Chapter V
Reading edition
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 yor Honor will bee pleased soe far to Impower the Commander Captn John Colier or the Court that wills may bee proved before them and Letters of Administracon granted accordingly wth 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 yor 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 Corts 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 Genll 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 Governr 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. Genll (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 Governr 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, Esqr., Leivt Governor.
Andr Robeson, }
pat. Robinson, } Esqrs. Wm. Clarke, } Esqrs.
Wm. Salway, } Geo. forman, }
“His Excellie Having ordered the Hearing of what might be offered agt 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 Leivt Governor, 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 ye Councill to Confirme ye Sale of Lotts and Lands sold by ye said Widdow, by ye Govrs Verball order, to pay her Deceased husband’s Debts, and for subsistence of herselfe and Children.
“James Harrison being prosent & attesting ye truth of ye Order, and she declaring yt ye Land sould was ye Citty Lotts, and ye Liberty Land, and but two hundred Acres out of one thousand, and not ye Land yt was Improved; ye 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, pror and Governor
Edwd Shippin, Wm. Clark, Thomas Storie.
Rt. Turner, John Moll,
“Upon reading the petion of Sarah Gibbs, widdow, setting forth yt Her Husband Latelie dyed, Leaving her much in debt, & the charge of a sucking child, & having nothing wherwt to pay ye sd debts but ye shell of a smal house, unfinisht, & a Lott valued att 50£, yrfor, requesting ye Gor & Council to allow, permitt, & authorize her to make sale yrof, towards ye defraying of sd debts, educaon of sd infant & her support, according to the Laws and Customs of sd province. Wheron Rt. turner signified yt ye sd allegaons wer true, ye circumstances qrof being to him well known.
“Itt was yrfor Ordered yt sd Sarah Gibbs be pmitted, allowed & authorized, & is hereby by ye Gor & Council pmitted, allowed & authorized, to make sale & conveyance to anie pson qtsoever, of ye sd house & Lott, wt its improvments and apptenances, & to ym & yr Heirs & assigns for ever, towards ye defraying her just debts, ye educaon & maintainance of sd infant & her owne support, according to ye Laws & Customs of sd province, to Hold to ye sd pchasers yrof & yr heirs & assigns, & to yr 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.