Brick's Estate. This impression is, however, erroneous. The jurisdiction of these courts, before the Revised Statutes, was exactly defined, but, as the revisors found, exceedingly difficult to ascertain. Its history was very complicated, for it had undergone many mutations and changes, and as there were, especially during the colonial period, other tribunals exercising co-ordinate and additional powers, the whole subject became so intermingled that, without knowing exactly what was conferred upon these other tribunals, it was impossible to distinguish what the surrogates did, and what they did not, possess. The information necessary to explain it is now to be gathered from a long series of manuscript records, from contemporary colonial documents, some of which have been published and others not, and from early colonial statutes-with all of which I had occasion some years ago to become familiar, which will enable me to separate this hitherto entangled subject, and show exactly what powers were vested in the surrogates; but to do so it will be necessary to trace the course of this jurisdiction from the earliest period of our colonial history to the passage of the Revised Statutes. When the colony of New York, or, as it was then called, New Amsterdam, was settled by the Dutch, all judicial power was vested in a council composed of the director general, the vicedirector, and the schout fiscal. (1 Col. Doc. of N. Y., 160.) Afterwards a court was established of which the vice-director was the presiding judge, having associated with him members. of the council, and in which the governor or director-general himself occasionally presided. Before this tribunal all matters pertaining to succession of estates, whether real or personal, were disposed of according to the Dutch Roman Law, the custom of Amsterdam, and the law of Aasdom. (The Vertoogh, or Remonstrance of New Netherlands, translated by Dr. O'Callaghan, 39, 59; 1 Col. Doc., 160; 4 Doc. History of N. Y., 69; Daly's Historical Sketch of the Judicial Tribunals of New York from 1623 to 1846, 6, 8, 9; 2 O'Callaghan's History of New Netherlands, 24-31; Albany Records, 20-61.) * On the establishment of the Court of Burgomasters and Sche *This valuable monograph will be found prefixed to E. D. Smith's Common Pleas Reports, vol. i., p. xvii. VOL. XV.-2 Brick's Estate. pens in 1653, jurisdiction of all such matters was transferred to it, with a right of appeal to the Governor and Council. Before this court, wills were admitted to probate, letters of administration granted, curators appointed to take charge of the estates of widows and orphans, executors and administrators were compelled to account, and distribution was decreed. As these duties, however, interfered very much with the ordinary business of the court, a Court of Orphan Masters was established in 1665, which had the power to grant letters of administration, to appoint guardians, and to regulate estates in all cases where it was not specifically excluded from so doing by the words of the testator's will. (Records of the Court of Burgomasters and Schepens, vols. I.-VI.; Lachaire & Van Veen's Manuscript Notarial Registers or Protocols, in N. Y. Common Council Records; Daly's Judicial Tribunals, 17, 18; Street's Council of Revision of the State of N. Y., 20.) After the conquest of the province by the English in 1664, the Court of Burgomasters and Schepens was changed into the Mayor's Court, a name by which it was known for one hundred and forty-six years afterwards, until the present name was given of the Court of Common Pleas. For some years, under the English rule, it continued to exercise the same functions as before, its proceedings being conducted in the Dutch language. The Court of Orphan Masters was discontinued, and the Mayor's Court, for a long period after its proceedings were conducted in English, exercised the same jurisdiction in respect to testamentary matters, and intestate estates of persons dying within the city, as it or the Court of Orphan Masters had exercised previously, with some modifications and restrictions. (Records of Mayor's Court; Records of Wills in N. Y. Common Pleas Court, vols. I. and II.; Daly's Jud. Tribunals, 25, 26.) When the government of the province was committed to Gov. Nicolls, by James II., then Duke of York, a body of laws was framed for its government, afterwards known as "The Duke's Laws," and this code, with such additions as were made to it by the Governor and Council, or at the annual sitting of the Court of Assize, the written instructions received by the governors from the home government, the principles of the common law, together with certain usages and customs derived Brick's Estate. from the Dutch, constituted the law of the province, until the sitting of the first Legislative Assembly, in 1683. By the Duke's Laws, a constable and two overseers were required to proceed to the house of a deceased person, fortyeight days after the death, and inquire respecting his estate, and whether he had left any will. They were required, further, to make an inventory of his effects, appraise the value, and make a return of their proceedings, under oath, to the next Court of Sessions. The province was divided into three ridings, and in each of these ridings there was a Court of Sessions, composed of the justices of peace living within the riding, which was held twice a year. The probate of wills, the granting of administration in cases of intestacy, the final accounting of executors and administrators, together with such compulsory measures as were necessary to compel it, the removal of executors, the distribution of estates, and the appointment of guardians, took place in the first instance before the Court of Sessions, except in the city of New York, where the same jurisdiction was exercised by the Mayor's Court. If the estate, however, exceeded £100, all proceedings upon the probate of wills, and all records in cases of administration, had to be transmitted, duly certified, to the office of the secretary of the province in the city of New York, where they were required to be recorded, and where letters testamentary and of administration in such instances, and the final discharge of executors or administrators, which was called a quietus, were granted by the governor under the seal of the province. The proof and all proceedings took place in the first instance before the Court of Sessions or the Mayor's Court, and the court gave its judgment or opinion, which was transmitted to the governor under the certificate of one of the justices and the clerk, and the act of the governor was simply a formal ratification by the granting of letters or of discharges. In some instances the governor gave his judgment upon the construction of a will, and Governor Andre granted letters without any proceeding in court, but these were exceptional instances and of rare occurrence. In all proceedings before them, the Court of Sessions had the power of granting a rehearing, or, as it was called, a "review," and upon such review might in their discretion admit new evidence-a power, however, which was not Brick's Estate. continued in the courts which succeeded, in 1691, to the civil jurisdiction of these tribunals. (The Duke's Laws; Collection of the N. Y. Historical Society, vol. I., 315, 404, 412, 415; Records of Wills in N. Y. Surrogate's Office, lib. I., 1, 3, 10, 19, 21, 28, 31, 38, 41, 67, 90, 91, 105, 190, 195, 270, 283, 355, 376, 377, 442; lib. II., 29; lib. III., 191; lib. IV., 129; Book of Inventories, vol. I., 1, 5; Daly's Jud. Trib., 23-30; 2 Rev. L. of 1813, app. V.) This state of things continued until 1686. In the letter of instructions transmitted in that year to Governor Dongan, he was, among other things, directed to see that the ecclesiastical jurisdiction of the Archbishop of Canterbury should take place in the province, "as farr as conveniently may bee," except the collating of benefices, the granting of marriage licenses, and the probate of wills, which were reserved to the governor; and in a similar letter of instructions to Sloughter, in 1689, the ecclesiastical jurisdiction of the Bishop of London was added. (3 Col. Doc., 372, 688, 820.) The ecclesiastical jurisdiction of the Bishop of London, so far as it related to testamentary matters or the administration of the estates of intestates, was limited to cases where the effects of the deceased were exclusively within the bishop's diocese, and the jurisdiction was exercised by a court held in the diocese by the bishops, commissary, or surrogate; but if the deceased had left effects in more than one diocese, then the Archbishop of Canterbury had exclusive jurisdiction, and the matter was heard before his delegate in the Prerogative Courts, of which there were two, the prerogative offices at York and Canterbury. (Ayliff's Parergon Juris Canonici Anglicana, 192, 534, Lond., 1726; Gibson's Codex, 465, 471, 472, 478; Godolphin's Orphans' Legacy, 106; 4 Inst., 335; Williams on Ex., 248, 4 Lond. ed.) After these instructions were received, a change took place in the course of procedure. The Courts of Sessions and the Mayor's Court continued to exercise the same functions as before, but the governor or the secretary of the province also took proof of the execution of wills and of the inventory and appraisement of estates; and in 1691, under the administration of Lieut.-governor Ingoldsby, a clause was inserted in all letters testamentary or of administration, that the granting of such letters, the hearing of accounts, the reckoning of administration, Brick's Estate. and the granting of the final discharge, belonged to the governor, and not to any inferior judge. If a will was proved before the secretary, he annexed a certificate that "being thereunto delegated," the will had been duly proved before him; and an authentication, in the name of the governor, in the form that continued in use down to the Revised Statutes, that the will had been "proved, approved, and allowed," under the prerogative seal, was annexed, and the whole was recorded in the secretary's office-the validity of the record being attested by his signature. In this way a distinct department grew up in the secretary's office, which took the name of the Prerogative Office, and the records connected with it the name of the Registry of the Prerogative, and by 1691, the whole became distinguished by the judicial appellation of the Prerogative Court. (Records of Wills in N. Y. Surrogate's Office from 1683 to 1690 and 1691, 182, 229.) The Legislative Assembly which was convened in 1683, having been established, was again reinstated in 1691, and at its second session, in 1692, an act was passed (Laws of N. Y. from 1691 to 1751, Smith & Livingston's ed., I., 15), by which it was declared that the probate of all wills and letters of administration should thenceforth be granted by the governor, or such person as he should delegate, under the seal of the Prerogative Office; that all wills in the counties of Orange, Richmond, Westchester, or Kings, should be proved in New York before the each governor or his delegate, and in the remote counties in the Courts of Common Pleas tribunals which had been created in county by an act of the previous session; and where the proof was taken in the Courts of Common Pleas, it was required to be certified under the hand of the judge and clerk to the secretary's office in New York, where probate was granted. Where the estate was under £50, the Courts of Common Pleas were authorized to admit the will to probate, or to grant letters of administration, and from their decision an appeal was allowed to the governor, or to the person he might delegate to act for him. How this jurisdiction was then understood appears from a letter written the year following by Clarkson, the secretary of province, to the Lords of Trade. (Col. Doc., IV., 28.) "The governor," he says, "discharges the place of the ordinary (the bishop) in granting administration and in proving wills, and the |