A view of the jurisdiction and proceedings of the courts of probate in Massachusetts : with particular reference to the County of Essex

Front matter

Bor, No.

RSSHKR INSTITELK,

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Contents

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I, HISTORICAL VIEW OF THE PROBATE JURISDICTION 9 1. Under the Colony “agate ge Courts—two se shige with the recorder 10

Agreement of the United Cidteribba sebitdte nie of the Mad, Col. laws as to the settlement of estates’ . os 2. Under Gor. Andros and Dudley—Fornis fiitadaced - 15 3. Under the Province Charter—Governor and Council - 16 Judges of Probate constituted as their surrogates, &c. - 17 No forms and processes ee Sag by the legislature—nor the a

Introduction

For some years previous to the resignation of my predecessor in office, the late venerable J udge Holten, it was generally expected that his successor, whoever he might be, would find it to be his duty to introduce important changes in the mode of conducting the probate business of this county. This, was particularly impressed upon my mind, at the time of my nomination to the office, not only by undoubted indications of the public sentiment, and a uniform expression of mdiyidual opinions, but by letters received from several distinguished gentlemen of the county, who were then members of the state government, and who, in notic-> ing my appointment, took occasion to represent to me the peculiar situation of the probate office in the county of Essex, “ the evils which had been experienced, and the expectation that much would be .done to remedy them.”

Being thus led to consider the acceptance of the _office as involving the duty of attempting some reform, it was my first object, by a careful examination of the laws and judicial decisions relative to the probate department, and of the practice and usages then prevailing in this county, to ascertain, in the best manner I could, the proper practice and course of proceedings to be adopted. In this inquiry I derived much aid from consultation with professional gentlemen who felt an interest in the subject, and who kindly favoured me with their advice and assistance ; and also from the practice and experience of the Courts of Probate in other counties, where the’ proceedings had been regulated according to the advanced state of the law. en

The result of this investigation was a full conviction, that it was my duty to introduce more extensive alterations than I had before supposed would be necessary ; though many difficulties appeared to oppose the undertaking, arising from the want of prescribed forms and processes for the Probate Court, and from the prevalence of old habits connected with the of fice in this county. These difficulties, while they increased the responsibility, seemed in no degree to lessen the obligation, of pursuing the convictions of duty. But in doing this, I endeavored to render the new system of practice as simple as possible, consistently with the main design of securing a legal and correct course of proceedings, as well on the part of the Court, as of those who act under its authority. ; |

The propriety of presenting to the public a particular statement of the rules and principles of this system of practice, as a more satisfactory guide to parties in their applications to the Probate Court, has often occurred to me; and this is now rendered the more expedient and necessary by the imperfect and erroneous statement, which has been produced by the Honorable House of Representatives. It is no less due _ to myself, than to the good people of this county, to exhibit to them a full view of the practice and course - of proceedings adopted in the Probate Court, with an

~ exposition of the laws upon which they are founded. This is the object of the following pages.

Tn considering the laws upon this subject, it has appeared to me that a concise historical review of them, and of the probate jurisdiction in Massachusetts, with some account of the former practice of the Probate Court in the county of Essex, might be useful, and in » some degree interesting.

It is my design, therefore, in the first place, to take a very general view of the progress of the Probate Law and Jurisdiction, under the Colonial, Proyincial, and State governments.

Secondly, to give a general account of the former practice of the Probate Court, in this county, the changes which have been recently introduced, and the reasons for introducing them.

Thirdly, to exhibit in detail the present practice and course of proceedings, in all the usual and important applications to the Probate Court, with particular notices of the former practice, and a brief abstract of the rules of law, most pertinent to each case, as contained in the Statutes and Judicial Reports of this Commonwealth : concluding with some observations upon the proceedings of the Honorable House of Representatives connected with this subject.

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I. Historical View Qf The Probate Jurisdic- Tion

Te Probate Law and Jurisdiction, as they are now found to prevail in this Commonwealth, have grown up gradually from the simplest beginnings. ‘The Colony Charter contained no particular provisions, as, to establishing courts for the administration of justice, or for the probate of wills and settlement of intestate estates; and our forefathers, in providing for these objects, had to consult only their peculiar situation and circumstances. ‘Though familiar with the distinction between the civil and the ecclesiastical jurisdiction in England, they were never inclined to ‘mtroduce it here ; nor would the constitution of their churches have admitted it. The leaders among them were wise and practical men, and well understood how to adapt their laws and institutions to the condition of a new and growing settlement, and to vary and extend them, as their experience dictated, without transplanting more from the parent country, than was applicable and useful. As, in the infancy of the colony, they saw no necessity for a distinct court to take the probate of wills and grant administrations, they gave jurisdiction of these subjects to y how!

the County Courts of common law; and it remained with these courts, during the existence of the first charter, with appeal, as in other cases, to the Court of Assistants.

The clerk of each County Court was the reeorder for the county, as well of all testaments and deeds. of conveyance, as of judicial proceedings; and in 1639, it was ordered, that records should be kept of all wills, administrations, and inventories. In 1652, experience having shewn the great inconvenience, in many cases, of waiting from one County Court to another for the probate of a will or taking administration, it was ordered, that any two magistrates, with the recorder, or clerk, of the County Court, meeting together, should be authorized to allow of any will, on the oath of two or more witnesses, and also to grant administration on the estate of any person dying intestate, to the next of kin, or to such as should be able to secure the same for the next of kin; the clerk to inform the rest of the magistrates, at the next County Court, of such will proved, or administration granted, and to record the same. The provision here made for granting administration to such as might secure the estate for the next of kin, was doubtless intended for the case of deceased strangers" and others, leaving no heirs in the country; such cases being among the principal reasons assigned for this ordinance. ‘The preservation of estates so situated for the rightful heirs was in those days an object of much importance.

In 1648 it was agreed and established by the four United Colonies of New-England, that when the last

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will and testament of any man was duly proved and certified from any one of the colonies, it should be allowed in the rest, unless some just exception were made to it, or to the probate of it; in which case, such exception should forthwith be cert ified back to the colony where the will was proved, that some just course might be taken to gather in and dispose of the estate without delay or damage: Also, that when any known planter or settled inhabitant died intestate, administration should be granted by the colony to which the deceased belonged, although he died in another colony; and, being duly certified, should be of force for gathering in the estate in the rest of the colonies. But when any person, possessed of an estate, who was neither a planter nor settled inhabitant, in any of the colonies, died intestate, administration was to be granted by the colony where he died; or at least due care taken by the government to gather in and secure the estate, till it should be demanded and delivered according to the rules of justice.*

The Massachusetts colony laws were few and simple in relation to the settlement and distribution of estates; and, as some of the provisicns contained an them have continued in substance to the present day, a brief abstract of these laws is here given.

In 1647, dower was secured to widows in the real estate of their deceased husbands, and provision was made for the assignment of it, as at common law, by writ at the suit ofthe widow. And by an ordinance, fod which in the second digest of the colony laws bears the dates of 1641 and 1649,* it was provided that when the husband or parents die intestate, the County Court should be impowered to assign to the widow such a part of the estate as they should judge just and equal; and also to divide and assign to the. children, or other heirs, their several parts and portions: the eldest son to have a double portion, and, in case of no sons, the daughters to inherit as copartners; unless the Court, upon just cause alledged, should otherwise determine. So far as respected the widow, this has been considered “rather a provision for an allowance of sustenance, than for an assignment of dower.”} It seems most probable, however, that it was intended to authorize the assignment of dower, as well as distribution among heirs ; and that it was so understood in practice, although expressed in terms admitting much latitude of discretion mn the Courts, as to widows, and which they in fact sometimes exercised as to children and _ heirs. Hutchinson, in his history of Massachusetts, speaking of our ancestors inrelation to this branch of the colon al jurisprudence, says: “ In the begmning, they so far

* Editions or digests of these laws were made in 1648, 1658, and 1672. The provisions of various acts, passed in different years, relating to the same subject, being brought together in a condensed form, and the years merely noted at the end, it is not always possible to ascertain the time when any particular provision was first introduced. Probably the one here remarked upon was adopted in 1649; subsequent to that for the assignment of dower by writ at the suit of the widow.

t ix Mass. Rep. 9.

followed the civil law as to consider real estates as mere bona; and they did not confine themselves to any rules of distribution then in use in England, and which afterwards were more fully established by the statute of distributions. ‘They considered the family and estate in all their circumstances, and sometimes assigned a «greater portion to one branch than another; sometimes they settled all upon the widow; in other cases assigned the whole estate to the administrators, or to any relation who would undertake to support or provide for the family, and pay certain sums to the children, when they came to age or marriage. When they established a general rule, they conformed very near to the rules respecting personal estate in England; only they gave the eldest son a double portion; and, in the real estate, the widow generally was considered for her dower only; but still, according to the circumstances of the estate and family, the court would consider the widow, and al low her a greater or lesser part, and enjoin her to take care of the children unable to provide for themselves, in proportion to what she received.’*

In 1649, in consequence of a prevailing practice of entering upon the estates of deceased persons, and wasting or disposing of them to the prejudice of creditors, without a legal administration, it was ordered that, if any executor knowing himself to be nominated such in any will, should not make probate of it at the Court holden next after thirty days from the deeease of the testator, or have it recorded by the clerk; and if any person whatever should not, within the same time, take administration of all such goods, as he should enter upon, of any party deceased; or if any person or persons should alienate or embezzle any lands or goods, before proving the will, or taking administration, and bringing in a true inventory of all the known lands, goods, and debts of the deceased ; every such person should be lable to pay all the debts the deceased owed, whether he left estate sufficient or not, and to forfeit to the country five pounds for every month’s neglect to prove the will, or to take administration. And when any one nominated executor renounced the trust, or when the friends and kindred of an intestate neglected to seek administration, it was made the duty of the clerk of the writs of the town where the deceased lived, to give notice thereof to the Court, within one month, that they might take such order thereon as they should think proper.

Such is the substance of the acts and ordinances on these subjects, which were in operation, for any length of time, under the colonial government. There was no standing law for the distribution of insolvent estates of deceased persons till 1677, a few years before the charter expired. Previous to this, it was usual for the General Court, on special application, to appoint commissioners for the purpose. In 1685, when the charter was in fact vacated, additional powers were given to the County Courts for enforcing a prompt and just settlement of estates ; from which it appears of how early an origin is the great evil of procrastination in these concerns. ‘The Courts were authorized to summon any executor duly to return an inventory, or to give bond tor payment of debts and legacies, and in case of refusal or neglect, to impose a fine of ten pounds for every month’s default; and, on complaint, to call any executor to render an account of his administration: Also, on complaint of any legatee or creditor for detaining any legacy or debts due, to summon any executor before them, and, on his neglect to appear, to proceed to a hearing of the case, to make their judgment or decree therein, and to grant execution for fulfilling it; and, generally, to hear and determine all cases relating to wills and administrations, and to issue executions upon the judgments given.

There could hardly have been opportunity for the exercise of these important powers, as a revolution immediately took place in the government; and, with it, an entire change in the course of probate proceedings. Dudley, being president of the council appointed the year following for the government of New-England, assumed to himself the jurisdiction of wills and administrations; and Andros, who arrived soon afterwards, continued to exercise the same authority as supreme Ordinary, obliging the people to come from all parts of the colony to the seat of government for the transaction of their probate business. A Judge of the prerogative court was appointed for Plymouth colony, and probably also for the other colonies of New-England; but we learn from Hutchinson’s history, that wills were sent to Boston for final decree, and also administrations, if the estate exceeded fifty pounds. ‘The circumstance most deserving of notice, connected with this short and arbitrary reign, is, that the few forms which subsequently prevailed in the several counties, in proving wills and taking administrations, were then first introduced from the spiritual courts of England. Previous to this period, the proceedings 1 in such cases were very loose and uncertain.

The revolution, which next followed in the civil affairs of the colony, and which was completed by the Province Charter granted by William and Mary in 1691, was in no respect more important and beneficial to the country, than by its influence on our laws and institutions for the administration of justice. ‘The legislative and judicial powers were no longer blended together as before; and Courts of Judicature were es- _ tablished upon sounder principles, adapted to the advanced state of society and of jurisprudence. ‘The old Court of Assistants, the County Courts, and those of Commissioners for small causes, gave place to the Superior Court of Judicature, the Courts of Common Pleas, Courts of General Sessions, and those of individual Justices of the Peace; all settled and organized, as they contmued substantially to a recent period. The legislature, in creating these Courts, not only defined their duties and regulated their proceedings, but prescribed the forms of their writs and other processes, and gave them express authority for establishing necessary rules of practice. This was neglected to be done for the Courts of Probate ; not because forms and processes were less necessary in these Courts, but from peculiar circumstances attending their origin and jurisdiction. By the new charter the Goyi7 ernor and Council were authorized “to do, execute or perform all that was necessary for the probate of wills and granting of administrations for, touching or concerning any interests or estate, which any person or persons might have within the province.” ‘Thus the jurisdiction of these matters became wholly distinct from the common law courts, and ceased indeed to be dependent on the legislative power. Probate Offices were established in the several counties, and judges were constituted with probate jurisdiction to officiate as surrogates or deputies of the Governor and Council, who remained the supreme Ordinary or Court of Probate. An act, which the provincial legislature passed for erecting county Courts of Probate was negatived by the King; and no statute establishing such Courts, or providing for the appoimtment of

Judges or Registers of Probate, existed till since the present constitution was ratified. But after Judges of

Probate were appointed by the Governor and Council, laws were enacted recognising their jurisdiction, extending their powers and duties, and in some measure regulating their proceedings and decrees.

At first there was nolaw requiring stated Probate Courts; and it was probably a general practice for the Judge and Register to meet together, at any convenient time, to transact probate business, as had been usual with the two magistrates and county recorder. But, in 1719, it was enacted that Judges of Probate should have certain fixed days for making and publishing their orders and decrees; and that such days should be made known by public notifications in the several counties. And, at a subsequent period, it wa%

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Id provided, that sheriffs and constables should duly serve all legal warrants and summonses, directed to them by any Judge of Probate; and that contempt of authority, in any cause or hearing before him, should be punished in like manner as such contempt of authority might have been in any of his majesty’s courts within the province. As it sometimes happened, that a Judge of Probate was also a Judge of a common law court, or might be in practice at the bar, it was thought proper to guard against any interference of these several capacities; accordingly, in 1727, it was enacted that no Judge of Probate should have a voice in judging or determining, or be admitted to plead or act as attorney, in any civil action depending on, or having relation to, any sentence or decree made by him in his — said office. :

In some cases the legislature directed the course of proceedings in the Probate Court, and took sufficient care to protect the rights of parties, who were not ina legal capacity to act for themselves, or who were out of the province. But, except in a few instances, no statute provision was made for giving previous notice to parties adversely interested in the proceedings. In this, as well as n regard to forms and processes, the Judges of Probate were left by the legislature to their own discretion, guided by the general rules of law, and such mstructions as might be contained in their commissions, or otherwise received from the Governor and Council, who were the source of their authority and jurisdiction. Registers of Probate were required to give bonds for the faithful discharge of their trust, and for keeping up the records of their respective courts; but there was no provincial statute, which defined their duties, or determined the extent of them, as to the matters to be recorded.

In the general revision of the colonial laws, which took place after the province charter went into operation, the regulations respecting the duties of executors and admmistrators, which had been found useful, were re-enacted with alterations and additions; various important provisions were introduced from the English statutes on similar subjects; and the jurisdiction of the Judges of Probate was considerably enlarged by the legislature. ‘The manner of disposing of estates by will, the descent and distribution of intestate estates, and the right to administration of them, were clearly determined. The Judges of Probate were empowered to make division of the real estate a heirs; and, virtually at least, to assign dower Pen It was aaa convenient nas they should have this power in the settlement of intestate estates, as the real estate descended and was distributed by the same rules as the personal; and as_ they had cognizance of wills of lands, in like manner as of those concerning personal property, they were at length empowered also to make partition among devisees. But in these cases the Courts of common law always had concurrent jurisdiction.

Various other duties, more or less connected with the administration of estates, were at different periods assigned to the Judges of Probate; as appointing guardians for minors, also for idiots and distracted persons ; appointing commissioners on insolvent estates, and causing an equal distribution among crediiors of the deceased ; summoning before them such as were suspected of concealing or embezzling the effects of deceased persons, or of those under guardianship ; issuing warrants against delinquents for not paying their proportion of costs attending the partition of real estate ; and making allowance of necessaries, in certain cases, to the widow and family from the estate of her deceased husband.

An appeal lay, in all cases, from the orders, decrees, sentences or denials of a Judge of Probate, to the Governor and Council; to be claimed within six months ; the appellant to give security for prosecuting it within ten days, and to file reasons of appeal within ten days after security given, and fourteen days at least before the hearing by the Governor and Council.

Tue revolution, which abolished the Province Charter, led to the formation of the State Constitution, and fixed a new era in the history of our laws and ecrvil institutions. The Constitution, while it contmued im force the laws which had been adopted and used in the colony or province, and thus in effect confirmed the common law, abrogated of course whatever was repugnant to the rights and liberties it established ; and, by settling the principles on which rest the rights of every individual, as well as of the whole people, it necessarily required a change m all juridical proceedings, where usages had grown up inconsistent with these principles. Upon the adoption of this Constitution, a second general revision of the laws sueceeded, and was made under greater advantages than attended the first. The General Court of the Commonwealth had not, like that of the Province, any foreign mtere ference or control to apprehend, and could fully avail themselves of the wisdom and experience of former times, added to the more enlightened jurisprudence of their own. If the Probate system did not receive all the benefit that might have been expected from such revision, it may be attributed to circumstances peculiarly affecting this department. As the manner and forms of proceeding in the Probate Courts had never been subjects of statute regulation, the legislature did not now direct their particular attention to them; nor to the inquiry, how far the usages which prevailed in these courts were conformable to the requisitions of law. It has generally happened that those who possess a leading influence in revising and making our statutes, while intimately conversant with the common law tribunals, have had little practical knowledge of probate proceedings, and less inclination to undertake the labor of legislating about them in detail.

In the course of a few years, most of the statutes on subjects cognizable by the Probate Court were revised; a more lucid arrangement was given to them; provisions, relating to the same subject, contained in various province laws, passed at different periods, were brought together into one statute, with such additions and amendments as experience had suggested. From a laudable disposition to avoid unnecessary change in the laws re-enacted, the language in which they were originally framed was generally preserved ; and hence it is not surprising if some obscurities were transmitted, and some needless provisions retamed. But the improvements, introduced into the probate laws by this revision and the acts of succeeding legislatures, illustrated by the decisions of the Supreme Court, arevery considerable. Much has been added to their clearness and precision; and although much has also been added to the responsibility of the Judges of Probate, it has become less doubtful how they ought to exercise the discretion reposed in them.

The constitution recognised the office of Judges of Probate, and ordained that they should hold their courts on fixed days, at convenient times and places ; and that all appeals from them should be heard and determined by the Governor and Council, until the legislature should by law make other provision. In 1784, by the act for establishing Probate Courts in the several counties, it was enacted, that some able and learned person, in each county, should be appointed Judge, for taking the probate of wills, and granting administrations ; for appointing guardians to minors, idiots and distracted persons; for examining and allowing the accounts of executors, administrators and guardians; and for such other matters and things as the Courts of Probate should have- cognizance and jurisdiction of by the laws of the Com-_ monwealth; with full power and authority to make out such process or processes, as might be needful for the discharge of the trust reposed in him: and that a suitable person should be appointed Register of wills, administrations, accounts, decrees, orders, determinations, and other writings, which should be made, granted, or decreed upon, by the Judge of Probate; who should be sworn to the faithful performance of his duties, and have the care, custody and keeping of all the files, papers and books, belonging to the probate office.

By the same act, the Supreme Judicial Court was made the Supreme Court of Probate, to have thereafter appellate jurisdiction of all matters determinable by the respective Judges of Probate; and original cognizance of all matters, wherein the Judge of Probate should be a party, or interested. The prov sions, contained in the province laws, for the service of all legal warrants or other process from any Judge of Probate, and for punishing contempt of authority in any cause or hearing before him, were re-enacted ; as were also, by another statute of the same year, those requiring the Judges of Probate to have certain fixed days for making and publishing their orders and decrees, and restricting them from taking part in judging or determining, or acting as counsel or attorney, in any civil action depending on, or having relation to, any sentence or decree passed by them respectively.

The transfer of appellate jurisdiction from the Governor and Council to the Supreme Judicial Court was the principal change, made in the probate system by the statute establishing Courts of Probate. But, by limiting the time for claiming appeals to one month, it rendered more evident the duty of the Judge of Probate to give to parties, having the right of appeal, due notice of all judgments and decrees affecting their interest ; for, otherwise, how could they have opportunity to avail themselves of the privilege of appeal ? And by stating, with such precision and comprehensiyeness, the duties of the Re-

ZL gister, it necessarily required a greater degree of exactness, than had been usual, in the proceedings of the Court. If all the decrees, orders and determinations of the Judge were to be entered of record, it manifestly followed, at least, that they must all be made in writing.

The legislature added to the powers and duties of the Probate Court by varieus provisions introduced in revising the provincial acts, and they continued to extend them by a series of subsequent statutes, till a new revisal of the probate laws became necessary. Among these additional powers and duties , may be mentioned the appointment of guardians to spendthrifts ; removing executors, administrators and guardians; ordering the notice to be given on their — appointment ; receiving affidavits of the notice given; | appointing referees in certain cases; ordering the sale of personal estate ; granting certificate and taking bonds preparatory to the sale of real estate ; ordering the sale of the reversion of dower in insolvent estates; ordering wills proved out of the government to be filed and recorded; issuing dedimus for taking the affidavits of subscribing witnesses to wills; requiring new bonds, when the former sureties become insufficient ; taking bonds of trustees to minors and others, and in some cases appomting such trustees.