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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 governor or his delegate, and in the remote counties in the Courts of Common Pleas-tribunals which had been created in each 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 the 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

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the secretary of the province acts as registrar." The secretary of the province was an officer independent of the governor, holding his appointment from the Crown, the duties of which he discharged chiefly through a deputy. Governor Fletcher, immediately after the passage of this act, in 1692, appointed this deputy his delegate, and he took proof of wills, which were afterwards approved and allowed in the name of the governor. In 1702, Lord Cornbury appointed as his delegate a Dr. Budges, who was afterwards chief-justice of the province. The proof of wills was then taken before him, and upon his certificate letters were granted, by the deputy secretary, in the name of the governor. Before Dr. Budges also, executors and administrators were sworn faithfully to execute their trust; the renunciation of executors was formally made before him, and he took proof of inventories. This gentleman was a man of legal acquirements, and had received in England the degree of doctor of laws, and he was the first in the province to make use of the title of surrogate, adding it after his signature to all documents. (Rec. of Wills, VII., 3, 64, 87, 93, 129, 169, 212.) Dr. Budges having been appointed chief-justice, Cornbury appointed the deputy secretary his delegate, and this officer, with the exception of a few interruptions or changes, continued to act as the governor's delegate down to the time of the Revolution. The provision in the act of 1692, which required all wills in the counties named to be proved in New York before the governor or his delegate, was found to be exceedingly onerous. Travelling then was very different from what it is now, and to bring witnesses in all such cases to New York was attended with difficulty and expense. In view of this inconvenience, Cornbury, acting upon the previous precedent of Ingoldsby, and giving what was, perhaps, an allowable construction to the act of 1692, commissioned delegates to act for him in all of these counties; and at a later period under future governors, delegates were appointed for the more remote counties. (Rec. of Wills, VII., 212, 476, 489; VII., 18, 19; XII., 187, 199; XIII., 891; Book of Commissions, III., 473; V., 235, 412, 418, 420; VI., 4.) At the same time a local delegate was appointed for the city and county of New York, distinct and apart from the secretary of the province or deputy secretary, who were also commissioned to act as delegates. In fact an attempt was made to carry out, in con

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formity with the instructions that accompanied the governor's commission, the distinct jurisdictions in England by the commissary of the bishop diocesan, and the ordinary or delegate of the Archbishop of Canterbury; or what was then known as the Court held by the Commissary of the Bishop, and the Prerogative Court, held by the delegate of the archbishop or metropolitan. (Gibson's Codex, 465, 1035.) If the deceased had at the time of his death effects in more than one county, or as the official documents expressed it, "goods, chattels, and credits in divers places within the province," then the governor exercised exclusive jurisdiction. The will was proved before his delegate in the Prerogative Court. Letters were issued in the name of the governor under the Prerogative seal, attested by the signature of the secretary or the deputy secretary, and the whole was recorded in the registry of the Prerogative Court. If the deceased, however, had effects only in one county, then the will was proved before the local delegate of that county. He gave a certificate of the fact, and the will was then taken to the Registrar's Court, where it was approved and allowed, letters-testamentary were granted in the name of the governor, the seal of the Prerogative was affixed, and the whole was recorded in the registry of the court. Letters of administration could not be obtained only in the Prerogative Court. By the act of 22, 23 Car. II. (cap. 10), administrators were required to exhibit under oath an inventory of the personal estate of the deceased, in the registry of the court that granted letters; to make a true and just account, also under oath, to the court, of their administration, by the day fixed in their bond, which was not less than a year; their accounts were to be examined and allowed in that court, and they bound themselves to pay to such persons as the judge of that court should limit or appoint. This jurisdiction in the colony was vested in the Prerogative Court, executors and administrators accounted before it, and the decree upon final distributions was made there. It had the power to issue citations to compel the attendance of witnesses, and it heard appeals, where probate or administration was granted by the Court of Common Pleas; in addition to which it exercised a jurisdiction more especially ecclesiastical, such as the granting of marriage licenses, licenses to schoolmasters, and in taking proof of the due installation of clergymen. (Rec. of Wills

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in N. Y. Surr. Office, II., 39, 104, 107; III., 149; IV., 129, 182, 213, 221, 230, 250, 328; V., 286, 333; VI., 1; VII., 474, 484, 491; VIII., 18, 19; XII., 197, 199; XIII., 891; XXVIII., 106; Book of Inven., I., 5; Rec. of Admin., I., 2; N. Y. Col. Doc., VII., 830; VIII., 322, 413; N. Y. Rec. of Marr., Albany, 1860; Maunsell's Annals of Albany, III., 327; IV., 16.)

The delegate who represented the governor in this court, or, as he might be called, the general delegate, was either the secretary of the province or the deputy secretary-generally the latter. He was empowered by his commission to admit wills to probate, to grant letters of administration, and for that purpose might "affix the prerogative seal of the province thereto, without any further fiat or allowance." (Book of Coms., V., 62.)

No such general powers were conferred on the local delegates. They were authorized by their commissions to take proof of the execution of any will made by a person residing in their county, to swear executors or administrators that they would faithfully execute their trust, or that the inventories or accounts to be exhibited by them in the Prerogative Court were true, and to supervise the estates of intestates. This power of supervising the estates of intestates was in consequence of a clause in the act of 1692, which provided, that where any person died intestate, two freeholders of the town, to be annually elected, should inquire into the real and personal estate of the deceased, and make an inventory of it, and return it, under oath, to the person in the county delegated by the governor to supervise the estates of intestates; that the persons delegated should cause the goods and chattels to be sold, retaining the proceeds for those who should appear and have a right to claim them; and that if the deceased left orphans, and there was no widow or next of kin, that the person so delegated by the governor, should have the administration and care of the intestate's estate, and the guardianship of the persons and estates of the orphans, until they are married or reach the age of twenty-one; a provision that was superseded and became inoperative by subsequent legislative enactments. (Book of Commissioners, III., 473.) With the exception of this provision, the powers of these legal delegates were not much greater in fact than that of commissioners of deeds in our day. They did little else except to administer formal oaths, for if any

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contest arose upon the execution of a will, it was settled either in the Prerogative Court, from which alone letters could issue, or in the courts of record where it had to be proved in what was then called the solemn form per testes, to make it binding upon real estate. At first, these local delegates bore only the name of delegates, but about 1746 they began to assume the title of surrogates, and were so designated thereafter, in their commissions. There were thus, as in England, a local and a general tribunal, with this distinction, however, that the local tribunal here was much more limited in its powers; and further, by the fact, that its judicial acts, such as taking the proof of wills, had to be approved and ratified under the seal of the Prerogative Court.

In 1743 an act was passed for the more speedy recovery of legacies. By this act any person entitled to a legacy or a residuary estate under a will, or to any share in the estate of an intestate, might bring an action against the executors or administrator, after it became due, or, if no time was fixed by the will, after a year had expired, to compel its payment, in the Supreme Court or any court of record, if it amounted to more than £20, or if under that sum in a Court of Common Pleas; and if a plea of want of assets was put in, the court was empowered to appoint auditors to examine the accounts of the executor or administrator, who were to report how the account stood, and what sum would remain after the payment of debts, and what proportion the plaintiff was entitled to. The court was empowered to correct any mistakes or errors in the accounts reported, and for the amount found to be due the plaintiff had execution, which act continued in force down to the Revised Statutes. (Laws of N. Y., Smith & Livingston's ed., I., 316; Street's N. Y. Council of Revision, 281.) This act and the general jurisdiction exercised by the Court of Chancery in such cases, furnished a much more effectual remedy than the Prerogative Court could afford, and the practice of accounting in that court, therefore, fell into disuse, except when an executor or administrator filed his account with the view of obtaining his discharge, and in time the common-law courts were but rarely resorted to, as the remedy in equity was more efficient and better adapted for adjusting the rights of all parties.

I have thus given, as far as it is now possible to ascertain it, the exact jurisdiction exercised by the Prerogative Court. No