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Archiver > NJ > 2002-11 > 1036169374


From: "David Tourison" <>
Subject: [NJ] Early Will Making in New Jersey - XXIII
Date: Fri, 01 Nov 2002 09:49:34 -0700


GOVERNOR FRANKLINS FINAL ACTS AS ORDINARY [beginning page lxvii]

Amid all the excitement and turmoil of the impending war, Governor
Franklin went on with his accustomed duties, and among the probates of wills
granted under his signature we find these, down to the last days of his
administration:
Amos Benton, of Salem, will dated May 10, 1776; proved June 17, 1776,
before John Carey, surrogate; probate granted same day. 1
John Firth, will date 30th 4th mo., 1773; proved June 20, 1776, before
John Carey, surrogate; probate granted same day. 2
Josiah Miller, of the township of South Hanover, Morris county, will
dated Sept. 26, 1775; proved March 15, 1776, before Abraham Ogden,
surrogate; probate granted same day. 3
Andrew Miller, of Roxbury, Morris county, will dated May 6, 1775;
proved March 25, 1776, before Richard Kemble, surrogate; probate granted
same day. 4
Letters of administration were granted, June 20, 1776, to William
Nixon, administrator of the estate of Samuel Hartley, late of Salem,
deceased. 5
It is quite evident that these certificates of probate and letters of
administration were signed in blank by the Governor and distributed to the
surrogates. This would account for the palpable anachronism in the two
following entries in the records:
Letters of administration were granted by Governor Franklin unto Samuel
Jacques, 3d, administrator of the estate of Henry Martin, late of Middlesex
county, deceased, June 27, 1776.6

1 Liber No. 17 of Wills, in Secretary of States office, 399
2 Ibid., 396
3 Liber M of Wills, 1.
4 Ibid., 434-5 This is the final entry in this volume.
5 Liber No. 16 of Wills, 500
6 Liber M of Wills, 31. Governor Franklin was placed under arrest on
June 17, by order of the Provincial Congress, and on June 25 was ordered to
be sent to Connecticut. He was not in a position to transact any official
business after his arrest.

[page lxviii]
Letters of administration with will annexed were granted on the estate
of Peter Sonmans, late of Philadelphia, deceased, by Governor Franklin,
September 9, 1776.1

1 Liber M of Wills, ut supra, 505.

UNDER THE STATE GOVERNMENT [beginning page lxviii]

The Constitution of New Jersey, adopted July 2, 1776, provided (Sec.
VIII): That the Governor be Ordinary or Surrogate General. And (Sec. IX):
That the Governor and Council (seven whereof shall be a quorum) be the
Court of Appeals in the last Resort in all Causes of Law as heretofore.
This was never construed to give appeals from the Ordinary, and the
Legislature never provided for taking such appeals. Until then , either in
England of this country, no appeal had ever been given, or been had from the
Prerogative or Testatmentary Courts, to the Courts of Appeals in cases of
law or equity. 2
The Convention whihc adopted the Constitution of 1776 adopted this
resolution on July 4 of that year:
RESOLVED, That, in order to prevent a failure of justice, all judges,
justices of the peace, sheriffs, coroners, and other inferior officers of
the late government within this Colony, proceed in the execution of their
several offices, under the authority of the people, until the intended
Legislature and the several officers of the new government be settled and
perfected, having respect to the present Constitution of New Jersey, as by
the Congress of late ordained, and the orders of the Continental and
Provincial Congress; and that all actions, suits and processes be continued,
altering only the style and form thereof, according to the terms by the said
Constitution prescribed, in the further prosecution thereof. 3

2 Chancellor Zabriskie, in Harris v Vanderveers Exr., N. J. Court of
Errors and Appeals, November term, 1869, 21 N. J. Eq. (6 C. E. Gr.), 453.
(In this case the Chancellor, sitting as a constitutional member of the
appellate court, voted to dimiss an appeal taken from his decree as
Ordinary, and filed a dissenting opinion). See also Anthony vs. Anthony, N.
J. Court of Errors and Appeals, April term, 1846, 5 N. J. Eq. (1 Haist.
Ch.), 627; Hillyer v Schench, N. J. Court of Errors and Appeals, March term,
1863, 15 N. J. Eq. (2 McCarter), 501.
3 Minutes of the Provincial Congress and the Council of Safety of New
Jersey (reprinted), Trenton, 1879, p. 491.

[page lxix]
The Legislature enacted, October 2, 1776: That the several Courts of
Law and Equity of this state shall be confirmed and established, and
continued to be held with the Powers under the present Government, and at
the same Times and Places, as they were held at and before the Declaration
of Independency lately made by the Honourable the Continental Congress. 1
This raised the question whether the Prerogative Court came under
either of the categories within the scope of Sec. IX of the Constitution of
1776, or the statute just recited. On this point it was finally decided, in
1869:
[The Prerogative] Court has always been possessed of certain branches
of jurisdiction which reside in the ecclesiastical tribunals in England.
Hence, it has ever been regarded as an ecclesiastical court, and therefore
does not properly come under the denomination of a Court of Law or Equity.
2
The Surrogate General was, by an act passed October 8, 1778, left at
liberty to employ or appoint a deputy or deputies. 3
William Livingston having been elected Governor on August 31, 1776, by
the Legislature in joint meeting, accepted, and entered upon the duties of
that office on September 7. The hold-over surrogates who still had on hand
the old probate blanks erased the name of Franklin and interlined that of
Livingston instead. The Register of the Prerogative office began new
volumes of records of wills, the first entry in Liber No. 18, page 1, being
the record of the will of John Sexton, of the township of Bedminster,
Somerset county, dated September 10, 1776, and proved October 14, 1776,
before James Kirkpatrick, surrogate; probate granted the same day, by
Governor William Livingston. 4

1 Wilsons Laws, 3; Patersons Laws, 38.
2 Harris vs. Vanderveers Executor, Court of Errors and Appeals, November
Term, 1869, 21 N. N. Eq. (6 C. E. Gr.), 494. See also Wood v. Tallmans
Exrs., N. J. Supreme Court, 1793, 1 N. J. L. (Coxe), 155, 158.
3 Paterson, 39.
4 Liber No. 16 contains records of probates of wills by Governor
Livingston as of January 23, 1775; June 6, 1776, and September 6, 1776 all
before his accession to office. These entries were all made after April 29,
1777, and after he became Ordinary. The careless use of left-over blanks
explains the error. Liber No. 17 contains no records between June 17, 1776
and 1785. Liber M, of East Jersey Wills, contains no records from June 27,
1776, until 1780.

[page lxx]
The disorganization of the governmental machinery consequent upon the
declaration of the independence of New Jersey was keenly felt in the matter
of the settlement of estates. Writing from Newark, June 21, 1777, to
Governor Livingston, that public-spirited citizen, Joseph Hedden, junior,
says: I am daily applied to by some of the inhabitants of this place to
nominate some fit person to act as deputy surrogate. There are a number of
wills to be proved, and letters of administration granted, and no person in
this county qualified to act in that office. If your Excellency would
please appoint Elisha Boudinot, Esq., to that office it would greatly oblige
a number of the inhabitants of this town. 1
Letters of administration were granted by Govenor Livingston, dated
November 21, 1777, in which he sets forth: Know ye that at Newark on the
day of the date hereof, the last will and testament of Daniel Tichenor, late
of Essex, deceased, was proved before Elisha Boudinot, surrogate, who was
thereunto duly authorized and appointed for that purposed, and now approved
and allowed by me. Letters were accordingly issued to Susan Tichenor, the
executrix named in the will, who was required to return a true and perfect
inventory unto the registry of the Prerogative Court in the Secretarys
office at Burlington. 2

1 Selections from the Correspondence of the Executive of New Jersey; from
1776 to 1786, Newark, 1848, p. 72.
2 Original Letters, in New Jersey Historical Society.


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