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| Maryland Testamentary Acts
A Combs &c. Resource for Maryland Researchers
Prior to 1777 (and for some time thereafter), the Province of Maryland maintained
a Prerogative Court, with all probate records maintained at Provincial (colonial)
level rather than county. As a result, most colonial (pre-Revolutionary War)
estate records are extant, including testamentary proceedings, wills, inventories
and accounts (payments, receipts and distributions), etc. 1
As was the case with all American Colonies, English law still prevailed, but
the Lords Calvert and the Provincial Assembly were permitted to pass legislation
relative to administration of estates, and also to seek and be granted waivers
for special legislation needed due to the distance in time and space between
the colonies and the "mother country." 2
Below is the Testatmentary Act of 1715, which was still subject to English law, and only one of a number of Acts or amendments thereto that have been passed in Maryland (the Act of 1715 was itself amended a number of times), and is presented here solely as a basic starting point for researchers.* Although its declared primary purposes were increased efficiency and decreased abuse, it also covered a number of areas other than administration, and knowledge of this Act can be quite helpful to researchers, particularly in respect to dower rights of widows, the purpose and usage of "next of kin" and creditor approvals, ages of emancipation, actual practices, etc.
*A summary of the "high points" of this Act as well as English law may be added in the future, but at present it is provided "as is."
Note, for example, that although the act required the presence and approval of "next of kin" at estate appraisals, these were not necessarily direct descendants, but could be any two heirs who might be "in line" (under English laws in effect at the time). Next of kin might, for example, include parents, grandparents, uncles or aunts, siblings, or nieces or nephews (the latter often referred to as "cousins" in early records). And, although the next of kin present did not have to be nearest kin, they did have to be adults; and might be the representative (guardian) of a minor child (A male child was not considered an adult until age 21, but a female was an adult at age 16 or marriage, whichever came earlier). 3
Also note that references to the "widow's thirds" below are primarily in regard to personalties (exclusive of marriage agreements), not to any dower which a wife (theoretically) brought with her to the marriage, and which (theoretically) she was automatically permitted upon the death of her husband, nor to her overall right to one-third of her husband's estate. Once the personal estate of the deceased had been appraised and an inventory filed, bills had to be paid and debts collected. Only after these tasks had been completed, were distributions (residuals) made to legatees, including the widow's "thirds." Moreover, in response to concerns of the Assemblymen that some husbands might have intended "considerable" bequests to be part of a wife's thirds, but neglected to so state in their wills, the 1715 Act, gave a widow forty days to make up her mind which it was to be, or forever hold her peace (if not her tongue).*
*To be fair, this portion of the Act was also designed to protect the estates of orphanned children from the ravages of second marriages (wicked step-parents).
In addition to will books and other records of testamentary proceedings, the Prerogative Court maintained inventory books, account books and balance books (1751-1777), and in the case of estates involving minors, account filings could range over a number of years.
The 1715 Act also set time limits for executors and administrators to file inventories and accounts. If one can assume that most did so, then the death date range of those who died intestate (without a will) or without an extant or recorded will, can be more narrowly determined.
Also note that most of the earlier will, account, inventory and balance books have been published in abstract form, but that it is always best for researchers to view original documents, both to avoid possible errors and because much additional data is often in the complete record. Additional information and instructions for obtaining original copies of testamentary records are available online at the Maryland State Archives, Probate Records (Researchers who obtain original copies are encouraged to email transcriptions to the Combs Webmaster for addition to our Maryland website).
We hope this resource will be helpful and invite all researchers to visit Combs-Coombs &c. of Maryland, where will be found many more families than just Combs.
The Combs-Coombs &c. Research Group
"An Act for the better Administration of Justice in Testamentary Affairs granting Adminisrcons recovery of Legacies Secureing filiall portions and distribution of Intestates Estates" (1715)
(Ref: Proceedings and Acts of the General Assembly of Maryland, Proceedings and Acts of the General Assembly of Maryland, April 26, 1715 - August 10, 1716, Acts of the Assembly, April 26-June 3, 1715, Archives of Maryland, Volume 30, William Hand Brown, Maryland Historical Society, 1910, pp. 331-347)
An Act for the better Administration of Justice in Testamentary Affairs granting Adminisrcons recovery of Legacies Secureing filiall portions and distribution of Intestates Estates.
Whereas for the due Administration of Justice itt is most necessary that the wills of all persons may be duly proved and Executed and Lres of Administracon of the Estates of all persons dying without wills may be granted to such persons who have the best right to Succeed thereto and all Legacies Speedily recovered and filiall portions and orphans Estates duly secured and Easily obtained according to Law and Justice
Be itt Enacted by the Kings most Excellent Majesty by and with the Advice and Const of his Majesties Governr Councill and Assembly of this province and the Authority of the same that the Judge or Comry Genll for probatt of wills and granting Administracons shall hold his Court once in Two months at the Least or oft'ner as the Case shall require and therein shall proceed according to the Laws of England now in force or hereafter to be in force within twelve months after such Laws shall be published in the Kingdome of Great Brittaine if pleaded before him Saving in such Cases as by this present Act is provided And that itt shall and may be Lawfull for the Judge for probatt of wills to take the probatt or Cause to be proved any Last will or Testament within this province altho' the same Concernes Titles of Land any Law Statute Usage or Custome to the Contrary notwithstanding.
And to the end that all filiall portions may be secur'd to the Children of all persons dying Intestate and Legacys paid to Legatees of persons making wills or Testaments
Be itt Likewise Enacted by the Authority afd by and with the Advice and Consent afd first, that the Judge for probatt of wills and granting adminisrns shall call all Exers and Adminsers to Exhibitt Inventorys within three months and render Accounts within twelve months next after Admrn Comitted of the personall Estates of such Deced persons and if any Administrator shall faile to Exhibitt such Inventory or give Acct within the time afd being Lawfully thereunto Cited that then the said Judge if he see Just Cause may Issue forth Process of Attachmt against such Administrator to oblige him her or them as well to Exhibit an Inventory or render acct as afd as to answer for his her or their Contempt of such former process after the Usuall Manner and in Case such Administrator shall not render such Acct or Exhibitt such Inventory Untill two Sevll Attachmts shall be returned to two Separate Courts agt such Admrrs Either that the Adminisor hath been Attached or is not found in the County where they Live itt shall & may be Lawfull for the said Judge to revoke the first Letters of Admrn to such Adminisrr Comitted and shall grant admrn de bonis non Administratis to such as shall have the next right to such Admrn which said Administrator shall be duly Qualifyed as Usuall and give Security as all other Adminisrrs doe and shall sue and Implead the former Adminisr before the Judge afd for the Exhibitting an Inventory and rendering an Account of the Estate of the Intestate or if he shall see fitt shall make Application to such Judge or Comry Genl for the Assignmt of the bond Entered into by the former Adminisr and his Sureties and shall or may put the same bond in Suite against such Adminisrr and his Sureties (if need be) to be relieved thereon for any Neglect or Mall Administracon by such former administrator done or Suffered of such Deceased psons Estates.
And be itt further Enacted by the Authority afd by and with the Advice and Const afd that when a full Acct is made by any Adminisr of any Intestates Estate the Judge afd shall make or Cause to be made distribution of the Surplusage of such Estate in Manner and forme following (that is to say) one third part of the said Surplusage to the wife of the Intestate and all the residue by Equall portions to and amoungst the Children of such persons dying Intestate and such persons as Legally represent such Children in Case any of the said Children be then dead other then such Child or Children (not being heir at Law) or who shall have any Estate by the Settlemt of the Intestate or shall be Advanced by the Intestate in his Life time by portion or portions Equall to the Share which shall by such Distribution be Allotted to the other Childn to whome such distribution is to be made. And in Case any Child (other then the heir att Law) who shall have an Estate by Settlement from the said Intestate in his Life time by portion not Equall to the share which will be due to the other Children by such distribution as afd then soe much of the Surplusage of the Estate of such Intestate to be Distributed to such Child or Children as shall have any Land by Settlement from the Intestate or were Advanced in the Life time of the Intestate as shall make the Estate of all the said Children Equall as near as can be Estimated, but the heir att Law notwithstanding any Land that he shall have by Descent or otherwise from the Intestate is to have an Equall part in the Distribution with the rest of the Children without any Consideration of the Value of the Land which he hath by Descent or otherwise from the Intestate. And in Case there be no Child or Children nor any Legall representatives of them then one Moyety of the said Estate to be allowed to the wife of the Intestate the residue of the said Estate to be Distributed Equally to Every of the next of kindred of the Intestate who are in Equall Degree and those who Legally represent them (Provided there be no representatives admitted among Collatteralls after brothers and Sisters Children) and in Case there be no wife then all the said Estate to be Distributed Equally to and Amongst the Children and in Case there be no Children to the next of Kindred in Equall Degree of or unto the Intestate or their Legall representatives as aid and after such Division or Distribution made or Caused to be made by [him] the Judge shall Transmitt the Acct thereof if not before Transmitted to the Severall and respective Justices of the County Courts where the said Estates shall be and remaine and if any part thereof belong to an Orphan who is able of Chooseing his Guardian such orphan shall be Called to Court and shall then and there Choose his Guardian into whose hands the said Orphans Estate shall be Comitted but if such orphan be not att age then the Justices afd shall put the persons Lands goods and Chattells of the said orphans into the hands of such person or persons as they shall think fitt and take a bond with two Sufficient Sureties in the names of the Orphans themselves for the Secureing and Delivering of the said Estates to the said orphans or their Guardians when thereunto Lawfully Called According to the rules and Directions by this Act prescribed and not Otherwise which Rules shall be rules not only for the Justices of the County Courts to proceed by in taking the Accounts of Guardians or Trustees for Orphans but alsoe for the Judge for probatt of wills and granting Administracons in the Accts of Administrators and bare Exers to the benefitt of others nor shall the Judge give any other Allowances to any Administr or Administrs upon his her or their Accounts but for Debts bona fide owing from the Deced and really paid or Secured to be paid by the Sevll and respective Administrs Together with the necessary Charges.
First no Negroe or other Slave shall be Sold or disposed of by any Administr for payment of Debts or otherwise reserved for the Adminisrs own Use in Satisfaction of any Debts due to the said Adminisr nor any Execution Served upon any Negroe or other Slave soc long as there shall be other goods of the Deceased Sufficient to Satisfie the Just Debts of the said Deced but shall be kept upon the hazard of the Estate and Imployed for the benefitt of the Credittors and Orphans (if any be) Untill the Cropp that was upon hand or shall have been begun in the Life time of the Deced shall be finished which shall always be Deemed to be by the Last day of January next after such Intestates Decease after which the Adminisr is to Account for the Estate and such Cropp shall be Assetts to the Credittors and Divideable between the wife and Child or Children or Relations of the said Deceased if there be no Credittors and the Judge for probatt of wills upon passing the Account of such Administrator shall allow him his reasonable Charges Expended in finishing such Cropp.
Secondlythat no Account be allowed for diet Cloaths or physick to any Admr or Guardian to any Orphan Against the Estate of the Intestate or against the filiall portion of any Child Committed to any Guardian or other psons Intrusted by the County Court but the said Orphan shall be Maintained and Educated by the Interest of their Estate and the Increase of their Stocks soe far forth as their Said Interest and Increase will Extend Unto but if the Estate be so small that the Interest or Increase thereof will not Extend to a ffree Education and Maintainance of such orphans then such Orphans shall be bound Apprentices to Mariners or some handicraft trade or other person att the discretion of the County Courts untill they Arrive to the age of Twenty one Years Except some Kinsman or relation or some other Charitable person will Maintaine and Educate them for the Increase of the small Estate they have without and Diminution of the principall which shall always be delivered to the Orphans at the years hereafter in this Act Limitted and Appointed then such Kinsman relation or other Charitable person is thereby Obliged to performe what is by this Law before Injoyned and to be Ascertained by the County Courts. Provided always that where any person being a protestant that shall dye and Leave a widow and Children and such widow shall Intermarry wth any person of the Romish Communion or be herselfe of that Opinion and profession itt shall and may be Lawfull for his Majesties Governr and Councill within this province upon Application to them made to remove such Child or Children out of the Custody of such parents and place them where they may be Securely Educated in the protestant religion and to order such reasonable Maintainance for such Child or Children soe removed out of the Estate or Estates belonging to such Child or Children in whose hands soever having respect that only the yearly profitts and Increase thereof be applyed thereto and such Childrens Estates be not Diminished thereby.
Thirdlythat all Cattle horses and sheep shall be returned in kind by the Guardians or other persons Intrusted with Orphans Estates that is to say soe Many Cattle horses and sheep as were delivered to the Guardians or Trustees of the Orphans and as near as Can be of Like Value.
Fourth that all money plate rings and Jewells be preserved and not used by the Guardians or Trustees and Delivered to the orphans when they Come to Age and that all household Stuff and Lumber be Appraised in Money and not Otherwise and the Value thereof paid to the orphans as afd Either in Money According to the Appraisemt or in Tobacco att the then price Current and in Case any Difference shall Arise what shall be price Currt att the day of payment Limitted in the bond taken the Justices in the County Court where the Orphans Estate doth Lye shall then determine what shall be the price Currt
Fifth, that Every Male Orphan shall be of full age to receive his Estate from his Guardian att the age of Twenty one Years and not before but in Case any person by his Last will and Testament doth Appoint any person to be his Execur or Execurx that is full Seventeen years of age that person soe Appointed shall be Adjudged to be of Sufficient age to be Executor or Exrx And if such Extt or Exrx be under the age of Seventeen years the Administracon shall then be Comitted to such proper person as the Judge for probatt of Wills and granting Adminisrns shall Legally approve of Durante Minoritate to the profitt use and behoofe of the Infant Exrs or Exrx and not otherwise nor in any other Manner. And forasmuch as the right to Adminisrn of the goods of persons Intestate may fall upon persons under the age of Seventeen years It is hereby Declared that as they are within Like reason soc they are within Like Law with Infant Extrs.
Sixth, that Every female orphan shall be Accounted of full age to receive her Estate att the age of Sixteen years or day of Marriage which shall first happen
Seventh, that all Negroes and other Slaves after the transmitting of the Estate to the County Courts as afd shall be appraised to the Guardians or Trustees and preserved by them and be Imployed to the said Guardians or Trustees use and benefitt and the like number of Slaves and of the Like Ability of body be returned to the said orphans out of their Increase or otherwise att their full age by this Law Limitted and if any of the said Slaves be grown aged or otherwise Impotent or be Lamed and that the Increase will not make the originall Stock good as to the Number and ability of Body that then they shall be againe appraised by the said County Courts and the Guardians or Trustees shall pay to the Orphans so much Money or Tobo as the County Courts shall adjudge the orphans Stock of Negroes Then to be of Less Value then they were att the time of their first appraismt and Delivery of their Said Slaves to the said Guardians or Trustees but in Case no Guardian or other person will upon those Termes Accept of those Slaves then itt shall and may be Lawfull for the said Sevll and respective County Courts to put the said Slaves out upon other terms to any other person soe that the said Originall Stock of Slaves be not Sold nor any of their Increase but in the best Manner preserved for the Orphans till they come to their Sevll ages by this Act Limitted and. Appointed to the Intent they may have their first Stock made good to them in Number Value and ability of body if itt may be.
Eighththat all Servants for years be Likewise returned in kind to the orphans att their full age (That is to Say) the same Number of the same age and Sex and by like Number of years to serve and of the same Ability of body as near as can be Estimated as the Servants were when reced by the Guardian or Trustee. And to the end that after an Acct or Distribution made as afd the ballance of such Acct or the distribution of such Ballance may not be neglected to be Transmitted to the Severall and respective Justices of the County Courts as before is Directed
Be itt Enacted by the Kings most Excellt Majesty by and with the Advice and Consent afd that if such Judge for pro batt of Wills Commissary or Commrys Genll shall not within three months after such Account made up Exhibitted and past in his Office or after distribution made by him as aId Transmitt the ballance or Acct thereof as before by this Act is directed to the Sevll and respective Justices of the County Courts where the Estate shall be and remaine he or they shall forfeit and pay to our Sovereigne Lord the King his heirs and Successors the sume of Ten Thousand pounds of Tobo of which one Moyety for the Support of Governmt of this province the other Moyety to him or them that shall sue for the same to be recovered by Action of Debt bill plaint or In formation wherein no Essoyne protection or Wager of Law to be Allowed.
Ninthwhereas Every Administrator in an Inventory Inserts what Debts are Sperate and what Debts are desperate the Judge for probatt of wills shall Transmitt those Desperate debts of the Estate unto the Severall and respective Justices of the County Courts where the Estates shall lye to the end the said Justices may Inquire whether the said Adminisr hath by fraud or Otherwise neglected to recover the same or hath reced and never Accounted for the same and shall with the residue of the said Estate Comitt the said Desperate Debts to the Care of the said Guardian or other Trustees by them Imployed and shall Yearly and Every Year Call the said Guardians to Acct for the same and duly Inspect what of the said Debts they have reced or might have reced and if the said Guardian or Trustee failes to give in his Account yearly or by ffraud or Covin Neglect or forbear to recover the same the said Guardian or Trustee shall stand and be Accountable for Every such debt by him reced and not Accounted for or Neglected or for- bourn to be recovered under the penalty of five hundred pounds of Tobo [sic] Each Justice present in Court one halfe to his Majesty the other halfe to the Informer or him or them that shall sue for the same to be recovered as afd
Tenththat the Justices of the County Courts take able and Sufficient security for Orphans Estates & Enquire yearly of the Security and if there be Just Cause that they require new and better Security and upon refusall to give new and better Security that they remove the orphans Estates out of their hands and farther that the Justices of County Courts shall yearly in June Court inquire by a Jury of good and Lawfull men to be Summoned out of the Severall hundreds of the County not under the number of Twelve who upon their Oaths shall Enquire According to the forme hereafter Exprest (Viz) whether the orphans be kept Maintained and Educated According to their Estates and whether Apprentices are taught their Trade or rigorously used and Turned to Comon Labour att the Ax or hoe instead of Learning their Trades and if they find that orphans are not Maintained and Educated According to their Estates or Apprentices Neglected to be taught their trades upon pretence that the last year is Enough to Learn their Trade that they remove them to other Guardians and Masters and in Case the Jury find that any Apprentice is not taught his Trade but put to other Labour as aid the County Court shall Condemn the Master of such Apprentice to make the Apprentice such Satisfaction as in Justice his years of Labour or other work shall Deserve.
Eleaventh that the Justices of the County Courts Cause the Condition of the bonds they take from Guardians or Trustees of Orphans Estates to be Exactly drawn According to this Act and recorded in the County Court and the Indentures for Apprentices Likewise that itt may duly Appear to the Justices whether Guardians Trustees and Masters doe right and Justice to Apprentices and to the Country and that the Justices do right between them and to that end that they Cause the Clerk of their County to present the Jury with a list of the Orphans and apprentices of their County Every June Court.
TwelfthAnd for the better ascertaining what Salary shall be Allowed Exers and Adminisrs upon their Account of Admron by the Comty Genll of this province for the paines and Trouble hazard and Adventures in Administring Estates
Be itt Enacted by the Authority afd by and with the Advice and Consent afd that for Every Sume or Sumes of money Quantity or Quantitys of Tobo or other goods or Chattells that shall be bona fide paid by Exrs or Adminisrs the Comry Genll shall allow the Exrs or Adminisrs the Salary of Ten per Cent Except as is herein after Excepted.
And be itt further Enacted by the Authority afd by and with the Advice and Const afd that if the residuary Legatees of any person or persons dying within this province and making a will or the next of Kindred to any person or persons dying Intestate in this province and who ought to have the residue of such deced persons Estate doe dwell in England or other parts of his Majesties Dominions out of this province soe that the Exer or Adminisr Convert the residue of all the reall and personall Estate (after debts and Legacies here paid) into Money or other Effects for the best advantage of the persons to whome due and returns the same to such residuary Legatees or kindred as aid that then the Commissary Genl shall Allow to such Exer or Admrr the Usuall Salary allowed by Merchants to there factors (Viz.) Ten per Cent.
And whereas itt Sometimes happens that persons of great dealing dying in this province have their books Very Imperfect soe that itt Cannot be Exactly known what debts are due upon such books unless the Exr or Admrr takes the paines to Carry about such books from one Supposed Debtor to another to State the Accts which many times proves a Considerable Toyle to the Executor or Adminisr and requires a Very great deal of Trouble and Charge and many times there appear Discounts or Defeazances or Receits to barr such book debts or the debtors where the Accts are old are Insolvent or the like and the Executors or Administrators for such their great paines and Diligence have hitherto had no Allowance
Therefore least itt should be a Discouragement to Extrs and Admrs that having no Salary therefore they should be negligent or too Sparing of paines to Improve the Testators or others Estates
Be itt Enacted by the Authority Advice and Consent afd that where the Executor or Administrator can fairly make appear to the Commissary Genll that he hath had such Considerable Toyle as afd and no benefitt hath Arisen to him thereby to recompense his said Toil It may be Lawfull to and for the said Comry Genll to Allow such Ext or Administrator something in the whole for such paines and desperate debts att the Discretion of such Commissary Genl not Exceeding five p Cent on any one Mans Estate.
But for such part of the Deced's Estate that shall remaine (after all debts and Charges paid and Disbursed and Acct past before the Commry Genll) to residuary Legatees or other Legatees or next of Kindred and Delivered to them in Specie without Traversing the Estate and Converting itt into Money or Tobo for that purpose there shall be no Salary allowed Any Usage Custome or former Act of Assembly to the Contrary notwithstanding.
ThirteenthAnd further in regard by the Judges or Comry Genl for probatt of wills and granting adminisrns his Comsn there is a Saving to all persons their right of appeale from the Sentence of the said Judge to the Chicle Governr of this province for the time being
Be itt Enacted by the Authority aid by and with the Advice and Consent aid that all and Every person and persons Appealing from the Sentence of the said Judge shall within fifteen days at the farthest after such Sentence Enter his Appeale before the said Governr and within fifteen days more Petition the Governr of this province for the time being to Examine the Sentence of the said Judge or Appoint such other person or persons as he shall think fitt to hear and Determine the same whose sentence shall be finall without other appeale or review. Provided nevertheless that in Case the person or persons against whome such Sentence shall pass shall Comply with the same then itt shall and may be Lawfull for the Governr or such Court of Delegates to grant an appeale therefrom.
And be itt further Enacted by the Authority afd by and with the Advice and Consent afd that the Comry Genl of this province or other person or persons that shall from time to time be Appointed as Judge or Judges in Testament Causes for granting Adminisrns shall from time to time and att all times during their Continuance in such Office Constitute ordaine and Appoint some able and Sufficient person of good repute and a ffreeholder in Every respective County within this province to take the probatt of any Last will and Testament of any persons Either nuncupative or in writing Even tho the same be Concerning Titles of Land and Likewise to grant Adminisrn of the goods and Chattells of persons dying In testate in the respective County or Countys where each person or persons soe appointed shall reside and Inhabitt which said person in Each respective County of this province soe appointed as afd shall and may take the proof of any will whatsoever as afd of any person as afd within the County as afd and grant Letters Testamty upon the same and likewise grant Adminisrn to any person or persons whatsoever that right has to the Administracon of the Estate of any person deced within the County where he dwelleth as afd but if any Contest or dispute shall arise between any persons Concerning the right to Adminisrns or Executorship the same shall be decided by the Commissary Genll or the Judge in Testamentary Causes and not by such person appointed in Each County as afd neither shall such person grant Adminisrn or take the probat of such will till such time as such dispute or Difference shall be decided and Determined by the proper Judge thereof and Certificate from such Judge of such determination or Decision and such person soe Appointed as afd shall and is hereby Allowed as a ffee for granting such Letters of Administration as afd swearing the Adminisrs and Appraisers or for the probatt of any will and Swearing the Exr or Exrx appraisers and Letters Testamry the sume of one hundred and fifty pounds of Tobo to be Levyed by Execution after the same Manner and under the same penalties directed by the Act of Assembly of this province for Limittation of Officers ffees against the person or persons requireing and having Letters of Administration or Letters Testamentary as afd Unless the Estate be soe Small as the Inventory of such Estate doth not Amount unto ten pounds in Money there shall be paid to such person soe Appointed for such Letters of Administracon or Letters Testary as afd the sume of fifty pounds of Tobo to be Levyed as afd and no more and then and in Every such Case the Comry shall have no ffees.
And be itt Enacted by the Authority afd by and with the Advice and Consent afd that all Guardians of orphans that shall have any reall Estates in Lands with the orphan or orphans to whome the same belong Comitted to them other then such to whome the Testator in his Life time by his Last will and Testament hath otherwise ordered and Disposed of within one month after taking upon him or her the Guardian ship of such Orphan or orphans shall with one Commissioner of the said County where the Land lyeth and two other persons of good repute and well skilled in building and plantation affairs neither of them being of kin Indebted or otherwise Interested in Either Orphan or Guardian (such two persons to be Nominated by such Commissioners) Enter into the Lands and plantations of such orphan or orphans belonging and View the dwelling houses and Outhouses Lands orchards and fences that are upon the said plantation and then & there the said two persons soe Qualifyed as aid shall take their Corporall oaths Upon the Holy Evangelists by the said Comr to be Administred that According to the best of their skill and Judgment they will make a Just Estimate of the Annuall Value of the said Lands and plantation and what Dwelling houses out houses and orchards are upon the same and what repair they are in what part of the said Land the said Guardian may be farther Comitted to Clear upon the said plantation as well to raise the yearly rent soe Valued as afd as alsoe toward his yearly Charge in keeping the said Dwelling houses Outhouses Orchards and ffences in repair And soe by him to be Left always having a regard to Leave a proportionable part both for Quality and Quantity of uncleared Land for the benefitt and Advantage of the Orphans or heir when att age to possess the said Land or plantation as alsoe the orphans Maintainance out of the same where the profitts of personall Estates be not sufficient to maintaine him or them and the same to Certifie under their hands and Seales Attested by the Commissr soe Administring the Oaths as afd to the County Court next Ensueing after such review soe had and made as afd and then to remaine upon Record untill the said orphan or heir come to Age which Certificate soe entred and remaining upon Record as afd shall be Sufficient Evidence in Law for the said Orphan or Orphans to recover Double damages in an Action of waste by them to be brought when att age for any waste Sale or destruction Comitted or done in any of the premisses other then what the persons have Certifyed and thought Necessary with due respect had to all Matters and Circumstances afd And to the end as well the Guardian and Guardians afd as the other persons Mentioned and Appointed to Value the Land as afd may not faile to doe their duty
Be itt Enacted by the Authority afd by and with the Advice and Consent afd that Every Guardian or Guardians of any orphan or orphans that shall for the future Neglect within one month after Entring upon his or their Guardianship afd to doe and performe what is by this Act required shall forfeit the sume of five thousand pounds of Tobo and any Comr or Justice of the peace or other person or persons in the said County Living that shall refuse or Neglect what is by this Act required of them to Doe and performe being thereunto Demanded shall forfeit the sume of five hundred pounds of Tobo Each one halfe thereof to our Sovereigne Lord the King his heirs and Successors for the Use of the orphan or orphans therein Concerned the other halfe to the Informer or him or them that shall sue for the same to be recovered in any Court of Record in this province of all and Every such person that shall soe as afd refuse or Neglect to performe what is by this Act required.
And whereas it has been doubted whether in Valuing or Estimateing the said orphans Lands and plantations in this Act mentioned the Quit rents to the Lord of the same are not to be Considered and allowed for as well as reparations and other things in this Act Mentioned
It is hereby further Enacted and Declared that the said Quit rents Ought and are hereby declared and Enjoyned to be Considered Deducted & Allowed upon the yearly Value of the said Land and the Guardian pay the same. And that Any Guardian afd that shall Neglect after such allowance made of the same in the Value of the said Land and hath not paid such Quit rents as afd shall forfeit to the orphan when at age four fold the Value of such rents that he left in Arrears att the full age of such Orphan to be recovered by Action of Debt bill plaint or Information Wherein no Essoyne protection or wager of Law to be Allowed.
And be itt further Enacted by the Authority afd by and with the Advice and Consent afd that the Commissrs of Each County Court within this province by Virtue of this Act shall have power from time to time and att all times hereafter upon presentment of the orphan Jury or other Information given to them of such Sale waste or Destruction made done or Comitted upon any orphans reall Estate by any such Guardian to Issue their warrant and Cause such Guardian to appear before them in the County Court And if upon Examination thereof the said Information be sufficiently proved that the said Guardian shall Answer the Damage of such waste by him Comitted Contrary to this Law to such orphans when att age and the said Commissrs shall require such Guardian or Guardians to give Sufficient Security to make Satisfaction to the said orphan or orphans when att age as afsd and upon refusall thereof the said orphan or orphans (if at age to Choose his or their Guardians) shall Elect his or their Guardian or Guardians and if not att age to make such Election such other person or persons shall be appointed as the Commissioners of the County Court where the said Land Lyes shall think meet which said Guardian or Guardians or other person or persons soe Chosen or Appointed as afd being willing to take the said Orphans reall Estates into their possession shall hold and Enjoy the said Lands and plantations Comitting no waste and performing all such Matters and things at his or their Entry thereupon as by this Act is required untill the said orphan or orphans Come to age and the said person or persons so Chosen Guardian or Guardians as afd or by the Justices of the County Court soe appointed and put in possession of the orphans Lands as afd shall by Virtue of this Act in the name and to the use of such orphan bring his Action of waste against the former Guardian for the Damages by him Comitted and the Commissioners of the Sevll County Courts within this province are hereby Injoyned and required to give in Charge Every June Court to the orphan Jury to Enquire if any waste hath been made of orphans Lands Under the penalty of six teen hundred pounds of Tobo one halfe thereof to his Majesty his heirs and Successors for the Support of Goverment the other halfe to him or them that shall sue for the same to be recovered in the provinciall Court by bill plaint or Informacon wherein no Essoyne protection or wager of Law to be Allowed.
And be itt further Enacted by the Authority afd by and with the Advice and Consent afd that the Sevll and respective Deputy Commissarys which are and shall be in the Sevll and respective Counties within this province shall and are hereby sufficiently Authorized and Impowered to pass Audite and Allow all such Accounts as shall Come before them relating to dead mens Estates wherein they have granted Letters of Administration or Letters Testamry not Exceeding ffifty pounds in moneyProvided there be no Controversy thereon and to transmitt such Accts within two months to the Commissary Genlls office att the Citty of Annapolis under the penaltie of two thousand pounds of Tobo one halfe to his Majesty for the Support of Governmt and the other halfe to such party as shall render such Acct for which passing such Acct the said Deputy Commissry shall be allowed as a ffee the Sume of fifty pounds of Tobo to be Levyed as afd and no more and if such Deputy Comry as afd shall Exact Demand or receive of any person whatsoever more then is by this Law for Executeing such his office Allowed him he shall be Lyable to such paines and penalties as are Included in a Certaine Act for Limitting officers ffees in this province but in Case itt shall soe happen that any person or persons having any Interest or Claime in such Estates shall make any Objections to the Legality or Justice of any Article or Articles Contained in the said Accts then the said Deputy Comrys are forthwith to mark such Articles and Transmitt the Acct with all papers thereto belonging unto the Commissary Genll before whome all parties are to appear and Defend their Interest.
And whereas many men have bequeathed and devised or hereafter may bequeath or Devise to their wives by their Last wills a Considerable part of their personall Estates Intending no Doubt but not Expressing that such bequest or devise should be in full of such wives part portion or third part of the said Testators Estate and yet such wives Widdows and relicts have not only Claimed such Devise and bequest as Legacies but have further Claim'd their part of the remaining Estate of their deced husbands
Be itt further Enacted by the Authority afd by and with the Advice and Consent afd that in such Case where the Testator bequeaths or devises a Considerable part of his personall Estate to his wife and itt appears not in any part of his will or Codicill that he Intended the said Devise as a Legacie to his wife only and that she might Nevertheless have a Third part of his remaining Estate that itt shall be att the Election of such wife widdow or relict within forty days after the probatt of such will to make her Election before the Judge for probatt of wills or the respective deputy Comrys in Each respective County whether she will be Content with such Devise or will have her third and release the Devise and if she make Choice to have what is soe bequeathed or devised to her then by that Choice she shall be forever barred from Claiming her third part afd and if she renounce what is soe bequeathed and devised she shall then have her third part afd and be barred of her devise but shall not Claime or have both but in Case such widdow shall Neglect to make such Election within the time afd she shall then be Concluded by having a full third part of the Clear personall Estate of her deced husband besides her dower of his reall Estate in full of all such devises or Legacys.
Provided always that such part of the personall Estate or Estates be Lyable to pay the debts of the deced as other part of the Estate is or ought to be and if such wife widdow or relict have any part of her husbands Lands or reall Estate of Inheritance devised to her by her husband And that itt doe not appear by any part of the will that he Intended her such a part of his reall Estate Afd and her dower out of the rest of his reall Estate besides then itt shall be Lawfull for such wife widdow or relict to make her Election as afd within the time afd whether she will Accept of such devise or of the third part of all her husbands reall Estate of which she is Endowable and if she Accept of her devise she shall be forever debarred of her dower out of the rest of the Testators reall Estate afd and if she Accepts of her dower then such Acceptance shall be Adjudged a full recompence of her devise afd but in Case she shall neglect to make such Election within the time afd she shall then by such Election be Concluded to what is devised to her and shall be thereby barred of her dower of such Deceds Reall Estate Unless itt shall appear to be the designe of the devisor that such widdow shall have both devise and Dower Any Law Statute Usage or Custome to the Contrary notwithstanding.
Provided always that if any Marryed woman shall have any Estate Settled upon her by Joynture or other Settlement before Marryage such Joynture or Settlement shall barr her of her dower of her husbands Lands yet itt shall be Lawfull for her to Accept what her husband shall by his Last will and Testament Devise her.
And whereas many Orphans have greatly Suffered by the second Marryages of such widdows who having Estates in possession by will or right of Adminisrn Either by such widdows while sole or their husbands dureing the Coverture the same have been wasted and Imbezelled and if the woman dye the said husband refuses to render an Acct of such Estate Alledging that he is neither Exr nor Adminisr to his wife nor of her former husband whereas att Comon Law a woman Covert Exrx Can do no Act to prejudice her husband all such Acts dureing the same being Void without his Consent he not preventing such waste when in his power ought to Answer for the same
Be itt therefore Enacted by the Authority afd by and with the Advice and Consent afd that for Every such waste by such second husband dureing the Coverture such husband shall Account for the same and be Lyable to be sued together with his wife if Living or by himselfe if she be dead (as well as the security) for the said Estate due to such orphan by such orphan if att age[,] if under age by his Guardian and alsoe for all waste Comitted by his wife before Marryage or by himselfe afterwards
And whereas Orphans of persons dying Intestate by the good provision of this Law in Committing them to the Care of the County Court to Inspect the good Condo of their Securitys and good usage as afd are by Experience found to be in better Condition In respect of both then the Orphans of Testators whose Extrs hitherto have rarely given any Security and that the security they have given many times proves Insolvent
Be itt therefore Enacted by the Authority afd by and with the Advice and Consent afd that the Judge for probatt of wills shall hereafter take good and Sufficient Security of all Extrs and Adminisrs to the Use of any orphan or orphans in any will mentioned and not Solely to their Own Use for the true performance of such Last will and Testament according to Law and the Intent of the Testator and shall Transmitt an Acct of the Legacies Left to any Infant Orphans to the County Courts to be by them secured in the same manner as the ballances of Intestates Estates soe farr as shall be Consonant to the will of the Testator and the Justices of the Sevll County Courts shall att the same time that they Inquire by a Jury of the good usage and Condition of the Security of other orphans alsoe Enquire of these and if they find the security Like to be Insolvent or the Orphans ill used that then itt shall and may be Lawfull for such Justices to Act therein as they are by this Law Directed in the Case of Intestates Estates always provided that nothing shall be done by Virtue of this Act which shall seeme repugnant or Contradictory to the last will or Testament of any person deceased.
And for the more Speedy Adminisrn of Justice to orphans Legatees and others in the prerogative Court for probatt of wills and granting Adminisrns within this province which hath hitherto been often Delayed by Tedious Methods used in Chancery before the Judges Sentence in the said Court Could take Effect the methods of England being att present not practicable here
Be itt therefore Enacted by the Authority afd that the prerogative Court for probatt of wills within this province shall have such like Authority in the Enforceing Obedience to the process Orders Interlocutory Sentences and Decrees thereof as the high Court of Chancery now hath or of right ought to have and that Every person or persons that shall not after Sentence given in the said Court agt him or them within fifteen days after such sentence Enter his Appeale with the said Judge giving such Sentence and within fifteen days more procure an Examinacon thereof by a Court of Delegates nor in the mean time Comply with the Sentence of the said Judge itt being sent to them under the hand and Scale of the said Judge nor give in security to performe the same and oath made of the refusall thereof It shall and may be Lawfull to and for the said Judge to Issue forth of the said Office Under his hand and Seale an Attachmt against the bodys goods or Chattells of the said persons soe refuseing and him or them to Imprison or his or their goods Chattells or Creditts to attach untill he or they Satisfie or Comply with the said Sentence.
And whereas orphans and Credittors are many times Injured by the Low Appraismts and Undervalueing of the Estates of the Deceased, Therefore
Be itt Enacted by the Authority afd by and with the Advice and Consent afd that when any Exr or admr doth appraise the Estate of the Deced he shall give notice of such his appraismt and Call together two of the next of kin of the said Deced and two of the Credittors of the said Deced if any there be who shall be present att the said appraismt with the sworne appraisers and shall Certifie to the Comry or his Deputy Under their hands that they were present att the appraism and doe Approve thereof
And if any Exr or Adminisr returne an Inventory without such Certificate as aid or without making itt appear that such Kindred or Credittrs having due notice of the time and place of such appraismt refused or Neglected to be present the said Judge or his deputy in Each respective County in this province shall not Accept or receive the same into his or their Office or Offices.
And be itt further Enacted by the Authority afd by and with the Advice and Const afd that from and after the publication hereof no person or persons being Exrs or Admrs of any person deced within this province shall be Lyable to pay or Satisfie debts Contracted out of this province of what nature or Quality soever (Debts due to his Sacred Majesty his heirs and Successors only Excepted) before debts due within this province from the Estate or Estates of any person or persons deced shall be paid and Satisfyed if such Exr or Admr shall have Assetts in his her or their hands Sufficient to pay and Satisfie the same such Exrs and Admrs having respect to the Quality of the debts due within this province as afd unless the Credittr or Credrs of the Deced being persons residing out of this province as afd on any Action or Actions by him her or them brought agt such Exrs or Admrs as afd upon any debt or Contract of a higher nature then those Contracted within this province as afd be it by Statute Merchant or of the Staple Judgmt bond or otherwise doe upon Tryall Sufficiently make itt appear that such Exr or Admr had due knowledge and Cognizance thereof upon due proofe thereof as afd if such Exrs or Admrs shall have paid Debts of an Inferior Nature not recovered agt them by due Course of Law or Suffered Judgmt to goe agt them for any such Debt as afd without pleading such fforreigne debt in stay of Judgmt such Exr or Admr not having assetts in his her or their hands sufficient to pay the Debt as afd and Satisfie the same the Court before whome such action shall be brought shall give Judgmt and Award Execution agt such Exrs or Admrs de bonis propriis to such Credittr or Credittrs as afd as the Law in that Case directs any thing in this present Act to the Contrary thereof in any wise notwithstanding.
1 Inventories and accounts did not include real property, but only personal property, then often described as "personalty," meaning "moveable goods." The distribution of an estate's real property was based on the deceased's will, if any, or laws of progeniture or descent, whichever was applicable (See Combs &c.'s Lines of Descent
2 Because Maryland was a proprietorship rather than a colony, her charter granted title to the proprietor (the Lords Baltimore) rather than to the King. This permitted considerably more leeway in respect to legislative authority.
3 See also the 1678 Nuncupative Will Proclamation of the Provincial Council re both nuncupative wills and next of kin.
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