NJ-L Archives

Archiver > NJ > 2002-11 > 1036169614


From: "David Tourison" <>
Subject: [NJ] Early Will Making in New Jersey - XXVII
Date: Fri, 01 Nov 2002 09:53:34 -0700


THE APPOINTMENT OF SURROGATES [beginning page lxxxii]

A remarkable encroachment of the prerogatives of the Ordinary in the
matter of appointment of surrogates was made by the Legislature in 1822,
when that body assumed the power which previously had been always exercised
by that functionary. An act passed November 28, 1882, provided:

[page lxxxiii] The surrogates of the several counties shall be appointed by
the joint meeting, and hold office for five years, unless sooner removed
according to law. Vacancies shall be filled by the Governor until the next
session of the legislature, when his successor shall be appointed by the
joint meeting for five years. A measure of this kind, passed at the
present day, would be interpreted by the average citizen as simply a grab
for the spoils of office. There was no reason to believe that the
Legislators of 1822 were above the human weaknesses of their successors. It
is possible that the act was intended as a step in the direction of popular
government, in vesting the appointment in the representatives elected by the
people, instead of in the Ordinary, who was himself appointed by the
Legislature in joint meeting. A more pronounced step in that direction was
taken in the constitution of 1844, which provides that the surrogates of the
several counties shall be elected by the legal voters of the counties
respectively and shall hold office for five years. They are subject to
removal only by impeachment.
An act passed December 12, 1825, authorized the Surrogate- General,
upon the written application of a majority of the judges of the Orphans
Court of the county, supported by affidavits, to remove any surrogate
incapacitated by mental derangement, insanity or great debility of mind,
from propertly performing the duties of his office, and to appoint some fit
person to perform such duties during such incapacity, or until the next
meeting of the Legislature.

Of the two houses of the Legislature
Pamph. Laws, 1822, p. 96
Pamph. Laws, 1825, p. 122

FOREIGN WILLS [beginning page lxxxiii]

Foreign wills those made beyond and disposing of property within, the
Colony had been recognized as least as early as 1686, as in the case of
Edward Baker, already cited.4 It is true that in a sense this was not a
foreign will, being within the jurisdiction of the Archbishop of Canterbury.
But on September 9, 1776, in the new State of New Jersey, a certified copy
of the will (dated October -----, 1772) of Peter Sonmans,

4 Page xli, ante. And see also page xiii.

[page lxxxiv] as recorded in Philadelphia, was produced, and letters of
administration with the will annexed were granted thereon, under the
Prerogative seal. By an act passed December 9, 1825, foreign wills were
authorized to be filed or recorded in the prerogative office of this State,
or in the office of the surrogate of any county, such wills to be of the
same force and effect as if the probate thereon had been granted by the
Ordinary or Surrogate of the county. The scope of this act was two-fold:
it preserved the record in New Jersey of the disposition of property within
the State by the wills of non-residents; and it also placed the office of
Surrogates in this matter upon a parity with that of the Ordinary.

Lib. No. 16 of Wills, p. 505
Pamph. Laws, 1825, p. 108

MISCELLANEOUS ACTS [beginning page lxxxiv]

Another act passed December 9, 1825, provided that citation or process
of attachment issued out of the orphans court might be served or executed
by the sheriff of the county upon any person or persons residing without the
county, but within the state.
By and act of February 19, 1830, the Ordinary was authorized, where he
had been interested in a case, to call to his assistance one of the justices
of the Supreme Court to sit and advise with him on the hearing or argument
of such case.4
Any oath, affidavit or affirmation required to be made or taken to use
before any surrogate or any orphans court, was authorized to be made and
taken before the surrogate, by an act passed February 21, 1840.5
A seemingly unnecessary bit of legislation was an act passed February
25, 1842, authorizing the orphans court and the county courts to adjourn
from any day in the term to any subsequent day in the next term, but for not
more than one week.6 Probably the point had been raised that the court
could not adjourn to a day beyond the term.
An important change in the practice was made by an act passed February
22, 1843, which provided that where a decree of the orphans court on the
final settlement or allowance

Pamph. Laws, 1825, p. 100
4 Pamph. Laws, 1830, p. 54
5 Pamph. Laws, 1840, p. 55
6 Pamph. Laws, 1842, p. 76

[page lxxxv] of the accounts of executors, etc., or any final decree of
such orphans court should be reversed and vacated or set aside by the
Supreme Court on certiorari, the latter court (instead of sending the matter
back for the action of the lower tribunal) might direct their clerk to audit
and re-state the accounts, and might grant a decree thereon in the same
manner as the orphans court might have done. The act also provided that if
any minor or minors should become seized or possessed of, or entitled to any
real or personal estate in the lifetime of the father of such minor or
minors, the Ordinary or Surrogate-General, or the orphans court, might
appoint the father or other suitable person or persons, guardian or
guardians of the estate of such minor or minors.

Pamph. Laws, 1843, p. 84.

_________________________________________________________________
Surf the Web without missing calls! Get MSN Broadband.
http://resourcecenter.msn.com/access/plans/freeactivation.asp

This thread: