Wills: Part I - EARLY WILL MAKING IN NEW JERSEY, 1670-1750, by William Nelson. Contributed for use in USGenWeb Archives by David Tourison. USGENWEB ARCHIVES NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. Persons or organizations desiring to use this material, must obtain the written consent of the contributor, or the legal representative of the submitter, and contact the listed USGenWeb archivist with proof of this consent. The submitter has given permission to the USGenWeb Archives to store the file permanently for free access. http://www.usgwarchives.net/nj/njfiles.htm ____________________________________________________ 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 15-30 are in Part II] 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 ____________________________________________________ [page ix] I - PRIMITIVE IDEAS OF PROPERTY The evolution of mankind from primitive savagery to barbarism, from barbarism to semi-civilization, and so to fuller civilization, has been marked at every step through the toilsome ages by a departure from the ideas of tribal, or communal, or family ownership, to the conception of individual property, whereby the industrious, the thrifty, the capable, has been assured of the right to possess and enjoy that which he has acquired. As that profound student and keen observer, Morgan, puts it, basing his conclusions chiefly upon his researches among the American Indians, who present to us a picture of primitive society in the states of savagery and of barbarism: In the development of society there were two great stages – "firstly, changing descent from the female line, which was the archaic rule, as among the Iriquois, to the male line, which was the final rule, as among the Grecian and Roman gentes; and, secondly, changing the inheritance of the property of a deceased member of the gens, from his gentiles [blood-kin], who took it in the archaic period, first to his agnatic kindred, and finally to his children."1 Sir Henry Maine, also, concludes that the earliest ownership of land was in the community, rather than in the individual, although the periodical redistribution of the land among families has been a very general custom among Aryan peoples from the earliest times. The village system, which prevails to this day among the Hindus, and which seems to have existed among Teutonic peoples to well within the historic period, was evidently derived from the primitive idea of tribal or community ownership, but at least in its later stages undoubtedly recognized individual 1 Ancient Society, by Lewis H. Morgan, New York, 1878, p. 64. [page x] proprietorship to a larger extent than has been generally appreciated or admitted by students, even one so thorough as Maine.1 1 Village Communities in the East and the West, by Sir Henry Maine, pp. 82, 107, 165; Wilson's History of India, I., 415-420. THE DESCENT OF PROPERTY As a natural outgrowth of the idea of individual ownership, or property, there followed the concession of the right, or at least the propriety, of keeping one's own property in one's own family, even after death; and by an easy step forward, the propriety of having the ancestor's possessions descend to his children. This, of course, was a long step from the archaic period, represented in primitive American society, when descent was in the female line. When property came to descend in the male line it is reasonable to suppose that the community, or at least the family, saw to it that the property was distributed among the sons, in such a manner as to make the best use of it for the community at large. This appears by many of the ancient Hindu laws regulating descent, as will be shown presently. The earliest written laws known to us make no provision for the testatmentary disposition of property, but carefully regulate its distribution at the owner's decease. SEMITIC LAWS OF DESCENT Among Semitic peoples we have that remarkable Code of Hammurabi, King of Babylon, cir. 2200 B.C., the oldest body of law that has come down to us. Of the two hundred and eighty-two sections of the Code there are twenty (165 to 184) prescibing the manner in which a man's property may be distributed by him in his lifetime, and how it shall descend at his death. Nowhere is he authorized to dispose of it by will, nor to disinherit a son, even in his lifetime, except with the approval of a court, after due investigation. By the Hebrews, while at first the system of tribal ownership was recognized the inheritance of the first-born son was soon insisted on, and failing male issue the descent was in the female line.2 2 Leviticus, xxv, 46; Numbers, xxvi, 52-56; xxvii, I-II; xxxvi; Deuteronomy, xxi, 15-17. [page xi] The Koran carefully sets forth the manner in which a man's estate shall be distributed, making wise provision for his children, and failing issue, then for his next of kin, in which we see indications of the primitive customs of the Arabians.1 1 Sura IV, 8, 12-15. J. M. Bodwell's edition, London, 1876, is excellent, the chronological arrangement of the Suras being a desirable feature; but his translation is less accurate than that of E. H. Palmer, Oxford, 1880. _________________________________________________________________ II- ARYAN LAWS OF INHERITANCE Among Aryan peoples, the oldest literature we have is that of the Hindus, as embodied in the Vedas, a great collection of religious hymns. Upon these have been grafted an infinite variety of religious, philosphical, sociological and legal commentaries, which have developed into systems and codes, in turn the subject of yet other commentaries. Perhaps the earliest of these outgrowths of the Vedas are the Laws of Manu, probably dating back at least 1000 B.C. According to his Laws (IX, 104-118), on the father's death the oldest son was required to support the family, and the brothers to endow their sisters. Gautama's "Institutes of the Sacred Law," dating far back toward the times of the Vedas, also provide for descent to the sons, with some modifications according to circumstances.2 The Vasishtha Dharmasatra (of certain proportions according to the mother's caste, while the daughters "divide the nuptial present of their mother."3 Apastamba's "Aphorisms of the Sacred Law," compiled cir. 500 B. C., declare that a man "should during his lifetime, divide his wealth equally among his (capable)sons," failing which the inheritance might go to a daughter. He explains away the ancient Vedas in favor of primogeniture, and the statement that "Manu divided his wealth among his sons."4 The "Law of Inheritance" as explained by Brihaspati (cir. 1 B. C.) is much the same as that given by Aspatamba, as might be expected, he following closely the 2 The Sacred Laws of the Aryas, translated by George Buhler, Part I, Oxford, 1879, pp. 250-307 3 Ibid., Part II, Oxford, 1882, pp. 84-92 4 Ibid, Part I, pp. 132-135. [page xii] ancient code of Manu.1 The Naradasmriti (cir. A.D. 350-450) makes many modifications in the earlier codes, and virtually abrogates the right of primogeniture by declaring that even the youngest son may undertake the management of the family property, if specially qualified for the task, and that the mother shall share equally with the sons, and an unmarried daughter take the same share as a younger son. The "Thirteenth Title of Law" in this work, fifty-two sections, is devoted entirely to the "Law of Inheritance."2 In the Institutes of Vishnu (cir. A.D. 400) the laws of inheritance are strictly defined, the general principal being that "among the sons each preceding one is preferable to the one next in order, and takes the inheritance, and maintains the rest," including those incapable of self-support.3 The Baudhayan (cir. A.D. 1100) contains elaborate regulations for the distribution of the inheritance (I, 5, 11, 11-14; II., 2, 3, 1-53), a preference being allowed to the eldest son, the other sons sharing equally, the sons of the mothers of different castes, however, taking according to the order of the castes.4 It is doubtless true, that many of these elaborate laws were rather an expression of ideals than legislation actually in effect, but many of the customs or systems they represent, after being handed down for thousands of years, from the misty times of the Vedas, exist to-day in the "village communities" of Indian, which are so widespread and interesting a feature of that strange country, and which have preserved through all the ages much of the thought and practice of primitive times.5 This imperfect summary of the earliest laws of inheritance suffices to show the importance attached to the subject by the Semitic and Aryan precursors fo the European races, and the [page xiii] usages forming the foundation for Grecian, Roman and Teutonic legislation on the subject. 1 The Minor Law-Books (Narada, Brithaspati), translated by Julius Jolly, Oxford, 1889, pp. 9, 272-8, 369-385. 2 Ibid, 9, 188-200 3 The Institutes of Vishnu, XV-XVIII, translated by Julius Jolly, Oxford, 1880, pp. 61-74 4 The Sacred Laws of the Aryas, ut supra, Part II, pp. 224-230 5 For a word of comment on the Hindu laws, see Max Muller's "Origin and Growth of Religion," New York, 1879, p. 143. See also "Studies in History and Jurisprudence," by James Bryce, Oxford, 1901, pp. 97-101. [note - the word 'Jurisprudence' above is misspelled in the book as 'Jrisuprudence.'] --------------------------------------------------------------------- [page xiii] III - ROMAN TESTAMENTARY LAW Without attempting to trace the transition from primitive customs of inheritance or descent to the more artificial systems of testamentary disposition of property we may pass at once to the Roman law on the the subject, the history and character of which are indicated in the summary given in the Institutes of Justinian, compiled in the sixth century A. D., wherein it is related: "Two kinds of testatments were formerly in use: the one was practiced in times of peace, and named calatis comitis; because it was made in a full assembly of the people; and the other was used, when the people were going forth to battle, and was stiled procinctum testamentum. But a third species was afterwards added, which was called per œs et libram, because it was effected by emancipation, which was an alientation, made by an imaginary sale in the presence of five witnesses, and the libripens or balance-holder, all citizens of Rome, above the age of fourteen; and also in the presence of him, who was called the emptor famileae or purchaser.1 The two former kinds of testaments have been disused for many ages; and that, which was made per œs et libram, although it continued longer in practice, hath now ceased in part to be observed. "The three kinds of testaments before mentioned all took their rise from the civil law; but afterwards another species was introduced by the edict of the praetor; for, by the honorary or praetorian edict, the signature of seven witnesses was decreed sufficient to establish a will without any emancipation or imaginary sale; but this signature of witnesses was not required by the civil law. 1 Before the time of the Decemvirs (cir. 450 B. C.) a Roman citizen declared his wishes regarding the disposal of his property after his death, to the assembly of the thirty curiae or parishes – a relic of tribal or gentile government. By the Twelve Tables the private testatments of the father of a family were authorized. He "promulgated his verbal or written testament in the presence of the citizens, who represented the five classes of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money, which was paid by an imaginary purchaser, and the estate was emancipated by a fictitious sale and immedate release." See Gibbon's admirable discourse on the Civil Law, Chap. xiv, of his "Decline and Fall of the Roman Empire;" Livy, Lib. iii, caps. 33-35. [page xiv] "When the civil and praetorian began to be blended together partly by usage, and partly by emendation, made by the imperial constitutions, it became an established rule, that all testatments should be made at once and the same time according to civil law; that they should be sealed by seven witnesses according to the praetorian law, and that they should also be subscribed by the witnesses, in obedience to the constitutions. Thus the law concerning testaments seems to be tripartite: for the civil law inforces the necessity of having witnesses to make a testament valid, who must all be present at one and the same time without interval; the sacred constitutions ordain, that every testament must be subscribed by the testator and the witnesses; and the praetorian edict requires sealing, and fixes the number of witnesses. "What we have already said concerning written testament, is sufficient. But if any man is willing to dispose of his effects by a nuncupative treatment; i. e., by a testament without writing, let him be assured, if, in the presence of seven witnesses, he declares his will by word of mouth, that such verbal declaration will be complete and valid testament according to the civil law."1 1 Justinian's Institutes, Lib. IL, Tit. X., 1, 2, 3, 14. Private Law among the Romans, from the Pandects, by John George Phillimore, London, 1863, pp. 328-416. [page xiv] THE ROMAN-DUTCH LAW IN NEW NETHERLANDS The civil law codified in Justinian's time was somewhat modified in Western Europe, and in Holland a new code (a "Political Ordinance") was adopted in 1580, elaborating and defining the Roman-Dutch Law. According to this system wills could be made orally, or in writing. Orally, or by word of mouth, by expressing one's wishes as to the disposal of the property, to an alderman and the secretary of the local court, or to a notary in the presence of two witnesses, whereupon the notary reduced the will to writing, and it was then signed by the testator and the witnesses, and the notary made a record of the transaction in his official minutes. In Writing, which having been signed and sealed was handed to a notary in the presence of two witnesses, the testaor [page xv] at the same time, in their presence, declaring it to be his testament. The notary endorsed it accordingly, and made a minute in his records, which was signed by the testator and the witnesses. The notary also kept the original will in his custody, to be produced only on the death of the testator. No public record of wills was required, or authorized – a fact causing untold regret on the part of persons who have vainly sought for data of their Dutch ancestry in Holland. The wills and the records of their execution and attestation were kept by the notary who reduced them to writing, and by his family afterwards. The notary being a public, judicial officer, his action in the matter of wills was regarded as equivalent to the proof and probate required in English courts.1 1 Van Leeuwen's Roman-Dutch, sub Testamentum. --------------------------------------------------------------------- [page xv] IV - SOME DUTCH WILLS AND ADMINISTRATIONS The Roman-Dutch law carefully guarded the rights of infants, and of intestates, and in the government of New Netherland the Director-General and Council of the Colony exercised jurisdiction in such matters, the same being afterwards delegated to the Burgonmasters and Schepens, who sat as an Orphan's Court. In 1656 Orphan Masters were appointed, to take cognizance of the rights of minors. From the records of this body the following extracts are taken, as illustrating in some measure the manner of making wills, the administration of estates, and the protection of the interests of orphans: 1657, January 20. "Govert Loockermans and Pieter van Couwenhoven, guardians over the infant children of Jacob van Couwenhoven and his deceased wife Hester Jansen, appearing produced a testament, made by said Hester Jansen, dec'd, and Jacob van Couwenhoven, before Notary D. v. Schelluyne and witnesses April 20, 1653, also evidence of the property left by their mother to the children, sworn to by Couwenhoven before Notary October 2, 1655, and an inventory of the children's jewels and clothing. They request that pursuant to the custom of our Fatherland the money of the children may be deposited with the Orphan chamber or put out on mortgage, so that they might not be prejudiced in their rights. Considering the request [page xvi] reasonable, the Orphan-masters provisionally order, that the testament and the proof of property shall be recorded in the Secretary's office, and whereas Couwenhoven is at present not in good health, that he ahsll be spoken to about it."1 1656, May 5. "Whereas Cornelis Groesen and his wife Lysbet N. have come to their death during the latest disaster with the Indians, and it is reported that they have left some goods at the house of Jan Schryver, the tailor, therefore the Orphanmasters P. Leendertsen van die Grift and Pieter Wolf. van Couwenhoven, having deemed it advisable, so that the children, now captives of the Indians, when they return, may have benefit of them and debtors as well as creditors may come to their rights, this inventory was taken by the Orphanmasters in the presence of the Deacons of this City on the 20th of April 1656, as more fully appears by the record of inventories, and as some goods were found which would be of no use to the children, and as money is required to ransom them and to pay outstanding debts, the Orphanmasters have decided to sell to the highest bidder at auction the moveable goods, which was done on May 4th, 1656, and recorded May 5th. Agreeably to the notice affixed, everybody is notified, that if he has anything to claim from the estate left by Cornelis Groesen, dec'd, he must report it between to-day and next Monday, May 8th, to the Secretary of this City, Jacob Kip, with specications and proofs, under the penalty of being debarred from his claim in the future."2 1657, November 28. "Whereas, Roelef Jansen, mason, has died at the house of Arent Lauwerensen, on the 16th of this month of November, 1657; and whereas said Arent Lauwerensen by a petition to the Burgomasters and Schepens of this City has requested that they would please to direct and authorize one or two persons to sell at public auction to the highest bidder, according to inventory, the property left by said Roelof Jansen, that thus might be paid the expenses of his funeral, his house rent and other known and unknown debts, Therefore their said Worships order the Orphanmasters to 1 Minutes of the Orphan Masters of New Amsterdam, 1655 to 1663, translated and edited by Berthold Fernow, New York, pp. 12-13. 2 Ibid, 15-16. [page xvii] enter upon said estate and to do therewith what ought to be done, and they herewith authorize and direct Sieur Mattheus de Vox, Notary Public, and Arent Lauwerensen to have the estate sold at auction by the Secretary of the Burgomasters and Schepens, as well as of the Orphanmasters, whereby the debts, as above stated, shall be paid, and the surplus handed to them to dispose of as they shall find best."1 1657, December 12. "Anna Claas, with Sieur Mattheus de Vos, Notary Public, and with Arent Lauwerensen, administrator of the estate of Roelof Jansen, mason, dec'd, appoeared and proved by the affidavits of two credible persons that said Roelof Jansen, dec'd, had given her in his lifetime his everyday clothing, his gun, powderhorn and what be longed to it; she also produceds an account for house rent, for caretaking and money advanced, amounting to 99 fl.18 st., wherein are included 7 beavers, the balance being in wampum, She requests that the affidavits and the account may be approved. The orphanmasters approve the affidavits and account, ordering their Secretary to pay the account, after deducting what the husband of said Anna Claas has bought from the estate."2 January 11, 1658. "Appeared C;ass Bordingh and Pieter Jacobsen, administrators and guardians of the estate of Anna Cornelis and of her son Jacob Jacobsen, who produced the inventory of as much as they could find of said estate, and stated that as part of the goods were missing they could do no more. Lauwerens Lauwerensen and Jacob Jacobsen appeared, and Laurwerens was informed that the following customs and laws of the Fatherland it had been considered necessary to appoint administrators for the estate of Anna Cornelis, dec'd, and that much of it was missing. He answers, that over 400 fl. were paid for funeral expenses, and if anything is missing he does not know where it is. The Orphanmasters order Lauwerns Lauwerensen to give a satisfactory account of the administrators and to make an agreement with them; also that the missing property shall be offset by the funeral expenses; 1 Ibid, 38-39 2 Ibid, 41-42 [page xviii] the administrators were to dispose of the goods to the best of advantage of the estate and benefit of Anna Cornelis' son."1 1658, April 2. "Whereas, Bruyn Barenzen, late cooper at Breuckelen, has died at the house of Mighiel Jansen on the 12th of February of this year 1658, therefore the Orphanmasters of this City of New Amsterdam request and commission Jan Eversen Bout with Mighiel Jansen to administer upon the estate left by said Bruyn Marenzen, to sell his goods at public auction, and to inform the Orphanmasters of the amounts received."2 1659, April 9. "Catalyntje, the wife of Joresy, coming in says that a man called Abraham Jansen van Salee, alias the Turk, who had lived at her house, was dead, having made a testament whereby he has devised his property to the negro-woman and child he has had by her, Joresy having been named executor. She says the Deacons of the City have attached and seized the property, and she had been to the Director-General, who had referred her to the Orphanmasters. As the domicile is not within this jurisdiction the case was not taken up by this Board, but again referred to the Director-General and Council."3 1659, August 2. "Cristyntje Cappvens came before the Board and stated tht she and her husband had made a testament, showing it to the Board. It was found on reading it that the Orphanmasters are excluded, but as there is no mention of guardians for the child nor a settlement upon the same of the paternal inheritance, she requests that as guardians may be appointed the Honble Paulus Leenderzen van der Grift, selected by both, and Dirck Jansen Croon, thereto requested by her deceased husband, who had accepted the office, but said Dirck Jansen Croon not being here, she asks that the Honble Pieter Wolfertsen van Couwenhoven may provisionally act in his place, which is allowed."4 1659, September 27. "Whereas Jacob Coppe has died and there has been found among his papers and property here a testatment, made December 14, 1653, before Notary D. van 1 New Amsterdam Records, VL., 42 2 Ibid, 45 3 Ibid, 84 4 Ibid, 104 [page xix] Schelluyne and witnesses, in favour of Lysbett Cornelis, daughter of Cornelis Aarsen, and Merritje Jans, daughter of Jan van der Bilt, naming them both heiresses of his estate, Therefore the Orphanmasters have resolved to appoint administrators of said estate, so that the heiresses may come to their own, and they have elected and authorized, as they hereby do, Timothyeus de Gabry and Isaacq Kip, who are directed to make as soon as possible a complete inventory of all the goods and property left by Jan Coppe, his debts and credits here in the country, as well in this place as elsewhere, and to report the same to the Orphans Court, to be then disposed of, as shall be deemed advisable."1 1659, November 13. "Jan Jansen de Jongh, widower of Cornelia van Vloet, dec'd, intending to marry Mrs. Catharina Brull, shows a testament made by him and his late wife before Notary Dirck van Schelluyne and witnesses, October 31, 1655, containing the last will of both, as follows: they first revoke and annul all former testaments, last wills, etc., made by them either singly or jointly, especially the testament made before Notary and witnessed May 13, 1653, wherein they name and institute as heir, as they have no child, the survivor of them both, to have all property, real and personal, stocks, credits, money, gold, silver, coined or not coined, jewels, clothing, linen or woollen, household goods and others, including legacies and bequests, either already received by testators from their parents or collateral relatives, or to be received from intestates, or under a testament, during the life of the first one of them dying, nothing in the world excepted or reserved, as well here in this country, as in Holland, Brabant, the Dutchy of Bois, the Barony of Breda, or elsewhere; to have all forever, use it as inherited property, and do therewith as is done with one's own free property, without anybody's interference, they, testators, promising each other never to act against or change this, their last will."2 The last will and testament of Deltien Lubbertse, dated January 2, 1664, was presented for probate before the Mayor and Aldermen of the city of New York, Nov. 30, 1664.3 1 New Amsterdam Records, VI, 110. 2 Ibid, 120-121 3 Annual Report of the State Historical Society of New York, for 1896, pp. 144-5. --------------------------------------------------------------------- [page xx] V - ENGLISH TESTAMENTARY LAW The absence of written records renders it quite impossible to determine the precision the law of inheritance among the Germanic or Teutonic peoples two thousand years ago. According to Tacitus (cap. xx) "Heredes tanmen successoreque sui cuique liberi: et nullum testamentum. Si liberi non sunt, proximus gradus in possessione fratres, patrui, avuncuii." Here was the law of descent, simply, on much the same lines as among Aryan and Semitic peoples two thousand years earlier. It is a striking illustration of the slight impression made by Roman institutions on the people of England, that the Roman law left not a vestige of its influence of the institutions of that country after the conquerors had withdrawn. The latest researches fail to reveal any trace of testaments among the Anglo-Saxons before the ninth century, and even those seem to have been rather in the nature of post-obit gifts, than of wills in the modern acceptation of the term. In the lasw proclaimed by Alfred, cir. 890, for example, it was declared (cap. 41): "The man who has boc-land, and which his kindred left him, then ordain we that he must not give it from his maeg-borg [kindred], if there be writing or witness that it was forbidden by those men who at first acquired it, and by those who gave it to him that he should do so." "The ordinance of Ethelred [A.D. 978-1016], and his witan ordained as frith-bot for the whole nation, at Woodstock, in the land of the Mercians," provided (cap. 71): "If anyone depart this life intestate, be it through his neglect, be it through sudden death; then let not the lord draw more from his property than his lawful herlot. And according to his direction, let the property be distributed very justly to the wife and children and relations, to everyone according to the degree that belongs to him."1 That there was testamentary folk-law, or borough-law, seems probable. Indeed, in the gradual growth of royal authority, when the devise of land was condemned, borough customs were spared. By the thirteenth century the system of primogeniture had become firmly established, so that a man could no 1 Stubb's Select Charters, etc., Oxford, 1870, 62-73. [page xxi] longer dispose of his lands by will – except burgage tenements – and could only bequeath his chattels. After nearly three centuries the statutes of 32 and 34 Hen. VIII, gave the power of devising to all having estates in fee simple, except in joint tenancy, over the whole of their soccage land, and over two-thirds of their lands holden by knight's service. This power was extende by statutes 12 Charles II., cap. 10, and 29 Charles II, cap. 3. The last-mentioned act prescribed the method of executing wills, requiring them to be in writing, signed by the testator, or by some personl for him, in his presence, by his direction, and attested and subscribed in his presence by three witnesses. The administration of estates was taken charge of by the church, professedly in the interest of the soul of the deceased testator or intestate, and the executor became the personal representative of the deceased. The will was proved in "the court of the judge ordinary, who was in the normal case the bishop of the diocese." At a later period it was decided that if the testator had goods worth more than five pounds in each of two dioceses, the executor should seek a "prerogative" probate in the archbishop's court. The goods of intestates were at the disposal of the judge ordinary, who in 1285 was by statute required to pay the intestate's debts out of such chattels.1 This system was gradually extended, until sustantially all matters connected with the proof of wills, the granting of letters of administration, and of guardianship, and the administering of estates,2 was entrusted to or absorbed by the ecclesiastical courts. When England separated from the See of Rome this jurisdiction, by the statute of 23 Hen. VIII., was declared to 1 History of the English Law, by Sir Frederick Pollock and Frederick William Maitland, 2d ed., Cambridge, 1899, II., 314-356; Constitutional History of England, by William Stubbs, Oxford, 1880, III., 372; 3 Blackstone's Com., 96; 1 Stephen's Com., 5th ed., 599-602; Coke Littleton, 111-112; Co. Inst. 7; Historical Essay on the Magna Charta, etc., by Richard Thomson, London, 1829, pp. 208-210. Hargrave, in his note on Co. Litt., III, declares that "the testamentary power over land was certainly in use among our Anglo-Saxon and Danish Ancestors." The statement is chiefly based on Wright's Tenures, and cannot be substantiated by any documents known to us at this day. As for certain testamentary customs, see Blount's Jocular Tenures, London, 1698; also Lex Customaria; or, a Treatise of Copy-hold Estates, etc., by S. C., London, 1696. 2 That is, personal estates, the executors taking no title to the lands of their testators. [page xxii] be in the bishop, or ordinary, of the diocese, – so called, says my Lord Coke, who was a better authority on law than on etymology, English or Latin, "quia habet ordinariam jurisdictonem in jure proprio, et non per deputationem, the name we have anciently taken from the colonists, and do apply it only to a bishop, or any other that hath ordinary jurisdiction it causes ecclesiasitical"2 – and in cases of goods of the value of £5 – bona notabilia – in another docese, in the Metropolitan, the archbishop of Canterbury, or in the archbishop of York. The bishop exercised this jurisdiction by an official, called his chancellot, and sometimes called the ordinary, who was his surrogate; the archbishop, who claimed it by way of special prerogative, by an official called the judge of the prerogative court, a name derived from the fact that the jurisdiction in such cases was by the archbishop's prerogative.3 An appeal lay from the ordinary to the prerogative court, whose sentence was without appeal, until a statute of 24 Hen. VIII., gave an appeal to the King in the chancery, which was heard before delegates appointed under the great seal, and who were called the court of delegates. --------------------------------------------------------------------- VI - NUNCUPATIVE WILLS In times when the art of writing was confined almost exclusively to the clergy, and when landowners very often met with sudden deaths, in battle or in broils, written wills were usually or at least frequently out of the question. So the law recognized nuncupative wills – made orally in the presecnce of witnesses, and afterwards reduced to writing by someone who heard the declaration of the testator.1 The Statute of 29 Chas. II., cap. 3, requiring all wills to be in writing, signed by the testator, practically forbade nuncupative testatments. THE PROBATE OF WILLS IN NEW ENGLAND The Plymouth Colonists had to face new conditions in a New World. They expressly denied all ecclesiastical 1 Co. Litt., 111a. 2 Co. Litt., 90 b. 96 a. 344 a. 3 Co. Litt., 96 a. 344 a.: Hale, C. L. 35; Burn's Ecclesiastical Law; William Nelson's Lex Testamentaria; 3 Stephen's Com. 355 n. See an interesting review of the subject in the case of Harris v. Vanderveer's Executor, 21 N. J. Eq (6 C. R. Gr.), 452. [page xxiii] authority in secular affairs, and as there was no ecclesiastical court – neither bishop nor archbishop – and they were at liberty to make their own laws, 1 they provided for the probate of wills before the Governor and Assistants, by an act passed in 1633. The practice during the first twelve years of the settlemtn does not appear from the statute books, but doubtless the act in question was susbstantially a reduction to writing of the custom that had previously prevailed in the Colony. This was as follows: "It is enacted by the Court that the will and Testaments of such as died bee ordered proued before the Gour and Assitants the next Court after the pty is deceased prouided the court bee not within one month after the death of the Testator and a full Inventory duely vallued bee prsented with the same before letters of adminnestration bee by his wife or other nearest to him Inventoried and duely vallued and prsented to the Gour and assistants att the time foremencioned and if it be a single pson without kinred heer resedent; that then the Gour appoint some to take a Just Inventory of the same vpon oath to bee true and Just as in other the cases before mentioned."2 This act was continued in the revision of 1658, and subsequently. The propriety of nuncupative wills was obvious in a new settlement, and in 1645 this law was made: "It is enacted by the Court that if any man being weake and sicke and otherwise disposing memory do declare his mind and will concerning the disposing of his lands or goods before two or more of the ffreeholders of the place where hee liues; 1 At a General Court of the Governor and Company of the Massachusetts Bay in New England, holden at London, the 30th April, 1629, it was ordered that the Governor and Council of the Colony should have power "to make, Ordaine and establish, all mannr of wholesome & reasonable lawes, Orders, Ordinances, & Constitucons (soe as the same bee boe way repugnant or contrary to the lawes of the Realme of England) . . . for the furtherance and prpagating of the said Plantacon, and the more decent & Orderly Gournmt of the inhabitants resydent there." See Transactions and Collections of the American Antiquarian Society, III., 40. 2 Plymouth Colony Records, Boston, 1861, pp. 112, 195. [page xxiv] It shalbee vpon theire oathes recorded and remain ferime according to such deuise or bequest."1 The Colonies of Massachusetts Bay, New Haven and Connecticut had similar laws, and the first English settlers of New Jersey, coming as they did from those Colonies, brought with them their ideas of legislation on such subjects, derived from their experience. 1 Plymouth Colony Records, pp. 40, 113, 195. --------------------------------------------------------------------- VII - EARLIEST NEW YORK LEGISLATION The laws published at Hempstead, Long Island, March 1, 1665, by Colonel Richard Nicolls, the Duke of York's first Governor, set forth with much precision the procedure in cases of administration. "Upon the Death of any person the Constable with two Overseers of the parish shall Repair to the house of the deceased partly to enquire after the manner of Death and of his Will and Testament and in Case none doth Appear, or shall be produced, it may be taken for granted that the Person Dyed intestate And in the Presence of the Widow Children and other Relations, if any such therebe or if any such refuse to be present, it shall be lawful for the said Constable in the presence of the Overseers to make a due Search and enquiry after the estate of the deceased and within eight and forty hours after, he is to deliver in writing and upon Oath his final knowledge, to the next Justice of the Peace and the said Justice of ye peace is impowered to send out warrants to take Security against any embezelment or disposal of ye said Estate under any pretence whatsoever, until the next Court of Sessions where all Cases of Administration within the Libertry shall be Adjudged. "The Estates of all Persons dying intestate who have neither the Relations of Children Brothers or Sisters or their Children Uncles or Aunts or their Children for want of such heires shall, Elapse to the King provided always that Such Elapsing shall not hinder the Lawful Claymes of and Such Relations afore mentioned, if it be made appeare upon Oath to the Court, within one year and Six weeks. "That no Administration be granted until the third Sessions [page xxv] after the parties decease, except to the Widdow or Child, and then to be immediately granted to the said Widow or Child bringing in Sufficient Security for the performing all things the Law requires and saving the Court harmless, And in case the widow of Child do Administer the Estate shall be Inventoryed and Apprisement made by four Men appointed by the Court and sworne by a Justice of peace which Inventory or apprizement shall by the said widow or Child be brought into the next Court of Sessions, unless the Court for reasons showed them may think fitt to grant Liberty to bring it in the Court following. But in case the deceased Dye without widow or Child, then the estate, for the better improvement thereof shall be sould by order of the Court at an Outcry, and the puchasers all putting Security, and Acknowledging Judgement for their debt which by the Court shall be Assigned to the several Creditors of the deceddent,1 and paid according to the priority of Law and the Surplusage remaining, if any, to be delivered to the next kinsmen of the descendant, 1 if he appears or if none prove himself such within one year and six weeks, Then the Court to give an account of the said Surplusage to the Governour. And when the widow or Child Administers the surplusage after debts paid and the funerall Charges according to the quality of the person allowed for, shall be equally divided between the Widow and Children, viz. one third of the personall Estate to the widow and the other two thirds amongst the Children, provided the Eldest Sonne shall have a double portion, and where there are no Sonnes the daughters shall Inherit as copartners, and if any of the Children shall happen to dye before it come to age his portion shall be divided amongst the Surviving Children. "Whoever pretends to Administer upon any Estate shall bring to the Court Sufficient Security, before the order shall be granted, And an Order thus obtained legally by giving in such Security to be truly accomptable to bring in a true Inventory, and to perform such things as Administered by Law are, required or enjoyed, shall not at any time after be reserved, unlesse the party that obtained the Same, dye before he hath given 1 Decedent [page xxvi] an Account of the estate and obtained his Quietus in which case the Court is Impowered to grant the Administration of that Estate so not Accompted for to some other person who may by virtue thereof call the heirs Executors or Administrators of the former Administrators to accompt who shall pay out of the deceased Administrators Estate all such debts as shall be found due to the estate he administered upon in the first place. "If any Executor nominated in any will and knowing thereof shall not at the next Sessions which shall be above thirty days after the decease of the party; or shall not cause the same to be recorded by the Recorder or Clarke of that Court within that Jurisdiction the deceased party last dwelt. Or if any person whatsoever shall not within the same time take Administration of all such goods as he hath, or shall enter upon of any party deceased, or if any person or persons shall alienate or Embezell any lands or goods before they have proved and recorded the will of the deceased or taken Administration, every such person so administering, or Executing hsall be lyable to be sued, and shall be bound to pay all such debts respectively as the deceased party owen whether the estate of the deceased weare sufficient for the same or not and shall also forfeit. "If any person shall renounce his Executorship or that none of the friends or kindred of the deceased party that shall die intestate shall seeke for Administration of such persons Estate, then the Constable of the Town where any such persons shall die, shall give notice thereof to the next Court of Sessions; that so the Court may take order therein, as they shall think meet, who shall allow such Constable due recompence for his pains But if the Constable shall fail therein, he shall forfeit forty Shillings to the publique Treasury. "That the Clarke of the sessions when he carries the Probates or Commissions of Administrations to be signed do then also Certify unto the recorders Office at New York, the name of the testator or the party deceased the Executors or Administrators and their Security, the County and Parrish where they dwelt And the Court wherein the Administration is granted to [page xxvii] the end that strangers and other Creditors invested1 in the Estate may be the better Enabled to find out the Records in which the Accompts of the estate is entered and be informed how they come to their just dues. "Memorandum That what is here spoken of Executors or Administrators the like is ment; and intended also of Executrixes & Administratrixes who in such Cases are to have the same privileges."2 At the General Court of Assizes held in New York, September 28–October 4, 1665, it was ordered: "That all Orignall Wills after haveing beene prooved att the Court of Assizes or Sessions and returned into the Office of Records att New-Yorke shall remain there, and the Executors Administrators shall receive a Coppie thereof, with a Certificate of its being allowd and attested under the Seale of the Office. "Administration may be granted by the Court to any Person, the Second Session, but to any widow or Child, Brother or Sister immediately. "A (Quietus) is to be procured within a yeare and six weeks after Administration is granted or a will prooved. "That Wills and Administrations of Estates under the vallew of one hundred Pounds, are not obliged to bee Recorded at New Yorke."3 The will of William Ludlam, of Southampton, was proved at the Court of Assizes, New York, Nov. 2, 1665.4 The will of Mary Gardiner, of Maidstone, alias East Hampton, L. I., was proved October 4, 1665.5 1 Interested 2 Duke of York's Book of Laws, 1864-1882, Harrisburg, Pa., 1879, pp. 5-6. These laws were extended from time to time over the whole of the territory under the domination of the Governor of New York for the time being, and so applied at times to parts of New Jersey. 3 Ibid., pp. 61, 66. Annual Report State Historian of New York, for 1896, p. 145. The Governor and Council made orders in November, 1669, and in October, 1670, requiring wills and all proceddings in relation to estates to be recorded. Ibid., 163, 168-9. 4 Abstracts of Wills on file in the Surrogate's office, in the city and county of New York, Collections of the Historical Society of New York, XXV, (1892), pp. 1, 3. 5 Ibid., 1. [page xxviii] Letters of administration were granted July 10, 1666, by Gov. Richard Nicoll, on the estate of Francis Cregier.1 The will of Edward Jessup, of Westchester, was proved at Flushing, November 14, 1666, "at Sessions, by the Governor's special order."2 At a Court of Sessions in Southampton, L. I., November 16, 1665, administration was granted to John Concklin, jr., on the estate of his wife's former husband, William Salmon.3 After the English had conquered New Netherland, the Mayor's Court of New York continued to act as an Orphans' Court, in the same manner as the Burgonmasters and Schepens had formerly done, and wills were drawn up and executed – at least among the Dutch – frequently after the ancient custom. The following instances illustrate the manner in which the Duke of York's Laws were practically applied by the Mayor's Court, succeeding to the function of the Dutch tribunal: "Octobr. The 30th, 1666. Att a Mayors Court held at New York. Present Captn. Thomas Willet, Mayor, Mr. O. Stevenson, Mr. John Lawrence, Mr. Corn. Steenwyck, Mr. Johannes de Peyster, Aldrmen; Mr. Allard Anthony, Sheriff. "Mr. Timothy Bigs Presentinge to the Court Certaine Last Will of Charles Darrel Late deceased & the Inventorie of his Estate; wch. said Will & Inventorie beinge proved in Court to be Legally made; The honnble. Court did order that the sd. Will and Inventorie should stand & Remaine in itts full force & Virtue that the same should be entered according to Lawe. "James Willet & Mr. Wheat have declared & Testified to the Court uppon oath, that the Will of Charles Darrel late deceased, by Mr. Bigs, presented to this Court, was the act & deed of the sd. Darrel, as alsoo that the sd. Darrel (as farre as they Could apprehend) had his good memorie when he made the sd. Will. "Timothy Bigs had on this day declared uppon oath to the Court, that to his Knowledge uppon the Prizing of the estate of the abovesd. darrel, he had declared al the Estate to the Prizers of what he knewe of."4 1 Abstracts of N. Y. Wills, up supra, 3. 2 Ibid., 4. 3 Ibid., 4-5. 4 New Amsterdam Records, New York, 1901, VI., 43. [page xxix] A petition was presented to the Governor, April 26, 1670, by the children of Samuel Palmer, lat of Westchester county, deceased, asking that letters of administration should be granted to his widow, that she might have the benefit of his small estate.1 Gov. Lovelace confirmed, July 23, 1671, the appointment of orphan masters by the Mayor's court of New York.2 "At a Mayors Court held at New Yorck, September 19, 1671, Gabriel Minvelle produceing in Court the Will & Testament of Capt. Jno. Julius Late Commander of the Ship the Dorathe now riding at Ancor in the harbour of the Citty; by wch. Will he was made Executor to administrate the effects now aboard of the sd. shipp desireing that the sd. will might be proeved by the Witnesses and Confermed by the Court. Whereuppon the Witnesses to the sd. Testament to wit Mr. Balthazar de Haert, Mr. Claes Verbracck, Mr. Philip Johns & Geo: Sparr being Call'd and appearing in Court, attested together wth. Secretary Nicolaes Bayard that they had bene present in Makeing of the sd. Will; and that the sd. John Julius had his full understanding as farre outwards could be perceived."3 "At the Court of Mayor and Aldermen, held at New Yorke, by his Mayesties. Authority, October 24, 1671: "On this day was the Will & Testament made betwixt Abram Verplanck and his late Wife Maria Vinge bearing date the 9th. of August 1670. And made by the Notary Dirck van Schelluyne, proeved and allowed of in Court."4 "Att a Mayors Court held in New Yorke, January 23, 1671-2: Jacob Teunissen Kaay & Jacques Cousseau, together with Peter Jacobs Marius, who being substituted by Jan Hendricx van Bomel, executors of the Will and Testament of Balthazar de Heart, deceased, this day appearing in Court and producing the sd. Will made and attested by the Notary Willem Bogardus in the presence of Hans Kierstede & Thymon van Borsum, bearing date the 4th. of this Instant, and desired the approbation of this Court thereuppon; Whereuppon the 1 Annual Report of the State Historian of New York, for 1896, p. 259. 2 Ibid., 316 3 New Amsterdam Records, VI., 329 4 Ibid., 339. [page xxx] Sd. Witnesses being Called and appearing in Court, and declaring that they had been present in Makeing & signing of the Sd. Will; The Court thereuppon Ordered that it should be entered that the said Will was approeved of by the Court, as a Lawful Will and that the Sd. Executors were Empowered to Proceed in their Administrations according to Law, and do hereby authorize the Secretary Nicolaes Bayard to be present in Makeing of the Inventory."1 In many instances the appointment of administrators was made directly by the Governor for the time being, as in 1668, by Gov. Ri. Nicholls; in 1671, by Gov. Francis Lovelace; in 1672 by Gov. Edmond Adross.2 The Court of Mayor and Aldermen of the City of New York acted in other cases.3 1 New Amsterdam Records, VI., 357 2 Abstracts of N. Y. Wills, ut Supra, 8, 21, 25, 27 3 Ibid., 12, 22, 29, 30. --------------------------------------------------------------------- VIII - EARLIEST PROBATES OF WILLS IN NEW JERSEY "When New Jersey was granted (March 12, 1664) by Charles II. to the Duke of York, and by him (June 23-24, 1664) to the Lords Proprietors – Lord John Berkley and Sir George Carteret – the latter appointed Philip Carteret (February 10, 1664), to be Governor of New Jersey. The origin and history of the sovereign power of the Colony, ultimately vesting in the Governor, has been traced in the Introduction to Volume XXII of the New Jersey Archives, pages lxi-lxvi. No record has been found at the probate of any will in New Jersey for more thatn five years after the arrival of Gov. Carteret in the Colony, and there was no legislation or public order on the subject until he had been here ten years. Yet there can be little doubt that he exercised the functions of Ordinary or Surrogate-General, as part of the supreme power of government which had devolved upon him. It is not unlikely, however, that the Dutch inhabitants continued to follow their old way, to some extent, permitting the wills of deceased testators to remain in the custody of the notaries drafting them, and settling intestates' estates by mutual agreement, or with the assistance of the the church consistory. The settlers at Elizabethtown and at Monmouth having [page xxxi] received their patents from Col. Nicholls (the former December 1, 1664, and the latter April 8, 1665) prior to the coming of Governor Carteret (who arrived at New York July 29, 1665), were naturally reluctant to yield allegiance to the Lords Proprietors, especially that involved the payment of quit rents to the new owners of New Jersey. Hence they would be disposed to follow the practice in the matter of wills laid down in the Duke of York's Laws, published on Long Island, whence a large proportion of those settlers had come. The Newark colonists, in the absence of other regulations on the subject, doubtless adhered to the usage to which they had been accustomed in Connecticut. The Swedish settlers on the Delaware undoubtedly were governed by the Civil Law, prevailing in their fatherland, and which in that country was much the same as in Holland. But in a new country, with a scant population, widely scattered, and the merest shadow of a central government, each settlement or community must have been, practically, self-governing in most of its internal affairs.1 In a compact settlement like Newark or Elizabethtown, with say two dozen families, all of them intimate, bound together by the interests of common ownership, and many of them by ties of kindred, what more natural than a reversion to primitive communal government? If a man died, his will – if he made any – would be read at his funeral, in the presence of the whole community, and the settlement would see that it was carried into effect, even though there should be no probate of the instrument. If he died without a will, the entire body of citizens would administer upon his estate and deal even and exact justice to the widow and children. The writer has seen wills made in the latter part of the eighteenth century which were never proved or recorded, but which were carried out in perfect compliance with their provisions. The earliest record that has been found of any order by Governor Carteret relative to administrating upon an estate is the following, under date of December 30, 1670: "By Phillip Carteret Esqr Governor of the province of New Jersey. Whereas Daniel Greasy late of Woodbridge, 1 See Newark Town Records (Collections N. J. Historical Society, VI.) 1856, pp. 4, 14, 21, 22, 29, 33, 35. [page xxxii] planter, dyed Intestate and Leaving only a Widow behind him Without any Children or any other relations or kindred to survive him In his Estate, I have thought fitt at the Request of said Widow Catherine Greasy, To nominate and appoint And doe by these presents nominate and appoint her the said Catharine Greasy to be Administratrix to her aforesaid husband deceased Estate of Land, Goods and Chattels, movable or Immovabel, she together with the overseers here following nominated and apointed, taking a true Inventory of her said husband's Estate that the left behinde him, and to Returne the same Vppon them into the secretaries office, out of which said estate shee Is to pay and satisfie all Just Debts that Where dew and owing by her said deceased husband – And likewise shee hath hereby full powers to sue, recover and receive all such debts, that are and were Justly due Vnto him, and for the better [P?]forming of the [P?]romises I doe hereby appoint John Smith Scotchman and Samuel Moore both of the towne of Woodbridge, to be overseers and assistancts Vnto her the said Widow, and I doe further Give and Grant Vnto the said Widow Catharine Greasy that after shee has satisfied all Just debts and funeral Charges as aforesaid to bequeath and dispose of the Remainder as shee think fitt, In Confirmation Whereof I have been Vnto subscribed and affixed the seale of the province the 20th Xr 1670.1" A few weeks later we find the following entry: "Joshua Peirce late of Woodbridge, planter, died intestate leaving a widow and two small children behind him, the governor appoints his widow Dorathy Pierce administratrix, to pay and satisfy all his just debts, and with the power to sue, recover and receipt for debts due him in his lifetime. After she hath satisfied all just debts and funeral charges as aforesaid to dispose of the remainder for the best advantage of hereself and her said children as she shall think fit. February 27, 1670." The next record of the kind is six months later: "Lawrence Ward, late of Newark, died intestate, without children, leaving only his widow upon his estate; and the said widow, Elizabeth Ward, renounced in favor of her sister Esebell 1 E. J. Deeds, Liber 3, p. 28 2 Ibid., p. 41. [page xxxiii] Baldwyn, wife of Joseph Baldwyn, of Hadley in Massachusetts, upon condition that the said Elizabeth Ward, widow, shall enjoy the said whole estate during her life, and to dispose of one-third part thereof remaining at the time of her death as she shall think good. The Governor accordingly appoints Isabell Baldwyn administratrix, September 2, 1671. "Esebell Baldwyn declares that whereas Lawrence Ward, late of Newark, my brother, deceased intestate, etc., leaving a widow, my sister Elizabeth Ward, upon the estate of my deceased brother, I appoint my son John Catlin and John Ward, turner, my kinsman, both of Newark; attorneys to take unto them jointly all my whole power and interest in and to the said estate, etc. September 4, 1671."1 In the case of the last will and testament of Hugh Roberts, of Newark, dated February 26, 1670, the record declares that it was signed, sealed and delivered in the prescence of Capt. Robert Treat, who makes oath, November 22, 1671, that "this will above mentioned is the last will and testament of said Hugh Roberts to the best of his knowledge," the proof being made before William Pardon, Deputy Secretary of the Province. There follows the inventory and appraisement, the overseers being sworn before Robert Treat, Magistrate, November 17, 1671. Mary Roberts swears to the inventory, November 22, 1671, "before Robert Treat, by permissionb of the Governor."2 In other words, Capt. Treat was authorized to act as deputy surrogate for the Governor, for this purpose. The last will and testament of Matthew Campfield, of Newark, was witnesses by John Brown, senior, and Tho: Pierson, March 19, 1672-3, and on June 11, 1673, we find that "John Brown senr & tho Pierson senr witnesses hereunto did make oath before me yt this is the Last will & testament of Matthew Campfield, his own handwriting," this proof being made before John Berry, Deputy Governor at the time. The inventory was sworn to before him the same day, and on June 30, 1673, he granted letters of administration to Sarah Campfield, the widow, sole executrix under the will.3 1 E. J. Deeds, Liber 3, pp. 45-46 2 Ibid., 49 3 Ibid., pp. 88-90. [page xxxiv] Administration upon the estate of Obadiah Winter, late of Woodbridge, deceased, was granted by Gov. Carteret, April 19, 1675, to Margaret Winter alias Grabum, his wife, sole executrix under the testator's will, dated March 1st, 1674-5.1 The will of Martin Tichanor, of Newark, dated October 19, 1681, was proved by the oath of two witnesses, Ephraim Burwell and William Camp, who made oath before James Bollen, Justice, that "they were present as witnesses to the signing and sealing of this last will and testament of Martin Tichanor, deceased." Bollen was also Secretary of the Province of East Jersey, and so in close touch with the Governor, by whom he was doubtless authorized to take the proof of this will. Letters of administration were issued by John Tichanor, executor under the last will and testament of Martin Tichanor, his father, by Governor Philip Carteret, November 14, 1681.2 And the next day the Governor granted letters of administration on the estate of Jasper Crane, lat of Newark, to John Crane, his son, executor.3 From the records of the probate of wills it appears very clearly that the county courts exercised jurisdiction in such matters quite frequently, particularly in West Jersey. At a "Called Court," held July 5, 1679, for the Whorehill, on the Delaware, an order was made granting a quietus to an admininstration.4 1 E. J. Wills, Liber 3, p. 111. It will be observed that Obadiah Winter's will bore date of March 1, 1675. His bereaved widow proved the will and took out letters of administration on April 19, 1675. Eight days later the Governor issued a marriage license for William Taylor and Margaret Winter, alias Graybum, widow of Obadiah Winter. The "funeral baked meals" did scarce "coldly furnish forth the marriage tables," in this case. 2 Ibid., 173 3 Ibid., 174 4 Salem Surveys, No. 2, f. 14. --------------------------------------------------------------------- IX - A NEWARK RECORD OF SOME WILLS In the Newark Town Book – a miscellaneous record, chiefly of the division of the home lots among the first settlers, later conveyances, bills of sale, etc., 1689–1728 – there are nine wills recorded, under the certificate of John Browne, town clerk, as to their correctness. The first is that of Richard Lawrence, "belonging to the Towne of Newark in East Jersey," witnessed by John Ward [page xxxv] and Steeuen Davis, and appended is the certificate of the proof of the instrument: "Witness sworn before me this 30th of March 1691. Thomas Johnson Justice."1 The will of Joseph Riggs, "of Newark in the Government of New England," dated January 1, 1688-9, has this certificate of proof: "Appeared before vs, William Camp, John Browne & Joseph Browne this 27 of November: 1689: and took oath that this is the Last will & testament of Joseph Riggs of Newark Latly deceased "John Ward Justice "Thomas Johnson Justice"2 This will was subsequently probated, in solemn form, May 16, 1711, and is filed at Trenton.3 John Johnson and Samuell Camp were witnesses, beside the three named above. The will of Michaill Tompkins, "of Newark in the Government of New England," had three witnesses. The proof reads thus: "Vpon the : 4th: of December : 1690 : appeared before Us John Browne & took oath according to the best of his knowledge this is the Last will of Michaill Thomp- kins senir Lately deceased "John Ward Justice "Thomas Johnson Justice." "Thomas Browne also took oat accordingly before me ye : 5 : December 1690 "Thomas Johnson Justice."4 John Baldwin, "of Newark in the Government of New England" made his will December 25, 1688. It was proved before a single Justice, thus: "Appeared before me John Curtis & John Browne this 28 of November 1689 & took oath that this is to the best of their knowledge the Last will & Testament of John Baldwin of Newark Lately Deceased "Thomas Johnson Justice."5 1 Newark Town Book, p. 10 2 E. J. Wills, Liber No. 1, p. 312 3 Newark Town Book, p. 14 4 Ibid., p. 13 5 Ibid., p. 14. [page xxxvi] The following entry is interesting, as showing the simple and apparently entirely satisfactory method of getting an authoritative construction of a will: "Whereas William Camp & Seth Tompkins overseers of the Last will of John Baldwin deceased, convinced1 the Justices of Newark together (namely Mr John Ward, & Mr Thomas Johnson) to give their sence & Approbation of what might be most suitable to the settling of what Lands belong to the heire. "Our sence is that the sd Lands spoken of in the sd will, will to his daughter Hannah Tichenor, be settled vpon the son of John Baldwin Junir & the profits of the same fore the time to come, only the crop vpon the ground, Ebenezer Lindly is to take it off, without any molestation, this we give as our Apprehention this 20th : of June : 1691 : "John Ward Justice "Thomas Johnson Justice."2 The will of David Ogden, "of Newark in the Province of East Jersey," dated December 26, 1691, was proved before Justices Ward and Johnson, February 27, 1691-2, by the oath of Samuell Harrison. "Mr. Patrick ffalconar being deceased." The will of John Browne, of Newark, dated December 17, 1689, was proved December 4, 1690, by the oaths of John Browne, junior, and John Denison, before Justices Ward and Johnson.4 "The Last will and testament of mee Sarah Davis in hope of Eternal Life throw Jesus Christ my Lord," dated March 27, 1691, was proved May 16, 1691, by the oaths of Stephen Davis and Edward Ball, before Thomas Johnson, Justice. 5 The will of Samuel Swaine, proved at New York, March 17, 1681-2, was recorded in Newark Town Book, and immediately following is the inventory of the estate of Mrs. Joanna Swaine, deceased, his widow, December 15, 1694.6 Her will, dated March 25, 1692, was proved December 10, 1 convened 2 Newark Town Book, p. 15 3 Ibid., p. 16 4 Ibid., p. 20 5 Ibid., p. 33 6 Ibid., p. 35 [page xxxvii] 1694, and filed and recorded at Perth Amboy,1 but the inventory was recorded in the Newark Town Book. 1 E. J. Deeds, Liber E, p. 165. The original will is now in the office of the Secretary of State at Trenton. --------------------------------------------------------------------- X - FIRST NEW JERSEY LEGISLATION REGARDING WILLS The "Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New Jersey, in America," dated March 3, 1676-7, contained among the common law or fundamental rights if that province careful provisions "for securing Estates of Persons that die, and taking care of Orphans," the first clause of which made this regulation regarding the probate of wills: "If any person or persons die, the commissioners are to take care that the will of the deceased be duly performed, and security given by those that prove the will : And that all wills or testaments be registered in a public register appointed for that purpose, and the person and persons that prove the same, to bring in one true inventory under their hands of all the estate of the deceased, and to have a warrant under the hands of three commissioners, and the publick seal of the province, intimating that they have brought in an inventory of the estate, and given security. Then and not before, are they to dispose upon the estate."2 This was embodied in a statute passed at a session of the "General Free Assembly of the Province of West New Jersey, in America," held at Burlington, November 21-28, 1681, as follows: "XI. That when any person or persons die, and have made a will and were in a capacity of so doing, the Governor, and commissioners, for the time being, are to take care that the will of the deceased be duly performed, and security given by him or them that proved the will; and that all wills and testaments be registered in a publick register appointed for that purpose; and that the person or persons, who shall prove the same, shall bring in one true inventory, under the hands of two or more appraisers, of all the estate of the deceased, and shall have a warrant or license, under the hand of three justices 2 Leaming and Spicer, p. 403 [page xxxviii] for the time being, under the publick seal of the province, intimating and declaring, that he or they have brought in an inventory of the estate, and given security for the true performance of the will, then and not before, he or they may enter upon and dispose of the estate."1 The East Jersey Assembly enacted March 21, 1682-3: "XX. That all wills in writing, attested by two credible witnesses, shall be of the same force to convey lands, as other conveyance being registered in the Secretaries office within this Province, within forty days after the testator"s death."2 An act of March 13, 1698-9, slightly modified this provision as follows: "All wills in writing and attested by three or more credible witnesses shall be of the same force to convey lands as other conveyances, being proved and registered in the publick records, within sixty days after the testator"s death. And in case of neglect the executor, or executors shall be liable to citation, and fined two shillings for each citation, and eighteen pence for each fine."3 1 Leaming and Spicer, p. 430 2 Ibid., 236; N. J. Archives, XIII., 31. 3 Leaming and Spicer, 371; N. J. Archives, XIII., 265. --------------------------------------------------------------------- XI - JURISDICTION OF THE GOVERNOR AND COUNCIL It will be observed that the authority to take proofs of wills and inventories and appraisments was usually exercised by someone designated for the purpose by the Governor. In some cases, however, original jurisdiction was exercised by the Governor and Council, as the following extracts from their records will show: March 3, 1682-3: "Lawrence Andress tendring the adm"stracon of James Bollens Estate appraismt and sale might bee Entered in the Secretarys office, vpon view thereof "1st It appears the Letters of Adm"istracon bear date the 12th Day of September 1682 "2. The appraisement the 27th March 1682 "3 The sale of the Estate the 28th of September 1682 amounting to 93lb 15s 1d – Lawrence Andress declared here in Councill [page xxxix] that he was wth the Governor Philip Carterett in December last wch was after the Prprietors arivall here,1 and then and not before the Governor sealed the letters of Admi"strac"on in Lawrence Andress presence and delivered them to him in company of Capt Vickers – "Wee finde not that any bond was given for the due adm"istrac"on thereof wch is aledged in the Admi"strac"on to bee entred into the 12th Sept 1682."2 March 5: "Agreed that Capt Vickers & other persons who were of the late Governors Councill since the death of the late Secretary Capt Bullen and are here in towne may have notice to bee here in Councill at 3 A Clock this afternoone to Attend a Conference relateing to them wth the house of Deputyes —"3 May 10, 1683: "Samuel Moore & Nathaniel ffitzrandolph making applicac"on on here and requesting to have the Administrac"on of the Estate of Captn James Bollen who Dyed intestate granted to them as guardians to the Children of the said Captn Bollen, And Lawrence Andresse the late prtended Admi"strator to the said Estate Declareing that he dus absolutely renounce all prtence and Claime that Samuel Moore and Nathaniel ffitzrandolph bringing here the Children of the said Captn Bollen and they Chooseing them their guardians that their Admi"strac"on be granted by the Deputy Governor to the said orphans according to the Due Course of Law, they bringing in here a perfect inventory or appraismt of the said Intestates Estate to be recorded."4 1 That is, after the transfer of the ownership and government of East Jersey from the Lords Proprietors, by whom Philip Carteret had been appointed Governor, to the twelve Proprietors, and their taking possession of the territory and government. 2 N. J. Archives, XIII., 11-19 3 Ibid., XIII., p. 14 4 Ibid., XIII., p. 50. [page xl] Feb. 29, 1683-4 : "The petic"on of Jonas Wood of Elizt Towne setting forth that vpon the Death of Dr. Wm Taylor the Deceased was indebted to him – That he and Wm Broadwell Enterd into bond after Taylors Death to Admi"ster his Estate – but since no Admistrac"on granted – but that Broadwell notwthstanding Receives the effects of Taylors Estate but gives noe Accompt thereof to the peticr and prays Admi"strac"on – wch being read the petic"oner and Will. Broadwell came before the board – Broadwell denyes hee has recd anything since Taylors Death – but by notes and orders from Taylor in his life tyme hee recd about 20s and noe more – after hearing of both prtyes it"s ordered that Admi"strac"on be granted to the peticr.1 October 30, 1686: "James Scott (sonn of George Scott of Picklockey late of the Kingdom of Scotland Deceased) came before this Councill being a Minor and made choyse off mr John Johnstone and mr George Willox to bee his Guardians – who were admitted accordingly – They giveing in sufficient security to bee accomptable to the sd James Scott when hee shall attaine to the age of one and Twenty yeares—"2 Abel Porter, jun., of Boston, having died on the voyage from Scotland to East Jersey, his widow obtained letters of administration, March 4, 1685-6, from the Court of Suffolk county, Mass., and on April 22 following was also granted similar letters by the Governor of East Jersey.3 When the will (dated 23d 9th mo. 1683) of Richard Leppincott, of Monmouth county, was offered for probate, Jan. 2, 1683-4, a special commission was appointed by the Governor to examine the widow, Abigail Lippincott, in reference to the instrument,4 instead of having the matter adjudicated by a Deputy Surrogate, or by a Court. The Governor frequently asserted his authority over the persons and estates of infants. When Hanse Harmensen, of Constaple"s Point, Bergen county, by a codicil, dated Oct. 19, 1700, appointed guardians over his grandson, an order was 1 Ibid., XIII., 122 2 Ibid., XIII., 170 3 E. J. Deeds, Liber A, ff. 305-307 4 Ibid., 329 [page xli] made by the Governor, Dec. 3, 1701, confirming the appointment.1 On the same day he admitted two persons as guardians of George Darling, of Woodbridge.2 He exercised like power over insane persons, as when (February 15, 1693-3) he appointed the wife and daughter (and the husband of the latter) of Samuel Hooten as his guardians, the said Hooten being "rendred uncapable to act through a distemper of lunacy."3 1 E. J. Deeds, Liber C, ff. 179-180 2 Ibid., 181 3 E. J. Deeds, Liber D, f. 372 --------------------------------------------------------------------- XII - PREROGATIVE JURISDICTION At the jurisdiction of the Governor of New Jersey and the Governors of East and West Jersey, respectively, extended over the whole of their several governments, their powers as Ordinary were sufficient for controlling the administration of estates within their domains, and a will, administration or guardianship, proved or granted by the Governor or a surrogate appointed by him was valid, without regard to where the goods lay.4 The prerogative of the Archbishop of Canterbury was occasionally called into requisition, as in the following instances: The Rev. John Allen, the settled minister of Woodbridge, having died in the latter part of 1683, letters of administration were granted to his son John, by the Archbishop of Canterbury, April 15, 1685. The instrument, which is in Latin, describes the residence of the deceased as being "the island of New Jersey."5 The venerable prelate had a better knowledge of his prerogative than of the geography of America. Edward Baker, of London, made his will, August 30, 1686, in which he named his father and his father-in-law, both of London, executors. He had debts due him in America, and on his death his executors obtained letters of administration, with will annexed, from the Archbishop of Canterbury.6 4 See American Law Register, by William Griffith, Trenton, 1822, IV., pp. 1185-1186 5 N. J. Archives, XXI., 56, 78; XXIII., 9-10 6 N. J. Archives, XXI., 286 [page xlii] Hugh Buchanan, of Bristol, England, mariner, married the widow Jeane Wilke, of the same place, to whom in 1688 was devised a large tract of land on Alloways creek, Salem county. Her husband died in Barbados, in the West Indies. She married again, Sept. 15, 1696, Benjamin Burgesse, at Bristol, and on October 15, 1697, she took out letters of administration from the Archbishop of Canterbury on the estateof her late husband in New Jersey.1 DEPUTY SURROGATES Instances have been cited showing that the proofs of wills and inventories were frequently made before persons authorized by the Governor to act in his absence. Thomas Gordon was the first person duly appointed Surrogate for East Jersey, his commission being dated March 8, 1693-4. He was again appointed December 18, 1700. From an instrument dated July 31, 1694, it appears that his formal title was "commissioner for taking the probate of last wills." By that instrument he certified that a certain person had properly administered an estate.2 1 West Jersey Records, Liber B, p. 607; Salem Deeds, Liber B, p. 61; Salem Deeds, Liber No. 5, p. 177. 2 E. J. Commissions, Liber C, 187, 329; N. J. Archives, XXI., 215 --------------------------------------------------------------------- XIII - NUNCUPATIVE WILLS Nothwithstanding the statute of 29 Chas. II., cap. 3, hereinbefore recited, requiring wills to be in writing, witnessed by three persons, nuncupative or spoken wills were admitted to probate in Colonial times, there being at least twenty-eight of such wills noted in this volume. For some reason not apparent on the surface, this form of will was more usual in West Jersey than in East Jersey. Of the twenty-eight wills mentioned, fifteen were in Salem county, four in Gloucester, three in Burlington, and one in Cape May – a total of twenty three in West Jersey. Of the other five, two were in Middlesex, two in Monmouth and one in Essex. In point of time, they range from 1685 to 1724. Naturally, these nuncupative wills were usually the dying declarations of the testators expressing their wishes as to the [page xliii] disposition of their property. Generally, they were offered for probate within a few days. Sometimes the family did not wait for the death before taking the preliminary steps to administer upon the estate, as in the case of Caleb Carman, senior, of Burlington county, whose will was uttered August 5, 1693, attested before Joseph Houldin and Samuel Crowell, Justices, by affidavit of John Gervis and Caleb Carman, leaving all to his wife Elizabeth. His estate had been inventoried a month before, or on July 7. Letters of administration were granted to his widow, August 16.1 There was a singular confusion over the will of John Denn, of Allawayes Creek, who died at or before June 24, 1685, having "spoken" his will before George Deacon, Commissioner, that he gave his whole estate to his widow for life, with remainder to his children. Administration was granted to his widow, May 3, 1686, by five Justices, but on February 15 following three of the Justices enetered a notice that these letters of administration were granted "thoroe the Mistake of William Wilkinson Clark to ye sd Court there being a Nuncupative Will proved. Therefore ye sd aforesd prceedings are null and voyd by judgmt of Court."2 Two witnesses swore, June 1, 1689, that on May 4, 1689, they had heard Marcus Lawrence, of Putshack, Gloucester county, say that he had sent for John Taylor to write his will, but feeling that he should speedily die he asked his wife if she would stay with his children; she desiring to consult with her own son, he appointed three friends to manage his whole estate and divide it between his wife and two children. Haunce Sheiahel, of Penn"s Neck, Salem county, planter, chose, of all places, to "speak" his will at the wedding of Nicholas Philpot, before three witnesses, but it was not until May 12, 1692, that administration on his estate was granted and an inventory taken.3 The estate of Moses Huestis, of Amwelbury, Salem county, was inventoried 15th of 9th mo. (November), 1694; his will was spoken the next day.4 1 N. J. Archives, XXIII., 82 2 Salem Wills, Liber No. 2, pp. 20, 24 3 Salem Wills, Liber A, p. 75 4 Salem Wills, Liber A, p. 132 [page xliv] Sometimes these spoken wills were proved by the oaths of two witnesses, but the nuncupative will of Andrew Howman, of Rapahaking, Gloucester, made September, 1700, was substantiated by the affidavits of five witnesses, who moreover declared that "ther might at Least a dozen more be procured." The scrivener who took down the will of Christopher Wetherill, of Mansfield township, Burlington county, March 25, 1711, certifies that "The withIn written Wass Taken in Wrighting from the Testators moutn ye Very Substance of all Deuise Butt Nott in forme," and the will was admitted to probate April 6, 1711.1 John Pentlen, of Monmouth county, uttered his will on June 23, 1719, and John McDowell swore that a few days and then again a few hours before his death Pentlen had said he wished Henry Ross and family to have what he left. His personal estate was inventoried the same day by Adam Hude and the said McDowell.2 1 Liber No. 1 of Wills, p. 302 2 N. J. Archives, XXIII, 359 "LETTERS TESTIMONIAL" In a number of instances in the early records of wills it is stated that "letters testimonial" were issued. From the following, it would seem that the expression is used where letters of administration were granted with will annexed, although in this particular case the letters were issued to the exeutor named in the will. The meaning of the expression seems to be, that Letters were issued to the executor or administrator as a testimonial (i.e., in testimony) of his authority to act. "To all Christian people & others whatsoever to whom these our Letters Testimoniall shall come, or whom the premises shall or may Concerne The governor & proprietors of the province of East New Jersey send Greeting Now Know One That the twelfth day of Aprill in the year of Our Lord One thousand six hundred Eighty and Eight The annexed last will & testament of Mary Mitchell late of Elizabethtown widdow deceased, was tendered proved & approved before us, And she the sd Mary Mitchell having whilst she lived divers and sundry [page xlv] goods & Chattels to be administered within the sd province, and the Right of disposeing & granting the administration thereof belong unto us, Wee have & doe hereby committ the administratione of all & singular the goods Chattels Rights and Creditts of the sd deceased, unto Andrew Hamptone of Elizabethtowne aforesd whole executor in the sd annexed last will & testament named Truly & faithfully to administer of the same to exhibite into the secretary"s office on or before the thirteenth day of Aprill which shall be in the year of our Lord One thousand six hundred Eighty & nyn. Give under the seale of the sd province the day & year first above written. "And. Hamilton"1 [Governor] Letters testimonial with will annexed were issued September 1, 1692, to the executrix of Major William Sandford, of New Barbados, deceased.2 Many other cases could be cited.3 1 E. J. Deeds, Liber B, f. 355 2 E. J. Deeds, Liber D, ff. 279, 355 3 Ibid., ff, 91, 94, 115, 116, 226, 257, 262, 269, 272, 281, 283, 285, 336, 340, 352. Liber E, ff. 10, 21, 41, 42, 80, 82, 129, 139, 142-167, 176, 196, 199, 217, 220, 224, 236, 266, 269, 271, 316, 411, 458, 560. Liber F, ff. 45, 47, 127, 284, 355, 401, 461, 531, 592, 618, 632, 653-659. Liber G, ff. 1-4, 21,22, 279. These references are all to East Jersey records, usually kept by Scotch clerks. The expression was probably peculiar to the Scottish law. --------------------------------------------------------------------- XIV - THE PROBATE OF WILLS IN THE PROVINCIAL ERA The memorial of the Proprietors of the Province of East New Jersy to the Lords of Trade in regard to the proposed surrender of the Government to the Crown suggested that among the rights and privileges that should be confirmed to the proprietors and planters respectively, in the event of the surrender, was the following: "XI. That all Wills of Persons dying within East-Jersey, and Letters of Administration of Estates lying there, may be made and granted by the chief Judge of East-Jersey for the Time being, who is to reside there, and a Register thereof kept at Perth-Amboy."4 After the surrender of the government of East Jersey and 4 Leaming and Spicer, p. 590; N. J. Archives, II., 296 [page xlvi] West Jersey to the Crown, and the appointment of Lord Cornbury as Governor, in his instructions, dated November 16, 1702, the probate of wills was expressly reserved to him as Governor and the commander-in-chief of the province for the time being. The precise language was this: "75. And to the end the ecclesiastical jurisdiction of the said lord bishop of London, may take place in our said province so far as conveniently may be, we do think fit that you give all countenance and encouragement to the exercise of the same, excepting only the collating to benefices, granting licenses for marriages, and probate of wills, which we have reserved to you our governor and the commander in chief of our said province for the time being."1 Thus the Governor "was not only ordinary, but metropolitan of the province. He had no superior but the queen in council."2 His court was called the prerogative court, an appellation applied in England to the archbishop"s court. Nor had he any subordinates; his jurisdiction over these subjects was sole and exclusive. This constitution of the court continued till the revolution, and was adopted by the convention which framed the constitution of the state in seventeen hundred and seventy-six. For one hundred and forth years the governor or ordinary was the only judge of probate known to the constitution of New Jersey. "But at an early day the provincial governors, for their own and the people"s convenience, appointed deputies, with the name of surrogates, residing in different parts of the province, to act in their stead, upon such cases as the people chose to submit to them. Sometimes there were more that one in a county, sometimes only one for two or three counties. They 1 Leaming and Spicer, 369; N. J. Archives, II., 529 2 "Until the revolution this power continued in and was exercised by the governor. No appeal was ever given from the governor"s testimentary proceedings, except an appeal which existed from the highest colonial courts to the king in council." See Anthony v. Anthony, Court of Errors and Appeals, 1846, 5 N. J. Eq. (1 Halst, Ch), 627; citing Griffith"s Law Reg., 1178, 1179, 1185. "It is admitted, and is indisputable, that from the surrender of the proprietary government to Queen Anne, in 1702, to the present time, neither this court nor its provincial prototype, has ever claimed any supervision over the decrees of the prerogative court." Beasley, Ch. J., in Harris v. Vanderveer"s Ex"r., Court of Errors and Appeals, 1869, 21 N. J., Eq. (6 C. E. Gr.), 426. [page xlvii] were more deputies, subject to the control and supervision of the ordinary, and to be removed at his pleasure. By appointing them the ordinary did not in the least curtail his own jurisdiction. Whilst he held appellate jurisdiction of their acts, his own original jurisdiction remained entire. "Thse surrogates did not hold to the ordinary the relation which the English ordinaries hold to their metropolitan. The English ordinary has exclusive jurisdiction where the goods of the deceased are all situated in his diocese; and the metropolitan has exclusive jurisdiction where notable goods are situated in two or more dioceses. No relation of this kind subsisted between the ordinary and surrogates of New Jersey. The ordinary retained jurisdiction of all cases. The surrogate, acting as his deputy, had also jurisdiction of cases submitted to him, unless some special restriction were inserted in his commission. New Jersey was never subdivided into dioceses. The doctrine of bona notabilia had never any place here. "The power of the ordinary to appoint these officers, seems never to have been questioned. Their acts were recognized by the courts, and they came to be considered as lawful and competent judges of the matters submitted to their cognizance."1 Governor Cornbury arrived in New York, May 3, 1702, to assume the government of that Province. His commission as Governor of New Jersey, dated December 3, 1702, did not reach him unitl July 29, 1703, and on August 10, 1703, he proceeded to his new government, and published his commission at Perth Amboy on the 11th, and at Burlington on the 13th.2 He took the proofs of wills personally, in New York, in some cases of New Jersey wills, by the oaths of one or more of the subscribing witnesses. In other cases he granted letters of administration on the certificates of two justices that the wills had 1 William Pennington, Ordinary, in the matter of Abraham Courson"s Will, in the Prerogative Court, April Term, 1843. 4 N. J. Equity Reports (3 Gr. Ch.), 412-413. "The Jurisdiction of the governor as the ordinary of New Jersey, before the revolution and since, extended throughout the state, and a will, administration or guardianship proved or granted by himself or a surrogate (and he appointed as many as he chose to do,) was valid, without regard to the place where the goods lay. Hence he possessed the prerogative powers of the ecclesiastical jurisdiction, in these particulars." 4 – Griffith"s Law Reg., 1185-6. 2 N. Y. Col. Docs., IV., 955; N. J. Archives, II., 543; III., I. [page xlviii] been proved before them. About September 1702, he appointed Dr. John Bridges, of New York, to act as his surrogate in taking the proofs of wills, inventories, etc.1 Some time after, or on February 28, 1703-4, he appointed a surrogate to act for him "to administer oaths to persons suing out letters of administation," etc., in New Jersey, his choice for the office being Thomas Revell,2 a favority of his Lordship then and afterwards, and living at Burlington, where he kept the Secretary"s office of the Province, being also Register of the West Jersey Proprietors. He instituted the system of keeping the records of wills, administrations and guardianships in books provided exclusively for these purposes. Althought the two Divisions or Provinces of East Jersey and West Jersey were now united into a single Province, under one Governor, the precedent followed for twenty years or more was not easily to be disregarded, and as the land records of the two Divisions were still kept in separate offices – at Burlington and Perth Amboy – so separate sets of books were provided for the records of wills, etc., those for East Jersey being numbered, while letters were used to designate those for West Jersey. The first record of the probate of a will in New Jersey under Lord Cornbury is found in East Jersey Wills, Liber No. 1, page 1, in the office of the Secretary of State, whither the records of conveyances and wills, in the Proprietor"s offices at Burlington and Perth Amboy, were transfered when the State capital was finally located at Trenton, in 1790. This interesting probate record is as follows: "Edward Vicount Cornbury Captain General and Gouvernor in Chief, in and over ye Province of Nova Cesarea New Yorke. 1 John Bridges exhibited the inventory of the estate of Judah Samuel, of Jew York, September 2, 1702. The will of William Giles was proved before John Bridges, Doctor of Law, Septembe 16, 1702. The will of John Symkam was proved before Lord Cornbury in New York, February 21, 1702-3. By order of the Queen, August 8, 1702, Governor Cornbury appointed Bridges to the office of Chief Justice of New York, in April, 1703. The will of Nathaniel Pearsall, a Quaker, was proved before John Bridges, Secretary, March 3, 1703-4. In a letter of November 6, 1704, Lord Cornbury mentions the death of Dr. Bridges. Nowhere is he designated as surrogate, but he evidently acted as such for the Governor. – N. Y. Col. Docs., IV., 1142; V., 185; New York County Wills, in New York Historical Society"s Collections, XXV. (1892), 310, 311, 317, 332, 335. 2 N. Y. Hist. MSS, II, 322; N. J. Archives, III., 290. [page xlix] "To all to whome these presents come or may concerne Greting – Know yee that at Burlington in ye province aforesaid the seaventh day of March ye Last will and1 of Andrew Smith was proved aproved and allowed of by me having whilst he lived and ye time of his Death Goods Chattles and Credits in divers places Within this province by meanes Whereof the full disposition of all and Singular ye Goods Chattles and Credits and the Granteiing the Administrasion of them Also the hearing of Accots Calculation or Recking and the finall Discharge and Disinition2 of the same unto me Solely and not unto any other Inferior Judge and3 manifestly Known to belong and Ye admision of all and Singular the Goods Chattles and Credits of the said deceased Andrew Smith, and his Said last will and Testament in any manner of wayes concerning Is Granted unto Thomas Smith and Elizabeth Smith Executors of ye said Last. Will and Testatment of the said Andrew Smith named Chiefly of Well and duely Administring ye same of makeing a true and perfect inventory of all and singular the said Goods, Chattles and Credits and Exhibiting ye same into ye Secretaries office of ye said Province at or before the first day of Aprill next ensueing and of Rendering a Just and true accot Calculation of Reckning when thereunto he shall bee Lawfully Required. "In Testimony Whereof I Thomas Revell Esqr., Surrogat Commissioned and appointed by ye said Lord Cornbury have hereunto set my hand and Seale this Eight day of March 1703-4. Annoq, Reg. Regn. Anna Secund. "Entered in ye office by J. Bass S. & Reg." 1 [testament] 2 Query: Distribution 3 are _________________________________________________________________