Wills: Part II - 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 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 --------------------------------------------------------------------- [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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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. --------------------------------------------------------------------- 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 ---------------------------------------------------------------------