Chapter V

In the preceding pages brief references were made to the register’s
court and orphans’ court. The rise of the latter tribunal from a
humble beginning to its present important position is sufficiently
interesting to warrant a more detailed account of its functions
and growth. However unobtrusively the work of its judges may be
performed, it should not be permitted to escape attention, for, as
Judge Duncan grimly puts it, “as sure as we descend into our graves,
so sure into this court we must come.”[490]

During the American colonial period the settlement of the estates of
decedents belonged, in England, principally to the ecclesiastical
courts. Briefly, the territory of England was divided into two
provinces, Canterbury and York, each presided over by an archbishop
or metropolitan. Each of the provinces was divided into dioceses.
With exceptions, which it is unnecessary to particularize here,[491]
the bishop of the diocese where the decedent had his last domicile
had the power to appoint the administrator and settle his accounts,
and where there was a will, it was proved before him and letters
testamentary issued thereon. When so acting, he was called the
“ordinary” and held what was called the “consistory court,” either
in person or by a deputy styled his commissary. From this court an
appeal would lie to that of the archbishop and thence to the king
in chancery, that is, to the “court of delegates,” appointed by the
king’s commission under the great seal.

Here and there were districts called “peculiars,” exempt from the
jurisdiction of the ordinary and subject to the metropolitan only.
The court of appeal of the Archbishop of Canterbury was called the
Court of the Arches, because formerly held in the church of Saint
Mary le bow (_Sancta Maria de arcubus_), and was presided over by
the “dean of the arches.” If the decedent left _bona notabilia_ or
chattels to the value of one hundred shillings in two different
dioceses or jurisdictions, then probate or administration belonged
to the archbishop, by way of special prerogative, and the matter was
cognizable in the “prerogative court” before a judge appointed by the
archbishop.[492]

Such a system was wholly impractical in America, where the principle
of an established church, even in the most loyal colonies, never
gained more than a precarious foothold. It would have met with the
opposition not only of the many sects into which the emigrants were
divided, but also with that, probably, of the common lawyers, whose
jealousy of the canonists and civilians was then at its height.
But the feeling that probate and administration were something
separate and apart from the common law was sufficiently strong in
most of the colonies to lead to the creation of separate tribunals
for the exercise of jurisdiction over decedents’ estates, and to
the retention of, at least, a supervision over such matters by the
governor and council.[493] By a law of the colony at Plymouth of 1633
wills were to be probated before the governor and council,[494] while
in Maryland in the records of the court held at St. Mary’s by the
proprietor and his council, beginning 1637, are many instances of
the grant of probate or administration as well as of the settlement
of executors’ accounts.[495] In the Massachusetts Colony probate of
wills was to be made at the county court, but by an act of 1652 two
magistrates with the recorder or clerk of the county court meeting
together were authorized to allow wills and grant administration,
reporting to the county court.[496] The charter of 1692 made the
governor and council a court of probate, although these officials
seem to have exercised their jurisdiction through the county judges,
with an appeal reserved to the governor and council as a supreme
court of probate.

As we have previously seen, the Duke of York’s laws for the
government of New York were in 1676 put in force in the settlements
on the Delaware by Governor Andros. These laws contained minute
provisions for the care of the property of decedents. Upon the
death of any person it was made the duty of the constable with two
overseers of the parish to “repair to the house of the deceased
party to enquire after the manner of his death and of his will and
testament and in case none doth appear or shall be produced, it may
be taken for granted that the person died intestate,” whereupon
security was to be taken for the care of the estate until the next
court of sessions, where all cases of probate and administration were
to be adjudged. Administration was to be granted to the widow or
children upon the entry of security and an inventory filed.

“But in case the deceased Dye without widow or Child, then the
estate, for the better improvement thereof shall be sould by order
of the Court at an Outcry, and the purchasers all puting Security,
and Acknowledging Judgment for their debt which by the Court shall
be Assigned to the several Creditors of the decendant, and paid
according to the priority of Law and the Surplusage remaining, if
any, to be delivered to the next kinsman of the descendant, if he
appears or if none prove himself such within one year and six week,
Then the Court to give an accompt of the said Surplusage to the
Governour. And when the widow or Child Administers the surplusage
after debts paid and the funerall Charges according to the quality
of the person allowed for, shall be equally divided between the
Widow and Children, viz. one third of the personall Estate to the
widow and the other two thirds amongst the Children, provided the
Eldest Sonne shall have a double portion, and where there are no
Sonnes the daughters shall Inherit as Copartners, and if any of
the Children shall happen to dye before it come to age his portion
shall be divided amongst the surviving Children.

“If any person shall renounce his Executorship or that none of the
friends or kindred of the deceased party that shall die intestate
shall seeke for Administration of such persons Estate, then the
Constable of the Town where any such person shall die, shall give
notice thereof to the next Court of Sessions; that so the Court
may take order therein, as they shall think meet, who shall also
allow such Constable due recompence for his pains. But if the
Constable shall fail therein, he shall forfeit forty Shillings to
the publigue Treasury.

“That the Clarke of the sessions when he carries the Probates or
Commissions of Administration to be signed do then also Certify
unto the recorders Office at New York, the name of the testator
or the party deceased the Executors or Administrators and their
Security, the County and Parrish where they dwelt And the Court
wherein the Administration is granted to the end that strangers and
other Creditors invested in the Estate may be the better Enabled to
find out the Records in which the accompts of the estate is entered
and be informed how they may come to their just dues.”[497]

Executors failing to probate wills and persons intermeddling with the
goods of a decedent were made liable for the debts of the decedent
whether the estate was sufficient for that purpose or not.

The conferring of probate jurisdiction upon the courts of sessions
is an indication of New England influence in the framing of the
laws. About 1686 instructions from the home government reserved
to the governor the probate of wills, after which the governor or
the secretary of the province exercised this jurisdiction, and a
department grew up in the secretary’s office known as the prerogative
court, whose jurisdiction was exercised in minor matters by local
delegates. The prerogative court was not succeeded by a court of
probate until 1778.

In the territories on the Delaware the ordinance of 1676, putting
in force the Duke of York’s laws, did not expressly concede to the
local courts the right to grant administration or probate wills,
and such matters were in the hands of the authorities at the seat
of government. A case in New Castle against a deceased person was
on April 4, 1677, continued until the “letter of administration bee
come from New York.”[498] Prior to this, the justices of the court at
New Castle, in a letter to Governor Andros, dated February 8, 1677,
giving an account of local affairs, made the following request:--

“That yo^r Honor will bee pleased soe far to Impower the Commander
Capt^n John Colier or the Court that wills may bee proved before
them and Letters of Administracon granted accordingly w^{th} ye
fees for the estates of the most part of the People in these parts
are so Inconciderable that otherwyse the Charges & Expenses of
going to yo^r honor Att New Yorke for to obtaine the same may Prove
mutch to the hinderance of such Estates.”[499]

To which the governor replied in a letter dated April 6, 1677, and
read at the court held June 8, 1677:--

“The severall Co^{rts} May att a session take proofes and security
and grant administracon of wills but if above twenty pounds to
remit the same here to the secretary’s office to bee recorded.”[500]

The court availed itself of this permission at once and several wills
were proved at this term of court. The procedure in one case will
serve as an illustration. Rebecca Eghberts, widow of Barent Eghberts,
deceased, produced the will of her husband dated October 20, 1674.
The two witnesses swore that they were present and saw the testator
sign the will. The court then granted “administration” according to
the will and directed that it be recorded. In other estates, where
the decedents died intestate, administration in the proper sense was
granted.

Under the power conferred upon William Penn in the charter of
Pennsylvania, to appoint judges, magistrates and other officers, it
was provided in the laws agreed upon in England that there should
be a register for births, marriages, burials, wills and letters of
administration distinct from the office for enrolling deeds.[501]
This provision was incorporated in the “Great Law” or body of laws
passed at Upland, December 7, 1682,[502] and Christopher Taylor was
appointed Register General for the province and territories. The
register general kept his office at Philadelphia and commissioned
deputies to act in the respective counties. Taylor, according to
Proud,[503] was a well educated Yorkshireman, an eminent Quaker
preacher and the author of several tracts in defense of their
principles. He was also a member of the first provincial council, but
did not live long to enjoy his honors, dying in the early part of
1686. His own will is No. 26 on the register.

The first will on record is that of Thomas Fream, proved, apparently,
October 10, 1682. Wills and administrations were kept in separate
volumes, as is still the practice. The first entries are brief
and informal and it probably took some time to settle the forms
and practice of the office. The following entry will serve as an
example:--

“Philadelphia in the Province of Pennsylvania 2 mo/6 1683.

“Wheras Mary Mason Relict of the deceased, John Mason did the day
of the date thereof appear before me, Christopher Taylor, Register
Gen^{ll} of the said Province, &c. desiring to take out Letters
of Administration upon the estate of the said John Mason and
having given in and attested an Inventory of the said estate with
sufficient security to pay his debts and dispose of the remainder
according to law I do by virtue of my Commission from William Penn,
Proprietary and Govern^r of the said Province and Territories grant
Letters of Administration to the said Mary Mason for the ends and
purposes aforesaid. Under my hand and the seal of my office.

“Christopher Taylor,
“Regist. Gen^{ll} (SEAL)”

William Clark, the deputy register for Kent and Sussex counties, had
served as a justice in the court at the Whorekills under the previous
government and became chief justice of the provincial court in 1703.
One of his entries is as follows:--

“Whereas William Darnall of the County of Kent, Marchant, did the
day of the date hereof appeare before me, William Clark, deputy
Register of the Countys of Sussex and Kent in the territories of
the Provience of Pensilvania; and desireth as princable Creditor
to take out Letters of Administracon upon the estate of Andrew
Stocker, deceased, And haveing Given me Good and sufficient
securiety to bring in unto me a true inventory of the estate that
the said Andrew Stocker dyd possessed of within one moneth after
the date hereof soe fer as the same shall com to his knowlidge And
also to pay his debts soe fer as the Estate will extend and dispose
of the Remayner According to Law, I doe therefor by the authority
of William Penn, Proprietary and Govern^r of the Provience of
Pensilvania and the Territories thereunto belonging & by commicon
from Christopher Taylor, Register General of the provience of
Pensilvania and the Counties of Sussex and Kent Grant Letters of
Administracon to the said William Darnall for the ends and purposes
A for said. Given under my hand and seale of my office the 18th day
of mo/7 In the year of our Lord according to the English account
1683.

“William Clark.”[504]

In the same volume are recorded inventories of estates as well as
records of births, deaths and marriages. The following is curious:--

“These are to give notice unto all persons whatsoever that there
is a Marriage shortly intended to be solmonized Betwene Abraham
Westron, widdower, and Mary Smith, widdow, if any person have
anything justly to object wherefor the said parties should not be
Joyned together in marriage Let them Give in there Exceptions unto
me to the end that the same may be prevented or elce forever after
to be silant in that case, dated at Lewis the 5 day of the mo/8
1683.

William Clark.”

During its existence the office of register general was held by men
of importance, including Governors Blackwell, Markham, Evans and
Gookin, who probably kept it themselves on account of the fees, while
among the deputy registers were Patrick Robinson and David Lloyd
whose activities in political and legal affairs have been referred to
before.

The duties of the register general and his deputies were not
defined by legislation until the passage of the Act of January 12,
1705,[505] an elaborate measure relating to the probate of written
and nuncupative wills. This act in its last section provided for the
appointment of the register general by the governor and required
him to keep an office at Philadelphia and appoint deputies for the
other counties, as had been the practice. All of these officers were
required to give bonds for the faithful performance of their duties,
which were to be recorded in the orphans’ court and to be for the use
of parties aggrieved.

Failure to keep these positions filled seems to have caused
dissatisfaction, for an act was passed June 7, 1712,[506] which,
after reciting that “no register has been commissioned and deputies
constituted in each county as the act (of 1705) directs,” goes on
to enact that in case of the removal of the register general by
death, or otherwise, another fit person should be commissioned within
three weeks; that if the governor failed to act, the agents of the
proprietor should appoint, and if they too failed, the judges of the
common pleas of Philadelphia should make the appointment. Governor
Gookin thought that two months’ time was little enough to appoint the
officer, and that the office should be kept at Philadelphia for the
whole province, for the greater security of the public. The distance,
he said, was no objection, for it was well known that people in
England traveled much farther on such occasions.[507] Nevertheless he
finally agreed to the bill which became a law and was approved by the
queen in council February 20, 1713-4.[508]

In this statute it was also enacted--

“That where objections are made or caveats entered against the
proving of any will or granting letters of administration, and
where there is or shall be occasion to take the final accounts of
executors or administrators, or make distribution of decedents’
estates, the register-general and his deputies, respectively,
shall, in every such case, call to their assistance two or more of
the justices of the said court of common pleas for the county where
they are concerned, who are hereby empowered and required to give
their assistance accordingly to decide the said caveats and matters
in controversy, settle the said accounts, make distributions, and
do all such other judicial acts as do or shall belong or ought of
right to be done by any person or persons having power by law to
take probate of wills and grant administration.”[509]

This is the origin of the register’s court, as to which more will be
said hereafter. It will be noticed that the act seems to contemplate
the taking of accounts of executors and administrators before this
court, but this jurisdiction, if ever exercised, must have been very
limited, for the orphans’ court already had jurisdiction of such
accounts in cases of intestacy[510] and where the interests of minors
were involved, a jurisdiction defined and amplified by an act passed
in the following year.[511] When, more than one hundred years later,
the act of 1712 was invoked as authority for an attachment issued
by the register’s court to compel an administrator to account, the
supreme court in discharging the prisoner on a writ of habeas corpus
said, per Tilghman, C. J.:--

“This law has never been expressly repealed, and so far as concerns
caveats, it has been always in force. But the final settlement
of the accounts of executors and administrators, and making
distribution of the estates of intestates, having been expressly
given to the Orphans’ Court by the Act of 27 March, 1713, the
jurisdiction of the Register’s Court, on these subjects, has been
supposed to be taken away by implication, and for a long course
of time the practice has been to settle final accounts in the
Orphans’ Court and not in the Register’s Court. * * * We are of
opinion, that at the time of the adoption of this constitution, the
Act of 1712, so far as concerned the final settlement of accounts
of executors and administrators, was not in force, being either
repealed by implication or obsolete.”[512]

As a matter of fact the Orphans’ Court Act of 1713 was introduced
in the assembly on February 10, 1712, and passed on the sixteenth
of the same month, before the register’s act, but was held over
by the governor, as too important to be hurried, and submitted to
Judge Mompesson for his opinion. The judge returned the bill to the
governor March 25, 1713, with several proposed amendments. To these
the assembly refused to accede and the governor, considering the
amendments not essential, agreed to the passage of the bill, which
became a law on March 27, 1713.[513]

During the administration of Governor Fletcher the council heard an
informal appeal from the probate of a will by Markham, as appears in
the minutes of the council for June 5, 1694.

“His Excellie BENJAMIN FLETCHER.

“Wm. Markham, Esq^r., Leiv^t Governo^r.

And^r Robeson, }
pat. Robinson, } Esq^{rs}. Wm. Clarke, } Esq^{rs}.
Wm. Salway, } Geo. forman, }

“His Excellie Having ordered the Hearing of what might be offered
ag^t the will of peter de buc, deceased, and severall things being
offered by sundrie persons, wherein they seem to insinuate there
was fraud and Collusion in the making thereof, His Excellie did,
upon hearing therof, dismiss the people, and desired the Councill
to give their opinions upon the whole matter, Whether or not the
will, which was proved befor the Leiv^t Governo^r, Can be allowed
or not; Which being putt to the vote amongst the members of
Councill, was caried in the affirmative, & his Excellie did allow
yrof.”[514]

The care of the persons and property of orphans was a subject that
seems to have particularly appealed to the philanthropic founder of
the commonwealth. In England, the lord chancellor was the supreme
guardian of all infants and the conduct of both guardian and ward
was within the controlling jurisdiction of chancery.[515] As we have
already seen, that court was not in favor with Penn or his fellow
colonists, and, in respect to this branch of its jurisdiction, they
were lucky enough to establish a substitute founded on precedent and
successful in operation, the orphans’ court.

The name as well as the early jurisdiction of this court was borrowed
from the Court of Orphans of the city of London.[516]

“It has been resolved,” says Bohun,--

“That there hath been a Court of Orphans time out of mind in
London; and that there hath been a Custom, if any Freeman or
Freewoman die, leaving Orphans within age unmarried, that the said
Court have had the custody of their Body and Goods: And that the
Executors and Administrators have used, and ought to exhibit true
Inventories before them; and if any Debt appear due, to become
bound to the Chamberlain to the use of the Orphans in a reasonable
Sum to make a true Account upon Oath of them, after they have been
received and if they refuse, to commit them till they will become
bound; and this was adjudged to be a reasonable Custom.”[517]

The court, it is further said, was held before the lord mayor and
aldermen of the city of London. The common sergeant of the city took
the inventories and accounts, while all securities for the orphans’
portions were taken in the name of the city chamberlain. The court
could commit the custody of an orphan to such person as they thought
fit, even when the father had devised the custody, and if any person
married an orphan without the consent of the court, such person might
be “fined by them according to the Quality and Portion of the Orphan;
and unless such Person do pay the Fine, or give Security to pay it,
the Court may commit him to Newgate, to remain there till he submit
to their Orders.”

Upon the death of a freeman the widow or executor was summoned to
bring in an inventory and appraisement, and when the inventory was
so exhibited, the executor was bound either to pay the money due the
orphans into the chamber of London, where interest was allowed, or to
find security by bond or recognizance to pay the amount due. When the
orphans came of age or married, with the consent of the court, they
were brought into court with a person to prove their age and there
acknowledged satisfaction for their respective portions.

Although somewhat paternal, according to our view, the system was an
undoubted privilege when compared with the burdensome incidents of
feudal wardship, and, even in 1682, when wardship had been abolished
over twenty years,[518] the citizen preferred his own court, to
chancery, with its aggravating delays and extortionate fees. Once
indeed, the city fathers betrayed their trust. King Charles II
succeeded in obtaining from the city a loan of the orphans’ moneys,
paying interest thereon until 1671, when he closed the Exchequer
“and thereby became not only Bankrupt himself, but occasioned the
Chamber of the said City to be so also: whereby many Thousand of
City Orphans (_heu Pietas Regum!_) were reduced to misery and
want,”[519]--a wrong that remained unredressed until the reign of
William and Mary.[520]

At the second session of the legislature under the proprietorship of
Penn, March 10, 1683, it was enacted--

“That the Justices of each respective County Court, shall sitt
twice every year, to inspect and take Care of the Estates, usage,
and Employment of Orphans, which shall be called The Orphans’
Court, and sitt the first third day of ye week, in the first and
eighth month yearly; That Care may be taken for those, that are not
able to take care for themselves.”[521]

The same assembly also provided that executors and guardians should
give bonds and--

“If any man shall refuse this honest Care and Charge in the
government, Unless hee hath five children to take care of, or is
already executor to one Will or hath persons nearer related to
him, who in all likelihood will impose that Charge upon him; hee
shall be fined at the Discretion of the Governor and Provincial
Council.”[522]

Whether this court was suggested by Penn himself or by one of his
followers the minutes of the council do not show. But, at any rate,
the idea commended itself to the proprietor, for he mentions it in a
letter to the Free Society of Traders dated August 16, 1683. “Spring
and fall,” he writes, “there is an orphans’ court in each county to
inspect and regulate the affairs of orphans and widows.” In fact the
minutes of the Bucks County court show Penn presiding in an orphans’
court contemporaneous with if not prior to the passage of the act.

“Pennsilvania Bucks SS. At an orphans’ court held by the King’s
authority in the name of William Penn, Proprietary and Governor
of the said Province and territory thereto belonging at Gilbert
Wheelers’ for the aforesaid County, the 4th day of the first month
1683, to take account of improvements and usage of estates of
Orphans.

“Present, the Governor, William Penn, Justices--James Harrison,
Jona Otter, Wm. Yardley, Wm. Berks, Thomas Fitzwater and Phineas
Pemberton Clark.

“The next meeting held by adjournment 11, 1 mo. 1683, Present--Wm.
Penn, Governor, James Harrison and Wm. Berks, Justices.”[523]

At this time some of the business that belonged to the register
general and much that afterwards fell to the orphans’ court
was transacted in the provincial council. In several instances
administrators were appointed.[524] One estate that seems to have
given some trouble was that of Christopher Taylor, the former
register. It appeared that he had named the proprietor and another
as his executors, both of whom were absent at the time of his death.
Administration was refused to the son as contrary to the intention
of the will and a temporary administrator was appointed, who was to
account to the executors or the council.[525]

The most frequent applications to the council were those for the
sale of land for the payment of decedents’ debts. Penn in the laws
agreed upon in England had incorporated a provision that lands and
goods should be liable for debts except where there was legal issue
and then all the goods and one third of the land only,[526] which
provision was incorporated in the Act of December 10, 1682.[527] The
orphans’ court was by the Act of 10, 3 mo., 1688, empowered, with
the approval of the governor and council, to permit the widow or
administrator to sell lands to defray debts, educate the children,
support the widow and improve the remainder of the estate.[528] After
passing through minor changes of form this act was supplied by the
Act of November 27, 1700,[529] which gave the jurisdiction to the
orphans’ court without the intervention of the council. This act was
disapproved by the queen, on the advice of the attorney general, as
not sufficiently protecting marriage settlements and the interests
of the children,[530] but the same provisions were incorporated in
the intestate Act of January 12, 1705,[531] in terms carefully framed
to meet these objections and the act became a law. It is interesting
to note that what was perhaps the first order of sale for debts was
verbal, as would appear from the following extract from the minutes
of the council:--

“The Petition of Mary Mason, Widdow, was Read; Requesting y^e
Councill to Confirme y^e Sale of Lotts and Lands sold by y^e
said Widdow, by y^e Gov^{rs} Verball order, to pay her Deceased
husband’s Debts, and for subsistence of herselfe and Children.

“James Harrison being prosent & attesting y^e truth of y^e Order,
and she declaring y^t y^e Land sould was y^e Citty Lotts, and
y^e Liberty Land, and but two hundred Acres out of one thousand,
and not y^e Land y^t was Improved; y^e Councill ordered a
Confirmation.”[532]

It will be noticed that the widow took the precaution to have the
verbal order confirmed. Another illustration may be given which
leaves the reader in some doubt as to the miracle proposed to be
accomplished with the fund:--

“Att a Council Held att Philad. die Lunæ, 1st July, 1700.

Present:

“WM. PENN, pro^r and Governo^r

Edw^d Shippin, Wm. Clark, Thomas Storie.
Rt. Turner, John Moll,

“Upon reading the petion of Sarah Gibbs, widdow, setting forth y^t
Her Husband Latelie dyed, Leaving her much in debt, & the charge
of a sucking child, & having nothing wherwt to pay y^e sd debts
but y^e shell of a smal house, unfinisht, & a Lott valued att 50£,
yrfor, requesting y^e Go^r & Council to allow, permitt, & authorize
her to make sale yrof, towards y^e defraying of sd debts, educaon
of sd infant & her support, according to the Laws and Customs of
sd province. Wheron Rt. turner signified y^t y^e sd allegaons wer
true, y^e circumstances qrof being to him well known.

“Itt was yrfor Ordered y^t sd Sarah Gibbs be pmitted, allowed &
authorized, & is hereby by y^e Go^r & Council pmitted, allowed &
authorized, to make sale & conveyance to anie pson qtsoever, of y^e
sd house & Lott, wt its improvments and apptenances, & to ym & y^r
Heirs & assigns for ever, towards y^e defraying her just debts, y^e
educaon & maintainance of sd infant & her owne support, according
to y^e Laws & Customs of sd province, to Hold to y^e sd pchasers
yrof & y^r heirs & assigns, & to y^r use & behoofe, in fee simple &
estate of inheritance forever.”[533]

There does not appear to have been any express statutory directions
as to the distribution of decedents’ estates in general until
June 4, 1693, when at the stormy session of that year a bill was
passed relating to the distribution of decedents’ estates, the
order of payment of debts and the disposition of the residue of
real and personal estate, all of which distributions “as well of
the Testate’s as intestate’s estate are to be made by the Register
General for the time being, within twelve months after the Decedent’s
Death.”[534] The distributees were required to give refunding bonds
to the register general. It was further provided that all executors
and guardians of persons under age should give bond to the orphans’
court. All of these provisions were substantially re-enacted in the
Acts of May 24, 1697,[535] and of November 27, 1700,[536] except that
in the latter act the distribution was to be made by the “registers
of the counties.” The last act was disapproved by the queen.

The jurisdiction of the orphans’ court, in matters of accounts, was
in some degree widened by the judiciary Act of October 28, 1701,[537]
an act which we have already seen failed to meet the approval of
the privy council. By this act the orphans’ court was not only
given jurisdiction over all executors, administrators and trustees
accountable for lands or chattels belonging to orphans or minors,
but it was further provided that those who filed inventories, gave
bond or made accounts in the orphans’ court should not be obliged to
account to the register general’s office. By the Act of January 12,
1705-6,[538] relating to intestate estates, complete jurisdiction
over the settlement of administrators’ accounts and the distribution
of the surplus after payment of debts was conferred upon the orphans’
court. By this statute, which was allowed to become a law, the
orphans’ court may be said to have finally departed from the limited
scope of its London prototype to enter upon a constantly widening
field of activities.

The act, however, which is the principal source of orphans’ court
jurisdiction is that of March 27, 1712-3,[539] passed, as stated
in the preamble, to take the place of the prior acts repealed by
the queen. It is too long to give in full, but, briefly stated, the
justices of the court of quarter sessions were empowered to hold a
court of record called the orphans’ court, with jurisdiction over
the accounts of such persons who as guardians, trustees, tutors,
executors or administrators were entrusted with the property, real or
personal, of orphans or persons under age, to see that the surety for
such persons was sufficient, to revoke their letters, if necessary,
to see that funds were invested, appoint guardians or bind the minors
out as apprentices, and upon a settlement of an account to require a
proper discharge for the accountant, “and if any person or persons,
being duly summoned to appear in any of the said orphans’ courts,
ten days before the time appointed for their appearance, shall make
default, the justices may send their attachments for contempts,
and may force obedience to their warrants, sentences and orders
concerning any matter or thing cognizable in the same courts, by
imprisonment of body, or sequestration of lands or goods, as fully
as any court of equity may or can do. Provided always, That if any
person or persons shall be aggrieved with any definitive sentence
or judgment of the said orphans’ court, it shall be lawful for
them to appeal from the same to the supreme court; which appeal,
upon security given, as is usual in such cases, shall be granted
accordingly.”

This act, with some amendments, remained in force until supplied in
1832 by the act drafted by commissioners to revise the civil code.
We have already seen that an act of September 29, 1759,[540] which
failed of approval by the Crown, appointed the judges of the common
pleas to hold the orphans’ court. This, however, was a matter of
form rather than substance, for the judges of the common pleas were
selected from the general commission of the peace and none, at this
period, was learned in the law. The dockets of the orphans’ court of
Philadelphia County, which are complete from 1719, show a long list
of worthy citizens presiding in this tribunal. The court did not
have any special president but certain justices of the peace to whom
the service was congenial usually attended its sessions. John Hill
Martin notes[541] that whenever the mayor of the city was present he
always presided, and on all other occasions the order of seniority of
justices was rigidly observed, erasures being made in the minutes to
correct errors in this respect.

The oldest docket in the Philadelphia office opens the ninth of
April, 1719, with the following justices present: Jonathan Dickinson,
Robert Assheton and Clement Plumstead. The first case is a petition
for the appointment of a guardian and these cases are the most
numerous in the early records.

There are also many petitions for the sale of land for the payment
of debts or to support minors, to partition real estate, to compel
the filing of accounts and for the appointment of auditors. At the
court held February 12, 1738, there is a petition by the widow and
executrix of Abel Cain for leave to sell “a negro woman Mumbo and
her increase” for the support of the testator’s children. The return
shows that forty pounds was realized at the sale, of which, fifteen
pounds was directed to be paid to the widow, to reimburse her for
expenditures made, fifteen pounds to be expended in purchasing
clothing for the son and putting him out as an apprentice, and the
balance was directed to remain in court until further order.[542]

The proceedings are usually by petition and answer and the judgment
of the court is entered in the form of an order. In 1738 a subpœna
was issued to an executor to appear and exhibit his account, and on
his failure to do so an attachment was awarded.[543] But ten years
later the citation is in use. Thus, on June 20, 1748, on petition
by the guardian of a minor and heir at law of a decedent averring
that the widow and administratrix had married again and was wasting
the estate, a citation was directed to the administratrix and her
husband, requiring them to appear and render an account, returnable
the tenth day of July next.[544]

The most important audit of these early days was that of the accounts
of the trustees for the sale of the lands of the Society of Free
Traders, which by an Act of Assembly of March 2, 1722-3,[545] was
referred to this court, which was also directed to hear and pass upon
all claims for a share in the funds. This society, an association
in the nature of a joint stock company, which had purchased twenty
thousand acres of land from Penn in 1681, had not proved a success,
its affairs had been neglected and at the instance of the certificate
holders and their heirs the act was passed under which its business
was wound up. The court first met for this audit on March 10, 1724,
and the meetings continued at intervals for a number of years.

It is now, of course, well settled that the orphans’ court while a
court of equity with respect to subjects within its jurisdiction,
has no general chancery powers, but only such as are derived
from statute or are necessary to make its statutory powers
effective.[546] In 1745 there is recorded a curious effort to extend
its jurisdiction. William Good, by his guardian, Ralph Assheton,
filed a petition averring that petitioner was the owner of ten acres
of land in the township of Passyunk which had “by the extraordinary
rise of the price of lands thereabouts become of considerable value;”
that one Joseph Scull, brickmaker, taking advantage of the fact that
petitioner was a minor, had entered on said land, dug pits and was
about to set up a brick yard to the damage of petitioner, pretending
that he had a lease from petitioner’s father, although that lease had
expired and contained no clause permitting him to commit waste, and
praying that the said Scull might be cited to appear and answer the
complaint and, if the facts prove true, then that Scull be restrained
from committing waste or that petitioner have such other relief “as
is agreeable to equity and good conscience.” Whereupon it was ordered
that the said Joseph Scull be served with a copy of the petition and
cited to appear and answer the same.[547] The answer filed July 29,
1745, averred that any demand William Good might have had against
the respondent for waste, damages or otherwise was not cognizable
in this court, but in the courts of common law duly constituted and
settled in said province, and further that the tract referred to
did not belong to petitioner but to his mother, who had leased it
to respondent, and that the present right and title to the same was
not to be impeached, tried and determined in this court but in the
ordinary course of law. There is no entry of a decree, and perhaps
the answer was regarded by the parties as conclusive, inasmuch as a
question of title was raised. After the closing of the governor’s
court of chancery there was no court with jurisdiction to enjoin
the commission of waste, and the attempt to persuade the orphans to
exercise that power indicates the need of such a remedy, at least to
the mind of the guardian, who was himself a justice, and to that of
the presiding judge, William Allen, afterwards chief justice of the
province.[548]

The constitution of 1776 provided that the orphans’ court should be
held quarterly in each city and county, while the Act of January 28,
1777,[549] passed for the purpose of putting into effect so much of
the provincial law as was necessary in the commonwealth, conferred
upon these courts the powers and jurisdiction which they had
theretofore exercised. By the Act of March 14, 1777,[550] registers
of wills were directed to be appointed for each county by the
general assembly and the office of register general was abolished.
The constitution of 1790 vested the appointment of registers in
the governor, but the office was made elective by the amended
constitution of 1838.[551]

By the constitution of 1790[552] it was provided that the judges of
the court of common pleas of each county, any two of whom should be
a quorum, should compose the orphans’ court thereof, and the register
of wills together with the said judges or any two of them should
compose the register’s court. By the Act of April 13, 1791,[553] the
courts were established in conformity with the constitution.

The orphans’ court, although called a court of record in the Act of
1713, was not, at first, accorded that dignity. In 1786 it was held
that the settlement of an executor’s account was not conclusive[554]
and this decision was followed in 1818.[555] In other cases there
was shown a tendency to discredit proceedings before these tribunals
which, perhaps on this very account, had become loose and irregular.
Judge Duncan in _McPherson_ v. _Cunliff_[556] gives a melancholy
picture of the careless practice; the orders written on loose
scraps of paper and deposited in untitled pigeon holes, or packed
up as useless lumber in old trunks. Nevertheless, his opinion in
that case, vindicating the authority of decrees of orphans’ courts,
checked their decline, while his criticism, added to complaints
from the bench and bar, moved the legislature in the resolution for
the revision of the civil code passed March 23, 1830, to require
the commissioners “to revise the several statutes relative to the
settlement of accounts before registers and proceedings in the
orphans’ courts, as soon as conveniently may be, and report the
same for the determination of the general assembly at their next
session.” Accordingly the commissioners made their first report to
the legislature on January 31, 1831, and presented two bills, one
relating to registers and registers’ courts and the other relating to
orphans’ courts. Upon the latter bill the commissioners observed:--

“The bill relating to the Orphans’ Court has occupied a large
share of our time and reflections. The peculiar structure of that
court, its extensive but ill-defined sphere of jurisdiction, the
magnitude of the interest upon which it operates, the uncertainty
of the code of law by which it is regulated, and its equally
uncertain and insufficient practice and process, serve to surround
with difficulties every attempt to frame a regular system for
it. So convinced are we of the arduousness of the task of
compiling a complete system, which shall embrace the constitution,
jurisdiction, powers, and practice, of this court, that had it not
been for the express directions of the legislature to report upon
it at the present session, we should probably have reserved this
subject to the last, and given it the utmost deliberation that our
limits allowed. Of the necessity however of an early as well as
thorough examination and revision of the acts of assembly relating
to this tribunal, we are fully convinced.”[557]

The bills recommended by the commissioners were enacted into laws at
the session of 1832, that relating to registers and registers’ courts
being approved March 15, 1832,[558] and that relating to orphans’
courts on March 29, 1832.[559]

Under these acts the register was given jurisdiction within the
county for which he was appointed, “of the probate of wills and
testaments, of the granting of letters testamentary, and of
administration, of the passing and filing of the accounts of
executors; administrators and guardians, and of any other matter
whereof jurisdiction may be at any time expressly annexed to his
office.”

When a caveat was filed, objection made to the granting of letters of
administration, or when any disputable or difficult matter came into
controversy, the register, at the request of any person interested,
was required to call a register’s court for the decision thereof. So
also, an appeal might be taken to the register’s court from all the
judicial acts and decisions of the register. The register’s court
comprised the register of wills and the judges of the court of common
pleas of the county or any two of said judges.

After the register had allowed and filed any account in his office,
he was required to prepare and present a certified copy thereof to
the orphans’ court at its next stated meeting and give notice by
public advertisement that said accounts would be presented to the
orphans’ court for confirmation.

The judges of the court of common pleas of each county or any two
of them composed the orphans’ court, which was declared a court of
record, the decrees of which were not to be reversed or avoided
collaterally in any other court. The jurisdiction of the court was
summarized in the act as follows:--

“The jurisdiction of the several Orphans’ Courts of this
Commonwealth shall extend to and embrace the appointment, control,
removal and discharge of guardians, the settlement of their
accounts, the removal and discharge of executors and administrators
deriving their authority from the register of the respective
county, the settlement of the accounts of such executors and
administrators and the distribution of the assets or surplusage of
the estates of decedents, after such settlements among creditors
or others interested in the sale or partition of the real estate
of decedents among the heirs, and generally to all cases within
their respective counties, wherein executors, administrators,
guardians or trustees are or may be possessed of or undertake the
care and management of, or are in any way accountable for any real
or personal estate of a decedent, and such jurisdiction shall be
exercised in the manner hereinafter provided.”[560]

No account of an executor, administrator or guardian was to be
confirmed and allowed by the court unless advertised by the register
of wills as provided in the prior act and all accounts, except
partial accounts by guardians, were to be examined by the court or
referred to auditors, unless otherwise agreed by all parties in
interest. These provisions were adopted to compel a more thorough
audit of accounts. Under the prior practice the settlement of
accounts in the register’s office was generally a perfunctory matter
and no more than a mere vouching of the items of the account, while
the confirmation in the orphans’ court was largely a matter of form.
A reform in these matters was absolutely necessary if the decrees of
the orphans’ court were to be made conclusive. Finally the practice
and process of the orphans’ court were defined and strengthened.
Writing in 1847, Mr. Hood observed:--

“The orphans’ court, as at present constituted, is a court of a
peculiar nature both as respects its jurisdiction, powers, and
the forms of its proceedings, partaking of the characters of a
court of common law, a court of equity, and an ecclesiastical
court. The process of the orphans’ court would seem, in some
respects, to resemble that of the English ecclesiastical courts,
whose proceedings are regulated according to the practice of
the civil and canon law; or rather according to a mixture of
both collected and new-modelled by their own particular usages
and the interpretation of the courts of common law. It was this
establishment of the civil law process in the ecclesiastical courts
that made a coalition impracticable between them and the national
tribunals of England. The act of 1832 has remodelled the forms of
proceeding in the orphans’ court, making them approximate more
nearly to the common law. Hence, in the orphans’ court practice,
are found the _motion_, _rule_, _fieri facias_, and _subpœna_
of the common law courts, the _petition_ of chancery, and the
_citation_ of doctors commons; and mingled with them, the _order_,
_decree_, and _sequestration_ derived through these equity and
ecclesiastical tribunals, from the civil and canon laws. In one
respect the orphans’ court may be said to be of a higher nature
than the court of chancery and the ecclesiastical courts of
England: for the court of chancery, when proceeding by subpœna, is
not a court of record, nor are the ecclesiastical tribunals, courts
of record.”[561]

Under the Act of 1832, and some additional acts relating to
decedents’ estates subsequently passed on the recommendation of the
commissioners, the orphans’ courts reached their full dignity as
courts of record and have justified their creation by a long career
of usefulness. The confidence of the community has been further
marked by the extension of their jurisdiction in numerous cases as,
for example, under the Price Act.[562] To fully describe the powers
of the court would exceed the limits of this chapter and indeed
open up the whole subject of orphans’ court practice, a matter
that has been thoroughly discussed in several text books.[563] It
is necessary, however, to refer to certain changes brought about
by the constitution of 1874 which abolished the register’s court
and conferred its jurisdiction on the orphans’ court, provided for
the establishment of separate orphans’ courts in counties having a
population exceeding one hundred and fifty thousand, and directed
that all accounts filed with the register of wills, as clerk of a
separate orphans’ court, should be audited by the court without
expense to the parties, unless the parties themselves nominated an
auditor.[564]

These changes have proved most beneficial. The registers’ court was
unnecessary and was wisely abolished, while the creation of separate
orphans’ courts in the larger communities has been particularly
advantageous in furnishing to the judiciary of the state a corps
of experts, specially trained in the handling of those difficult
and intricate problems arising out of the devolution of property by
death. The name of the court today indicates but a small part of its
functions, but is an historic illustration of the way in which great
institutions sometimes grow from small beginnings.

FOOTNOTES:

[490] _McPherson_ v. _Cunliff_, 11 Sergeant & Rawle’s Reports, 431
(1824).

[491] Williams on Executors, Part I, Book 4, chapter 1.

[492] Blackstone’s Commentaries, Vol. II, 590, Vol. III, 64.

[493] Article on Wills by L. M. Dagget in Two Centuries’ Growth of
American Law, 167.

[494] Laws of the Colony of New Plymouth (Edition of 1836), 32.

[495] Maryland Archives, Judicial and Testamentary Business of the
Provincial Court, 12.

[496] Laws of the Colony of Massachusetts (1672), 157.

[497] Charter and Laws of Pennsylvania, 5, 6.

[498] Records of the Court of New Castle, 74.

[499] Records of the Court of New Castle, 66.

[500] Records of the Court of New Castle, 98.

[501] Charter and Laws of Pennsylvania, 101.

[502] Charter and Laws of Pennsylvania, 119.

[503] Proud’s History of Pennsylvania, Vol. I, 236.

[504] Sussex County Records, MSS. Historical Society of Pennsylvania.
For similar entries, see Turner’s Sussex County Records, 133.

[505] II Statutes at Large, 194; II Colonial Records, 238, January
12, 1705.

[506] II Statutes at Large, 421.

[507] II Colonial Records, 576, May 27, 1712.

[508] II Statutes at Large, 541.

[509] II Statutes at Large, 423, § 3.

[510] Act of January 12, 1705, II Statutes at Large, 199.

[511] Act of March 27, 1713, III Statutes at Large, 14.

[512] _Commonwealth_ v. _Brady_, 3 Sergeant & Rawle’s, 309 (1817).

[513] Charter and Laws of Pennsylvania, 302.

[514] I Colonial Records, 407, June 5, 1694.

[515] I Blackstone’s Commentaries, 463.

[516] _Wimmer’s Appeal_, 1 Wharton’s Reports, 102 (1836). The court
of the burgomaster and schepens of the city of New York acted as an
orphans’ court during the Dutch period. To relieve the court of this
work Stuyvesant created a separate court of orphan masters, which
ceased to exist when the colony passed into the hands of the English.
Scott’s History of the Courts of New York (1909), 40; Records of the
Court of New Amsterdam, Vol. II, 341. There is no evidence, however,
that this court influenced Penn in establishing orphans’ courts in
Pennsylvania.

[517] Bohun’s Privileges of London (Edition of 1723), 314.

[518] Act of 12 Charles II, chapter 24 (1660).

[519] Bohun, 336.

[520] Act of 5 and 6 William & Mary, chapter 10.

[521] Charter and Laws of Pennsylvania, 131.

[522] Charter and Laws of Pennsylvania, 142.

[523] Address of Peter McCall, Esq., before the Law Academy (1838).

[524] I Colonial Records, 39, 20, 12 mo. 1683; I Colonial Records,
62, 18 4 mo. 1684.

[525] I Colonial Records, 137, 5, 5 mo. 1686; 138, 6, 5 mo. 1686;
143, 21 September, 1686.

[526] Charter and Laws of Pennsylvania, 100. See page 28, _supra_.

[527] Charter and Laws of Pennsylvania, 120, 181.

[528] Charter and Laws of Pennsylvania, 180; I Colonial Records, 176,
12, 2 mo. 1688.

[529] II Statutes at Large, 51.

[530] II Statutes at Large, 494.

[531] II Statutes at Large, 199, §§ 3, 4.

[532] I Colonial Records, 103, 16, 7 mo. 1685.

[533] I Colonial Records, 552, July 1, 1700.

[534] Charter and Laws of Pennsylvania, 231; I Colonial Records, 390,
May 31, 1693.

[535] Charter and Laws of Pennsylvania, 261.

[536] II Statutes at Large, 31, § 3.

[537] II Statutes at Large, 148, § 8.

[538] II Statutes at Large, 199.

[539] III Statutes at Large, 14.

[540] V Statutes at Large, 462.

[541] Martin’s Bench and Bar of Philadelphia, 66.

[542] Orphans’ Court Docket No. 2, page 78.

[543] Orphans’ Court Docket No. 2, pages 59, 93.

[544] Orphans’ Court Docket No. 3, page 53.

[545] III Statutes at Large, 345.

[546] _Brinker_ v. _Brinker_, 7 Pennsylvania Reports, 53 (1847);
_Steffy’s Appeal_, 76 Pennsylvania Reports, 94 (1874); _Kidder’s
Estate_, 1 Kulp’s Reports, 412 (1875).

[547] Orphans’ Court Docket No. 2, page 176.

[548] By the Act of May 19, 1874, P. L. 206, § 7, the orphans’ court
has power to prevent by order, in the nature of an injunction, acts
contrary to law or equity prejudicial to the property over which they
have jurisdiction. See Pepper and Lewis’s Digest of Decisions, Vol.
15, col. 24472.

[549] IX Statutes at Large, 29; 1 Smith’s Laws of Pennsylvania, 429.

[550] IX Statutes at Large, 68; 1 Smith’s Laws of Pennsylvania, 443.

[551] Article V, § 11, Constitution of 1790; Article VI, § 3,
Constitution of 1838.

[552] Article V, § 7, Constitution of 1790; 3 Smith’s Laws of
Pennsylvania, page xxxix.

[553] 3 Smith’s Laws of Pennsylvania, 28.

[554] _Marriot_ v. _Davey_, 1 Dallas’s Report, 164 (1786).

[555] _Kohr_ v. _Fedderhaff_, 4 Sergeant & Rawle’s Reports, 248
(1818).

[556] 11 Sergeant & Rawle’s Reports, 422 (1824). So far as
Philadelphia County is concerned the orphans’ court records are in a
better state of preservation than those of the other courts.

[557] First Report of the Commissioners to Revise the Civil Code
(1831).

[558] P. L. 135.

[559] P. L. 190.

[560] Section 4 of the Act of March 29, 1832, P. L. 190.

[561] Hood on Executors, 103.

[562] Act of April 18, 1853, P. L. 503.

[563] Scott on the Intestate System of Pennsylvania, Rhone’s Orphans’
Court Practice, Brewster’s Orphans’ Court Practice. Pepper and
Lewis’s Digest of Decisions, Vol. 14, col. 24234.

[564] Article V. § 22, Constitution of 1874; see appendix.