6, 1776 all
before his accession to office. These entries were all made after April 29,
1777, and after he became Ordinary. The careless use of left-over blanks
explains the error. Liber No. 17 contains no records between June 17, 1776
and 1785. Liber M, of East Jersey Wills, contains no records from June 27,
1776, until 1780.
[page lxx]
The disorganization of the governmental machinery consequent upon the
declaration of the independence of New Jersey was keenly felt in the matter
of the settlement of estates. Writing from Newark, June 21, 1777, to
Governor Livingston, that public-spirited citizen, Joseph Hedden, junior,
says: "I am daily applied to by some of the inhabitants of this place to
nominate some fit person to act as deputy surrogate. There are a number of
wills to be proved, and letters of administration granted, and no person in
this county qualified to act in that office. If your Excellency would
please appoint Elisha Boudinot, Esq., to that office it would greatly oblige
a number of the inhabitants of this town." 1
Letters of administration were granted by Govenor Livingston, dated
November 21, 1777, in which he sets forth: "Know ye that at Newark on the
day of the date hereof, the last will and testament of Daniel Tichenor, late
of Essex, deceased, was proved before Elisha Boudinot, surrogate, who was
thereunto duly authorized and appointed for that purposed, and now approved
and allowed by me." Letters were accordingly issued to Susan Tichenor, the
executrix named in the will, who was required to return a true and perfect
inventory unto the registry of the Prerogative Court in the Secretary's
office at Burlington. 2
1 Selections from the Correspondence of the Executive of New Jersey; from
1776 to 1786, Newark, 1848, p. 72.
2 Original Letters, in New Jersey Historical Society.
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XXV - SPECIAL ACTS FOR SETTLING CERTAIN ESTATES
The uncertainty as to the jurisdiction of the courts during the
Revolutionary period was also instanced by a petition from the legatees of
Cornelius Johnson, presented to the General Assmebly May 17, 1777, asking
the House to appoint some persons to sell lands of his estate, there being
no provision in the law at the time, providing for such action.
Special acts were passed from time to time, in the absence of power in
the Courts to act in such matters, as follows:
An Act to confirm the Last Will and Testament of George
[page lxxi]
Brown, late of the Township of Woodbridge, in the County of Middlesex,
deceased. Passed May 24, 1779.
An Act to confirm the Last Will and Testament of Abraham Van-Neste,
Esquire, of Millstone, in the County of Somerset, and State of New Jersey,
deceased. Passed January 9, 1781.
An Act for enabling Trustees to sell and dispose of the Real Estate of
Jonathan Hampton, late of Elizabeth-Town, in the County of Essex, Esquire,
decdeased, for the Uses and Purposes mentioned therein. Passed Dec. 19,
1782.
An Act to enable Jacob Fries, surviving Executor of the Last Will and
Testament of John Jarman, deceased, to fulfil the Purposes of the said Will.
Passed June 11, 1783.
An Act for remedying certain Defects in the Testament and Last Will of
Thomas Shreve, late of the County of Salem, deceased, and to establish and
confirm the said Testament and Last Will. Passed June 14, 1783.
An Act to confirm and establish the Testament and Last Will of James
Hamilton, late of Bush-Hill, in the County of Philadelphia, of the
Commonwealth of Pennsylvania, Esquire, deceased. Passed Nov. 14, 1783.
An Act to confirm and establish the Trestament and Last Will of Samuel
Purviance, late of Pittsgrove, in the County of Salem, deceased. Passed
Nov. 27, 1783.
An Act to enable James Parker, one of the Executors of the Last Will
and Testament of Doctor Lewis Johnston, deceased, in Conjunction with Bowes
Reed, to fulfil the Purposes of the said Will. Passed Dec. 9, 1783.
---------------------------------------------------------------------
FIRST LEGISLATION CONCERNING THE PREROGATIVE COURT
The first legislation in New Jersey concerning the powers and duties of
the Prerogative Court was a statute passed December 16, 1784, entitled "An
Act to Ascertain the Power and Authority of the Ordinary and his Surrogates,
to Regulate the Jurisdiction of the Prerogative Court, and to Establish an
Orphan's Court in the Several Counties of this State." The preamble
declares that "it is necessary that the power and authority of the Ordinary
of the State, and his surrogates, should be difined, the jurisdiction of the
Prerogative Court
[page lxxii]
regulated, and an Orphan's Court established in the several counties of this state."
This act provided:
"Sec. I. From and after the passing of this act, the authority of the
ordinary shall extend only to the granting to probates of wills, letters of
administration, letters of guardianship, and marriage licenses, and to the
hearing and finally determining of all disputes that may arise thereon.
"Sec. II. For the more regular hearing and determining of all causes,
cognizable before the ordinary, he shall statedly hold a prerogative court
at the times and places appointed, or that hereafter shall be appointed by
him, for holding the court of chancery, when he shall hear, and finally
determine all causes, that shall come before him, either directly, or by
appeal from any of his surrogates, or the orphan's court, hereinafter
established."
"Sec. IV. The Ordinary shall hereafter appoint but one deputy or
surrogate in each county of the state; and the power and authority of such
surrogate shall be limited to the county for which he shall be appointed."
By Sec. V. the Judges of the Court of Common Pleas, in the several
counties, or any three of them, were constituted and appointed the Orphan's
Court for such county, and the surrogate of the county was made the clerk of
register of said court. By Sec. VII the Orphan's Court was given full power
and authority to hear and determine all disputes and controversies,
whatsoever, respecting the existence of wills, the fairness of inventories,
the right of administration, and the allowance of the accounts of the
executors, administrators, guardians or trustees, audited and stated by the
surrogate, with power to award process, etc. In effect, the Orphan's Courts
were given the same power as the Prerogative Court, but the latter retained
the original jurisdiction it had formerly enjoyed. 1
This statute may be thus analyzed:
First. It regulated the jurisdiction of the prerogative court, by
providing for the holding of stated terms of said court, for hearing and
determining all causes that might come before
1 Paterson, 59-62
[page lxxiii]
the Ordinary, either directly, of by appeal. (Sec. II.)
Where disputes respecting the existence of a will, the fairness of an
inventory, or the right of administration, were determined by the orphan's
court, an appeal lay to the prerogative court, if demanded by one of the
parties, within one month next after the sentence or decree of the Orphan's
Court. (Sec. XV.) It thus vested in one officer the powers which in
England had been entrusted to the Archbishop (or Prerogative Judge) and the
Ordinaries, or Bishops. This same power had always been exercised by the
Governors of New Jersey, as we have seen.
Second. It "ascertained the power and authority of the ordinary and
his surrogates," in Sec. I, II, and IV, quoted above. In England the
jurisdiction of the Ordinary extended to the collating of benefices, and
other ecclesiastical funtions. These had never been exercised by him in
New Jersey, and the statute expressly eliminates them. The original
jurisdiction of the Ordinary is clearly preserved.
This subject, particularly the scope of the act of 1784, was thoroughly
reviewed in the matter of Abraham Coursen's will, at the April term of the
Prerogative Court, 1843. In that case, the Ordinary (William Pennington)
after reviewing somewhat briefly the history of the jurisdiction of the
Prerogative Court, came to this conclusion:
"The Ordinary has the same original and appellate powers now that he
ever had. He has never been deprived of these powers by any act of the
legislature in fact; leaving out of view the question whether an act of that
kind would be constitutional if passed at all. The acts of 1784 and 1820
are merely declaratory, so far as they attempt to specify the subjects of
the Ordinary's jurisdiction, or that of his surrogates. I have, therefore,
no doubt at all that the Ordinary's original jurisdiction over the probate
of wills, and the granting of letters of administration, is general and
full, and not limited and special." 1
1 4 N. J. Eq. (3 Gr. Ch.), 415. This ruling has been followed ever
since. See Lothrop's case, Prerogative Court, October term, 1880, 33 N. J.
Eq. (6 Stew.), 247; Fisher's case, Prerogative Court, May term, 1892, 49 N.
J. Eq. (4 Dick.), 519; Simmons case, Prerogative Court, October term, 1896,
not reported; Bracher's case, Prerogative Court, May term, 60 N. J. Eq. (15
Dick.), 351.
[page lxxiv]
Third. It established an orphan's court in the several counties of the
state. As alread show, Secs. VII and VIII of this act, in defining the
powers and duties of the this court, merely extended to the new tribunal the
functions formerly exercised exclusively by the Ordinary. Other sections
regulated the procedure relative to disputes concerning wills, the auditing
of accounts of executors and administrators, fees, etc. "This court was
instituted by law to remedy and supply the defects in the powers of the
prerogative court, with regard to the accountability of executors,
administrators and guardians." Sec. XIX provided that all final sentences
or decrees of the orphan's court, should be subject to removal, by
certiorari, into the supreme court, if applied for within three months. 1
The novel feature of this act was the provision therein made for the
protection and control of the estates of minors. Sec. IX aurthorized the
court to exact bonds from any executor, executrix, guardian or trustee,
having the care and trust of minors'
1 An appeal on matters of fact lay to the Governor (or Ordinary), and on
matters of law to the Supreme Court. Wood v. Tallman's Ex'r, Supreme Court,
1793, 1 N. J. L. (Coxe), 156. Cozens et ux. vs. Dickinson, N. J. Supreme
Court, 1809, 2 N. J. L. (Pen) 507; Burrough et ux. vs Mickle's Executor, N.
J. Supreme Court, 1812, 3 N. J. L. (1 South), 392; Sulard vs. Smalley,
Prerogative Court, 1824, MS, cited in 9 N. J. L. (4 Hal.) 70; Tenbrook vs.
M'Colm, N. J. Supreme Court, 1829, 10 N. J. L. (5 Hal.) 334-336; State vs.
Hanford, N. J. Supreme Court, 1829, 11 N. J. L. (6 Hal.) 73; Delany vs.
Noble, N. J. Court of Chancery, 1831, 3 N. J. Eq. (2 Gr.) 562; Van Pelt's
Executor vs. Veghte, N. J. Supreme Court, 1834, 14 N. J. L. (2 Gr.) 209;
Kirby vs. Coles, N. J. Supreme Court, 1833, 14 N. J. L. (2 Gr.) 576.
"In all the other cases in which a special jurisdiction is given to the
Orphan's Court under the act of June 13, 1820, such as decreeing further
security to be given by administators or guardians, or revoking their
letters, and on complaints under the 8th, 9th and 10th sections, and upon
the 12th, 13th, 19th and 20th relative to the division and sale of lands,
and upon the 30th respecting the final allowance of accounts, inall these
instances, being in nowise the subject of the Ordinary's jurisdiction, as
defined by the statute, nor any appeal given to him, the remedy after the
final sentence or decree of the Orphan's Court, is by certiorari out of the
Supreme Court," 4 Griffith's Law Register, 1198.
This provision as to certiorari remained the law until the adoption of
the Constitution of 1844, which provides (Art. VI, Sec. IV, Par. 3): "All
persons aggrieved by any order, sentence or decree of the orphan's court,
may appeal from the same, or from any part thereof, to the prerogative
court; but such order, sentence or decree shall not be removed into the
supreme court, or circuit court, if the subject matter thereof be within the
jurisdiction of the orphan's court."
[page lxxv]
estates, in certain cases. Secs. XI and XII authorized the
sale of lands to pay debts in certain cases, and for the support and
education of minors. Sec. XIII authorized the investment of minors' money
under the direction of the court. Sec. XIV provided for the partition of
minors' estates. Sec. XVIII provided for the appointment of guardians of
orphan minors, or of minors having no father.
"The name and idea of the Orphan's Court were borrowed, not from the
English ecclesiastical courts, but from a court called the Court of Orphans,
for a long time established in London and some of the other large cities of
England, and which, as its name imports, had jurisdiction over the estates
and persons of orphans only." 1
This corresponds in many respects with the provisions in the
Roman-Dutch law for Orphan Masters, and the powers exercised by the
Burgonmasters and Schepens of New Netherland, who sat as an Orphan's Court,
as described on pages xv-xix, ante.
By an act passed March 2, 1785, the Ordinary or Judge of the
Prerogative Court was authorized to order the imprisonment of any person
neglecting or refusing to obey any citations, or perform any sentence or
decree made by him, until the contumacious person should obey the citation,
or perform the sentence or decree.
1 Graham v. Houghtalin, Court of Errors, June term, 1893, 20 N. J. L. (1
Vr.), 562. This was a case where a father, as guardian by nature of his
minor children, obtained a decree of the Essex county orphan's court to sell
the lands of siad minors for their support, their father and mother having
the life estate, and they the remainder. The Court of Errors set aside the
sale on the ground that the children being minors, and not orphans, the
orphan's court had no jurisdiction; that the father, being guardian by
nature only, was not such a guardian as named in the statute. See also
Genealogy of the Doremus Family in America, by William Nelson, Paterson, N.
J., 1897, p. 77, for additional particulars of the case, which, however, are
very fully detailed in the opinion cited.
There is a "species of guardianship that is founded on the custom of
particular cities and buroughs, of which the custom of London is the most
remarkable. This, we are told, entitles the mayor and alderman, in their
Court of Orphans, to the custody of the person, lands and chattels of every
infant whose parent was free of the city of London (at least if he also died
within the city); and such custody lists, in the case of males, till
twenty-one; of females, till eighteen or marriage. It is said, however, to
be fallen into disuse." 2 Stephen's Com. on Laws of England, 327. See
also Pulling's Customs of London, 196; Co. Litt, 88 b.
2 Paterson, 157, Sec. 18.
[page lxxvi]
A Supplement to the Orphan's Court Act of 1784, passed March 22, 1786,
provided for the partition of lands devised to two or more devisees, by
three different persons to be appointed to the Orphan's Court of the county
where the lands so devised were situated. 1
The first general act in relation to the execution of wills was passed
November 16, 1795, being entitled "An Act concerning wills." This measure
was re-enacted in the revision of 1846, with very slight modifications, and
stands substantially unchanged today. 2
"An Act to regulate the Secretary's Office and the Prerogative Office
in the state, and for the faithful execution of th same," passed November
23, 1795, recites that there had been much negligence in recording wills in
the office of the Secretary of State, whence had arisen great confusion.
The act therefore provided that the Secretary and Register should give bond
for the faithful performance and execution of his duties, and subscribe an
oath for the proper discharge of such duties. It also required the
Secretary and Register to record with all convenient speed, legibly and
fairly, all papers coming to his hands, and which might appertain to his
office to record; also, to report quarterly to the Governor, and annually to
the Legislature. 3
"An act relative to guardians," passed February 1, 1799, prescribed the
duties of guardians, regulated their accounting to the orphan's court, and
authorized the guardian to sell the lands of the ward, adequate for his or
her maintenance and education, under the direction of the court. 4 This
took the place of Sec. XII of the Act of 1784.
1 Paterson's Laws, 77. Judge Griffith, in "Eumenes," calls attention to
the extraordinary character of this legislation, which vested in three
persons appointed by the court, the power which by the common law of England
had always resided in a jury, and notwithstanding the fact that Section XXII
of the Constitution of 1776 expressly provided "that the unestimable right
of trial by jury shall remain confirmed, as a part of the law of this
Colony, without appeal, forever," and Section XXIII required every member of
the Legislature to take an oath that he would no assent to any law which
should annul or repeal that part of the twenty-second section of the
Constitution respecting the trial by jury.
2 Paterson, 189; Rev. 223; R. S. 363; Gen. St. 3757.
3 Paterson, 193
4 Paterson, 347
[page lxxvii]
Executors or administrators were authorized to sell lands of their
testators or intestates, to pay debts of such testators or intestates, under
the authority of the orphan's court, by Sections XIX-XXIV of "An Act making
lands liable to be sold for the payment of debts," passed February 18, 1799,
which repealed Secs. XI and XII of the Orphan's Court Act of 1784.1
Another act, passed November 13, 1804, empowered the orphan's court to
decree the fulfillment of contracts for the sale of lands, made in the
lifetime of any testator or intestate, and to order the execution of a deed
therefor by the executor, administrator or legal representatives of the
deceased.2 The provision for the sale of lands of testators or intestates
for the payment of debts was extended by an act passed February 21, 1820, to
the part or parts of a share of propriety of undivided rights, or warrant to
locate any land, either in the eastern or western division of New Jersey,
under the direction of the Orphans' Court.3 "An Act concerning the estates
of persons who die insolvent," passed June 12, 1820, embodied a revision and
codification of previous statutes authorizing executors and administrators
to sell lands of their decedents only by direction of the Orphan's Court.4
"An Act concerning surrogates, and declaring what exemplifications of
wills and testaments shall be holden and received as good evidence," passed
June 7, 1799, required the surrogates to make quarterly reports in writing
to the register of the prerogative court, and to give bond to the State for
the faithful performance of their office, etc.5
An act was passed June 13, 1797, "for the distribution of the estates
of persons, who die, not leaving sufficient property to pay all their
debts," which provided that such estates should be distributed among the
creditors pro rata, after payment of the physician's bill, during the last
sickness, funeral charges, and judgments obtained and entered of record
1 Paterson, 372-373; Rev. 430. And see Bloomfield's Laws, 3-5
2 Bloomfield, 135; Rev. 524
3 Rev. 670
4 Rev. 766
5 Paterson, 397
[page lxxviii]
during the life of the decedent.1 This act was revised June 12, 1820. 2
1 Paterson, 435
2 Rev. 766
---------------------------------------------------------------------
XXVI - CHANGE IN THE SYSTEM OF RECORDING WILLS
Until 1804 it was the practice, no matter where or before whom wills
were proved, to send them to the Register of the Prerogative Court to be
recorded at Perth Amboy, Burlington or Trenton, as the case might be.
By an act passed November 9, 1803, a new system was instituted. It was
provided in the statute that the surrogate general should, at the expense of
the State, provide the several surrogates with seals, with one uniform
device. Up to this time it had been the rule to record all wills in the
office of the Register of the Prerogative Court, but this act provided that
wills, letters of guardianship and all letters testamentary and
administrations granted and issued by the surrogate, and also all
inventories by him received, should be him recorded in his office, which
records should have the same force, validity, and effect, as the like
records in the registry of the prerogative office. The original wills were
to be transmitted quarterly to the register of the prerogative court, to be
filed in his office. This continues to be the usual practice, but the
original jurisdiction of the Ordinary has remained. By this act the
surrogates were also vested with the powers of the Ordinary in the
appointment of guardians or persons under twenty-one years, subject to an
appeal to the prerogative court.3 Where suitable offices were provided for
the accommodation, surrogates were required to keep their books and records
therein, by an act passed December 1, 1804.4 It was made the dutry of the
register of the prerogative court, by an act passed November 25, 1808, to
keep an alphabetical index of testators, and to put up the wills of each
year and county by themselves; also to keep an index of intestates,
inventories of whose estates he might receive, and to file such
inventories.5 This act was embodied in a revision passed May 27, 1820.6
3 Bloomfield, 96
4 Ibid., 140; Rev. 525
5 Ibid., 203. These indexes, covering the period from 1765 to 1804, were
printed under the direction of the Secretary of State, in two volumes, in a
limited edition, in 1901 and 1902.
6 Rev. 728.
[page lxxix]
The orphan's court was given power, by an act passed March 1, 1804, to
appoint guardians of idiots or lunatics, and to direct the sale of their
lands for the payment of their debts, and the support of their households,
if they had any.1 This act was revised and amended, Feb. 28, 1820.2
Some later legislation may be briefly noted here:
Where commissioners appointed to divide lands between coparceners,
joint-tenants, tenants in common, guardians of minors or trustees, should be
of the opinion that the lands were so circumstanced that a partition thereof
could not be made without great prejudice to the owners of the same, the
court appointing them might order the commissioners or persons appointed to
make partition, to sell the lands and pay the proceeds to the parties
interested; the guardians of persons undert the age of twenty-one years,
entitled to a proportion of the moneys arising from any such sale, to be
required to give bond to the Governor.3
Where a debtor had made an assignment for the benefit of his creditors,
the assignee was required by an act passed February 23, 1820, to exhibit to
the surrogate of the county and inventory and valuation of the estate so
assigned, and enter into bond to the state for the faithful performance of
the trust; the surrogate was directed to endorse the receipt and said bond
on the deed of assignment, after which the same was to be recorded in the
County Clerk's office.4
"A Supplement to the act relative to dower," passed February 24, 1820,
gave the Orphans' Court jurisdiction in the appointment of commissioners to
set off dower, with an appeal to the surrogate-general. Where a husband
died seized of lands in two or more counties, the commissioners were to be
appointed by the Ordinary or Surrogate-General.5
1 Bloomfield's Laws, 117
2 Rev. 696
3 Act passed February 7, 1816. Rev. 598. And see act passed March 10,
1836 (Pamph. L. 1836, p. 395).
4 Rev. 674
5 Rev. 678.
REVISION OF THE ACT OF 1784
The act passed December 6, 1784, entitled "An Act to Ascertain the
Power and Authority of the Ordinary and his Surrogates, to
[page lxxx]
Regulate the Jurisdiction of the Prerogative Court, and to Establish an
Orphan's Court in the several counties of the State," and all the other acts
relating to the same subject, were revised and codified in a new statute
with the same title, passed June 13, 1820.1
In this revision the plural form was followed in designating "The
Orphans' Court," instead of the singular number, as in the original act.
Section 1 omits the provision extending the jurisdiction of the Ordinary to
marriage licenses. Section 4 provides that the Ordinary shall appoint but
one deputy or surrogate in each county, whos power and authority shall be
limited to such county. Section 6 of the old act, requiring the judges of
the Orphans' Court to take an oath of office, is omitted. Section 7 of the
new act authorizes the court to require security of guardians, and also to
demand new security where the court deems that previously given to be
insufficient. It omits the provision authorizing the Ordinary to grant
letters of administration. Section 8 extends to the guardians as well as
administrators the provision in Section 7 relative to security.2 Section 9
provides that upon the application of the surety of an administrator or
guardian the court may order an investigation of his accounts, and may
require security for the true payment of the balance remaining in his hands,
otherwise the court may revoke the letters of administration or
guardianship, and grant the same to other persons. Section 11 of the new
act regulates the investment of moneys by executors, administrators,
trustees or guardians, such investment to made under the direction of the
court, otherwise the executor, etc., shall be accountable for the interest
that might have been made thereby; where they make use of the money of
minors, the guardians shall be accountable for interest and principal.
Sections 13-19 incorporate the provisions of the former act3 relative to the
partition
1 Rev. 776
2 A supplement, passed March 6, 1828, makes it the duty of the court to
remove executors, guardians, etc., who neglect or refuse to give security,
when required by the court, and to appoint new executors, guardians, etc.,
who shall give security. The executors, guardians, etc., removed shall
immediately deliver to their successors all goods, moneys, etc., they may
have held, and in case of failure to do so may be sued for the same. Pamph.
Laws, 1828, p. 192; Elmer's Digest, 368.
3 Passed March 22, 1786. Paterson, 77.
[page lxxxi]
of lands of coparceners, etc. Section 20 provides for sales
of lands to satisfy judgements by authority of the Orphans' Court, as under
the act of February 18, 1799. Section 21 provides that the Surrogate for
each county shall take depositions to wills, administrations, inventories,
and administration bonds in cases of inestacy, and issue thereon letters
testamentary and of administration; cases of dispute to be heard by the
Orphans' Court, subject to an appeal to the Prerogative Court. Section 26
authorizes the Ordinary or Surrogate General to cause any guardianship bond
to be prosecuted in a court of record, etc. Section 27 provides "that the
powers and duties formerly exercised and performed by the Ordinary, relative
to the administration of guardians, for persons under the age of twenty-one
years, shall hereafter be exercised and performed by the Orphans' Court of
the county in which the minor applying for a guardian may reside, or shall
have real or personal estate, subject, however, to an appeal to the
Prerogative Court.... Provided, that nothing in this act shall be construed
to prevent the Ordinary or Surrogate-General, in person, from granting
probates of wills, letters of administration and letters of guardianship,
from the prerogative office, in cases where a convenience will arise from
doing the same." Section 28 provides for the appointment of guardians of
orphans of the age of fourteen years and upwards, on petition of to the
Orphans' Court, signed by such orphans in the presence of the surrogate; and
for the appointment of guardians of orphans under fourteen years of age,
upon the petition of a mother, or next of kin, etc. Section 29 provides
that the surrogate shall audit and state the accounts of executors and
administrators, guardians and trustees, and report the same to the Orphans'
Court. Section 31 provides that any executor, administrator, guardian or
trustee, accounting, may be examined by the court under oath; the same
section provides for the allowance of commissions. Section 32 provides that
the sentence or decree of the Orphans' Court on the final settlement and
allowance of such accounts shall be conclusive upon all parties, except in
cases of fraud or mistake. Section 38 provides that
[page lxxxii]
executors, etc., shall produce receipts and discharges for the payment of
legacies, etc., duly acknowledge, which shall be recorded by the surrogate
in a book provided for the same. The other provisions of the act were
almost precisely the same as in the orignal acts.1
It will be noticed that this act discloses a distinct purpose to
transfer from the Ordinary or Surrogate-General to the surrogates, and from
the Prerogative Court to the Orphans' Courts, much of the jurisdiction
formerly vested exclusively in the former. This is particularly apparent in
Section 27, althought the jurisdiction of the Ordinary is expressly reserved
by the proviso added to the section. Section 23, which authorizes the
surrogates to issue letters testamentary and letters of administration,
provides: "and the said probate of wills and letters of administration shall
have the same validity and effect as probate of wills and letters of
administration issued by the register of the Prerogative office, in the name
of the Ordinary or Surrogate-General, with the seal of the office affixed."
The scope of this Revision of 1820 was carefully reviewed in the matter
of Abraham Coursen's will, by the Ordinary, in 1843,2 with the conclusion
that "the Ordinary has the same original and appellate powers now that he
ever had. He has never been deprived of these powers by any act of the
Legislature in fact; leaving out of view, the question whether an act of
that kind would be constitutional."3 It was the view of the writer in
Griffith's Law Register that the Ordinary had original jurisdiction in
regard to the granting of probate of wills, etc.4
1 Revision, 1821, p. 776; Elmer's Digest, 1838, p. 362
2 See pages xivi-xivii, ante.
3 N. J. Equity Reports (Gr. Ch.), 410
4 Griffith's Law Register, IV., 1197.
---------------------------------------------------------------------
XXVII - THE APPOINTMENT OF SURROGATES
A remarkable encroachment of the prerogatives of the Ordinary in the
matter of appointment of surrogates was made by the Legislature in 1822,
when that body assumed the power which previously had been always exercised
by that functionary. An act passed November 28, 1882, provided:
[page lxxxiii]
"The surrogates of the several counties shall be appointed by
the joint meeting,1 and hold office for five years, unless sooner removed
according to law. Vacancies shall be filled by the Governor until the next
session of the legislature, when his successor shall be appointed by the
joint meeting for five years."2 A measure of this kind, passed at the
present day, would be interpreted by the average citizen as simply a "grab"
for the "spoils of office." There was no reason to believe that the
Legislators of 1822 were above the human weaknesses of their successors. It
is possible that the act was intended as a step in the direction of popular
government, in vesting the appointment in the representatives elected by the
people, instead of in the Ordinary, who was himself appointed by the
Legislature in joint meeting. A more pronounced step in that direction was
taken in the constitution of 1844, which provides that the surrogates of the
several counties shall be elected by the legal voters of the counties
respectively and shall hold office for five years. They are subject to
removal only by impeachment.
An act passed December 12, 1825, authorized "the Surrogate- General,
upon the written application of a majority of the judges of the Orphans'
Court of the county, supported by affidavits, to remove any surrogate
incapacitated by mental derangement, insanity or great debility of mind,
from propertly performing the duties of his office, and to appoint some fit
person to perform such duties during such incapacity, or until the next
meeting of the Legislature."3
1 Of the two houses of the Legislature
2 Pamph. Laws, 1822, p. 96
3 Pamph. Laws, 1825, p. 122
FOREIGN WILLS
Foreign wills those made beyond and disposing of property within, the
Colony had been recognized as least as early as 1686, as in the case of
Edward Baker, already cited.4 It is true that in a sense this was not a
foreign will, being within the jurisdiction of the Archbishop of Canterbury.
But on September 9, 1776, in the new State of New Jersey, a certified copy
of the will (dated October -----, 1772) of Peter Sonmans,
4 Page xli, ante. And see also page xiii.
[page lxxxiv]
as recorded in Philadelphia, was produced, and letters of
administration with the will annexed were granted thereon, under the
Prerogative seal.1 By an act passed December 9, 1825, foreign wills were
authorized to be filed or recorded in the prerogative office of this State,
or in the office of the surrogate of any county, such wills to be of the
same force and effect as if the probate thereon had been granted by the
Ordinary or Surrogate of the county.2 The scope of this act was two-fold:
it preserved the record in New Jersey of the disposition of property within
the State by the wills of non-residents; and it also placed the office of
Surrogates in this matter upon a parity with that of the Ordinary.
1 Lib. No. 16 of Wills, p. 505
2 Pamph. Laws, 1825, p. 108
MISCELLANEOUS ACTS
Another act passed December 9, 1825, provided that citation or process
of attachment issued out of the orphans' court might be served or executed
by the sheriff of the county upon any person or persons residing without the
county, but within the state.3
By and act of February 19, 1830, the Ordinary was authorized, where he
had been interested in a case, to call to his assistance one of the justices
of the Supreme Court to sit and advise with him on the hearing or argument
of such case.4
Any oath, affidavit or affirmation required to be made or taken to use
before any surrogate or any orphan's court, was authorized to be made and
taken before the surrogate, by an act passed February 21, 1840.5
A seemingly unnecessary bit of legislation was an act passed February
25, 1842, authorizing the orphan's court and the county courts to adjourn
from any day in the term to any subsequent day in the next term, but for not
more than one week.6 Probably the point had been raised that the court
could not adjourn to a day beyond the term.
An important change in the practice was made by an act passed February
22, 1843, which provided that where a decree of the orphans' court on the
final settlement or allowance
3 Pamph. Laws, 1825, p. 100
4 Pamph. Laws, 1830, p. 54
5 Pamph. Laws, 1840, p. 55
6 Pamph. Laws, 1842, p. 76
[page lxxxv]
of the accounts of executors, etc., or any final decree of
such orphans' court should be reversed and vacated or set aside by the
Supreme Court on certiorari, the latter court (instead of sending the matter
back for the action of the lower tribunal) might direct their clerk to audit
and re-state the accounts, and might grant a decree thereon in the same
manner as the orphans' court might have done. The act also provided that if
any minor or minors should become seized or possessed of, or entitled to any
real or personal estate in the lifetime of the father of such minor or
minors, the Ordinary or Surrogate-General, or the orphans' court, might
appoint the father or other suitable person or persons, guardian or
guardians of the estate of such minor or minors.1
1 Pamph. Laws, 1843, p. 84.
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XXVIII - PROPOSED REVISION OF THE ORPHANS' COURT ACT
The inadequacy of the Revision of 1820 was speedily recognized by the
Bench and Bar, and in response to a very general demand for an improvement
in the procedure in the Prerogative and Orphans' Courts the Legislature
adopted a joint resolution, February 6, 1833, authorizing the Governor to
appoint "some fit and discreet person, learned in the law, to amend, revise
and adjust all acts, parts of acts and supplements relating to the Ordinary
and his surrogates, and the Orphans' Court, and the practice and proceedings
in all matters severally cognizable before them, or which of right ought so
to be, and report at the next sitting of the Legislature."2 Under this
resolution the Governor, in April, 1833, selected Joseph W. Scott, of
Somerset County, one of the ablest lawyers of the day, to prepare the report
and revision in question. Col. Scott made his report February 8, 1834, and
it was printed in a pamphlet of one hundred pages or more. It comprised an
able and exceedingly interesting review and history of the Prerogative Court
and the Orphans' Court, and of their procedure and practice, from early
times. It also embraced a proposed revision and codification of the several
statutes relating to those courts, and the subjects within their
jurisdiction, and incorporated some radical amendments to the existing laws.
2 Pamph. Laws, 1833, p. 165
3 The only copy of this document which the writer has ever seen was
destroyed in the Paterson fire, February 9-10, 1902, when his law library
was consumed. What he has said of it above is entirely from recollection.
[page lxxxvi]
The changes suggested seem to have been too numerous and too
pronounced to meet with the favor of the Legislature. Accordingly, the
whole subject was allowed to remain in abeyance until the adoption of the
new constitution of the State, in 1844.
XXIX - THE CONSTITUTION OF 1844
By that instrument (Art. VI, Sec. I.) the Prerogative Court was made
one of the constitutional coursts: "The judicial power shall be vested in a
court of errors and appeals in the last resort in all causes as heretofore;1
a court for the trial of impeachements; a court of chancery; a prerogative
court; a supreme court; circuit court," etc.
Whereas formerly the Governor, appointed annually by the Legislature in
joint meeting, was also Chancellor, Ordinary and Judge of the Prerogative
Court, which practically made only lawyers eligible to the office of
Governor, the new constitution prvided that the Chancellor should be
nominated and by and with the advice and consent of the Senate appointed by
the Governor, for the term of seven years; and that the Chancellor, so
appointed, should be the Ordinary, and Judge of the Prerogative Court.
1 In 1846 an appeal was taken from a decree of the Ordinary to the Court
of Errors and Appeals, but the latter Court held that it had never possessed
or exercised such jurisdiction, and had acquired no new powers by the
Constitution of 1844. The subject received a new aspect when the
Legislature passed an act approved February 17, 1880, expressly authorizing
an appeal to be taken from the Prerogative Court, and this was held to be
constitutional, as not being an infringement upon or a reduction of the
powers or jurisdiction of the latter court, but merely an enlargement of the
powers of the Court of Appeals. Pamph. Laws, 1869, p. 84. See Anthony v.
Anthony, Court of Errors and Appeals, 1846, 5 N. J. Eq., 627; Harris v.
Vanderveer's Exrs., same Court, 1869, 21 N. J. Eq., cited on p. xivi, ante,
note.
THE REVISIONS OF 1846, 1874 AND 1898
The numerous changes made by the constitution of 1844 made imperative a
general revision of the statutes. This was entrusted to a commission, of
whom Henry W. Green, subsequently Chief Justice, and later Chancellor, and
ex-Governor Peter D. Vroom are understood to have been the most active
members. Their revision and codification of the statutes was enacted into
law by the Legislature, by a series of acts approved April 16, 1846, and
known as the Revised Statutes, and of course embraced a revision and
amendment of the laws relating to the Prerogative Court and the Orphans'
Court.2
2 Revised Statutes, Trenton, 1847, pp. 203, 212; Revision of 1877, p.
220.
[page lxxxvii]
The session laws since 1846 are within the reach of everyone desiring
to consult them. Hence it is unnecessary to continue this historical review
further. It may be noted, however, that the statutes on these subjects were
again revised, though very slightly, in 1874, when the title of the Orphans'
Court Act of 1874 was altered, to read: An Act respecting the Orphans'
Court, relating to the powers of the Ordinary, the Orphans' Court and the
Surrogates," approved March 27, 1874.1
A very careful, comprehensive and most admirably drafted revision of
the Orphans' Court Act was enacted in 1898, entitled "An Act respecting the
Orphans' Court" (Revision of 1898).2
1 Revision, 1877, p. 745; Gen. Statutes, 1895, p. 3757.
2 Pamph. Laws, 1898. The act is set forth in full, with notes of
decisions, forms, etc., in "New Jersey Orphans' Court Practice," etc., by
Charles F. Kocher, Newark, 1902, 8vo, pp. 580.
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XXX - THE PREROGATIVE SEAL
There is reason to believe that there were a seal of the Colony, and
seals of the Colonial Courts, in use in the administration of Gov. Philip
Carteret, but they are not known to exist, and no impression of the court
seals of his time has come down to us. The Proprietors of East Jersey were
distinctly religious, and expressed their reverence for the Almighty on
every suitable occasion. Their seal, adopted in 1682, bears the legends,
"Righteousness exalteth a Nation," and "Tis God giveth the increas." The
earliest impression of the Prerogative seal that has been found is affixed
to a certified copy of the will or codicil of Thomas French, "being with the
said original Examined this Third of May Anno Dom 1699 As witness hereunto
my hand & seale of office." The document is signed by Tho. Revell,
Secretary and Register, and bears a very fine, clear impression of the
Prerogative seal in red wax.3 Another fair impression of the Prerogative
seal is found affixed to letters of administration granted July 21, 1700 to
William Malcolm, of Philadelphia, principal creditor, on the estate of John
Haughton, late of Mannington, Salem county, West Jersey, "by the justices of
West Jersey, sitting as the Court at Gloucester, and given under the hand
and seal of the Register's office at Burlington."4
3 Unrecorded Wills in Secretary of State's office, Lib. No. 2, p. 257.
4 Ibid., p. 374
[page lxxxviii]
** Note - this page, and the next, deals with describing
Prerogative seals of 1699, 1765 and 1801, which are reproduced on the facing
page, are not included with this transcript.
A reproduction of the seal attached to the former document (1699) is
given herewith. The design is not heraldic, nor is any attempt at blazonry
apparent. It is evidently a conventional representation of the globe, with
its embracing great circles and bands. The legend unmistakably reads: THE
EARTH IS THE LORDS AND THE FVLNESE THEREOF. The sentence is undoubtedly
from the first line of Psalm xxiv; "The earth is the Lord's and the fulness
thereof." This is the reading of all the English versions in use in
Scotland and England at the date of this seal not only the authorized
version of King James, 1611, but the Genevan or Breeches bible, 1560, and
the Cranmer bible of 1539. This seal is an inch and one-sixteenth in
diameter. There are no punctuation marks between the words.
When Lord Cornbury became Governor of New Jersey and appointed Thomas
Revell Register of the Prerogative Court, February 28, 1703-4, it is
probably that the latter procured a new seal. A fair impression of the
Prerogative seal used under the Royal Governors is found affixed to letters
of administration granted January 10, 1765, to Anna Wetherell, on the estate
of Thomas Wetherell, late of Salem county, deceased. This seal is an inch
and an eighth in diameter. The design is the same as that of the impression
of 1699, but there is a punctuation mark after each word, and a fleur de lis
at the end. The inscription is enclosed between raised lines, and reads:
THE EARTH IS THE LORDS AND THE FVLNESE THEREOF.
After Governor William Franklin was deported from New Jersey, in June,
1776, by order of the Continental Congress, the official seals of the
Province were missing. For a time Governor William Livingston, the
Executive of the new State, affixed his private seal-at-arms to public
documents, in the absence of a great seal of the State, and indeed this was
expressly authorized by the Legislature until such time as a new seal could
be procured. He stretched his authority so far as to attach his private
seal to letters of administration granted on the estate of David Tichenor,
in 1778.1 Similar letters granted to
1 Original is in the Library of the New Jersey Historical Society.
[page lxxxix]
the executors of Samuel Sherry, late of the county of Salem,
in 1779, have no seal affixed. On January 31, 1783, letters of
administration were granted to Sarah Miller, on the estate of Peter Miller,
by William Livingston, Governor, and for the lack of any other convenient
seal, they are issued under that of the Supreme Court. This was very
similar to the old seal, but was a trifle larger. A brilliant impression of
the new seal is found attached to the certificate of probate of the will of
Christeen Kitts, late of Salem county, under date of March 7, 1801. This
seal is an inch and three-eighths in diameter, or a quarter of an inch
larger that its immediate predecessor, and five-sixteenths of an inch larger
than the Colonial seal of 1699 and earlier. The design is the same as both
the former seals, except that the broad dexter curved band crosses the
circle of the equator more to the west of the meridian than in either of the
others, and does not fully touch the periphery of the globe. The words of
the legend are separated by punctuation marks as in the case of the
impression of 1765, but the fleu de lis at the end has shrunk to a merely
conventional figure. The greatest change, however, is in the substitution
of the EVENESE for FVLNESE, so that the legend is: THE EARTH IS
THE LORDS AND THE EVENESE THEREOF. The
engraver has copied from a faint impression in which the first syllable of
the word in question, FVL, appeared to be EVE. This readily accounts for
the mistake in the legend, for that it is an error is beyond question. This
is the seal which has been in use in the Prerogative office for than a
hundred years, until now it is barely legible. No authority has been found
for the use of this seal, nor has it been discovered when it was engraved.
It seems to have been conceded that one of the inherent powers of a court
was to adopt a seal, and that has been done by the Prerogative Court, as
well as by the other tribunals of New Jersey, from the earliest times, and
without express legislative sanction.
END
Transcription Completed October 31, 2002
David W. Tourison
Sheridan, Wyoming
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