USA > Massachusetts > Suffolk County > Registers of probate for the county of Suffolk, Massachusetts, 1639-1799 > Part 10
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"The Petition of John Payne and John Cotton Registers of the Court of Probate, for the County of Suffolk - Setting forth That the
1 Minute Book of the Court of General Sessions of the Peace, II.
2 Ibid., III.
The Court ordered payment to several persons named in the account of the Committee, among others to Alexander Young, "for Liquor deld Masons Car- penters, &c" £1. 8. 2.
Ibid., III.
The Boston News Letter of March 15, 1764, contains the following notice : -
" The Judge of Probate for the County of Suffolk, intends to hold a Court at his House in Milton. every Monday in the Forenoon whilst the Small-Pox con- tinues in the Town of Boston."
The official Report on the Small Pox, printed in the Boston News Letter of July 5, 1764, shows that 1,537 persons removed into the Country to escape infection.
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Walls of the office of said Court were so damp that your Petitioners apprehend they Endanger their health thereby and that the papers & Reccords of said Office are very much exposed to the dust and Rot more especially since they have made use of Sea Coal firing, they further beg Leave to Represent to this Court that they are nat Considerable expence in providing Coals which they humbly apprehend ought to be a County Charge, and are Informed is so with Regard to the Clerks office of the Court of the Court of General Sessions of the peace for the sd County and Your petitioners would hope that they are equally En- tituled thereto, and therefore prayd that the Court wou'd have Con- sideration thereof, Which Pett" was Preferd to the Court in January last, at Which time Joshua Winslow and Joseph Dowse Esq" were appointed a Committee to make Enquiry into the Necessity thereof, & make report to the next Court. Which they have accordingly done, in the Words following
We the Subscribers being appointed to View the office within meu- tioned are of Opinion that it Would be of Service to have Glass doors placed before the Books and papers, also to have the lower part of the Wall lin'd with Boards, also some alteration in the Chimney. Which Report after being Read to the Court Was Accepted by them, And Joshua Winslow and Joseph Dowse Esq" are desired to see that the Severall things Reported, be done."
The Records of the Court of General Sessions under date of January 26, 1768, show the following petition : 1 -
" The Petition of Sundry Inhabitants of the Town of Boston, pray- ing that the wooden Shop adjoyning to the Probate Office in Queen Street may be removed, they apprehending said Office to be much endanger'd by Fire, in case said Shop is suffer'd to remain there any longer. It is thereupon Order'd that the Sheriff of this County take care that said Shop be immediately taken down, or removed to some other place distant from said office."
As early as July 30, 1765, the Court of Sessions had ap- pointed a committee to consider the expedieney of building a new Court House and a new Jail.2 The Jail was " begun the
1 Minute Book of the Court of General Sessions of the Peace, IV.
2 Ibid., IV.
It was while the Probate Records were kept in the Brick Probate Office in Queen Street that the Stamp Act was passed.
These records, during the disgraceful riot of August 26, 1765, fortunately escaped the fate which befell the records and files of the Court of Vice- Admi- ralty, which, in part at least, were committed to the flames by the drunken mob in the attack made on the house of William Story, the Deputy Register of that Court. Swollen in numbers and "ripened in ebriety and madness," after plun-
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twelfth day of August 1766, and finish'd the twenty first of March 1767."
dering the house of Benjamin Hallowell Jr., the Comptroller of the Customs, and consuming the contents of his wine cellar, the rioters " with intoxicated rage" next fell upon the house of Thomas Hutchinson, Lieutenant Governor and Judge of Probate, demolishing every part of it except the walls. The wanton destruc- tion of his large and valuable collection of manuscripts and papers, public and private, relating to the history of the colony from the first settlement - the ac- cumulation of a lifetime and the only one of its kind - was a great and irretriev- able loss, the extent of which can hardly be estimated.
In connection with this subject, the following letter is of interest and may properly claim to find here a place. Judge Hutchinson, writing to William Bollan under date of Boston, December 20, 1765, says : -
"DR SR
I thank you for your intell. by Scott The inclosed paper will surprize you. Affairs grow worse & worse I came to town to day uncertain whether I should not be obliged to go aboard this ship to avoid the like dishonorary submissions If something is not done that ye law may have its course I fear there will be a general overturn & confusion. It would be as much as a mans life is worth to touch a stamp if it was in his power to come at them.
The only post of safety is a private station
I shall inclose a rough draft of past proceedings because being from home I cannot have it transcribed
I am yor humble
Dec 21 I have resigned my office of Judge of Probate to prevent a demand of proceeding in a way in wh. I am not yet convinced the necessity of aff will jus- tify, the governor refuses to accept my Resignation, some expedient is projecting I had an intimation of a design to compel me from particular prsons I mean to compel me to proceed without stamps." (Mass. Archives, XXV. 22.)
'The following is from the Council Records under date of December 21, 1765 : -
"The Honble Thomas Hutchinson Esq! Judge of Probate for the County of Suffolk, having made a motion to His Excellency in Council, that for some pecu- liar reasons he had mentioned, for leave to resign the Office of Judge of Probale absolutely or for a limited time, as should be judged best, and it being thereupon moved to the Council he might be permitted to make a Deputation to some per- son to act in the Office for a term not exceeding a year.
The said Motion was approved of, & advised to by the Board, provided that such Deputy shall be approved of at the next General Council appointed to be held on Wednesday the 1st day of Jannary next." (Council Records, XVI. 78.)
The Boston News Letter of December 26, 1765, says : -
" We hear that on Saturday last his Honour the Lieutenant Governor desired Leave from his Excellency the Governor, in Council, to resign the Office of Judge of Probate for the County of Suffolk, either absolutely or for a limited Time."
At a meeting of the Council held January 1, 1766, final action was taken :
" The Governor and Council on the 21st day of December last having on the Motion of the Honorable Thomas Hutchinson Esq! Judge of l'robate of Wills &c for the County of Suffolk, allowed the said Judge to make a Deputation to a person to act in the said Office for a term not exceeding one year, provided such Deputy should be approved of at the General Council appointed to be held as ou this day. And the said Judge being now present in Council and desiring that instead of his making a Deputation as aforesaid, His Excellency would with the
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On the completion of the Jail, the Court turned its attention to the subject of a new Court House, 1and on May 4, 1768,
"Order'd that the Brick Building Erected a few years since on the Land belonging to the County near the Goal in Boston, for an Office for the Court of Probate, be taken down, for the better Accommoda- tion & Convenience of A New Court house - .
Order'd that a New Courthouse within the Town of Boston, for the Several Courts of Justice to Sit in, be Erected . . . on the Lands belonging to the County in Queen Street in Boston (on part whereof the old stone Gaol lately stood) . . . that on the lower Floor of said Building, sd Committee Assign & Sett off such parts of it, for the Probate Office, for the Register of Deeds, & for the Clerks of the
Advice of the Council appoint some person for the term aforesaid. His Excel- lency did thereupon nominate Foster Hutchinson Esq! to be special JJudge of the Probate of Wills &c for the County of Suffolk during the absence of the said Judge, and for a term not exceeding a year. To which Appointment, as afore- said, the Council did Advise and Consent." (Council Records, XVI. 81.)
Judge Hutchinson, under date of January 2, 1766, thus refers to this appoint- ment : -
" . I have held a place of about 60€ a year for a dozen years past Judge of Prob. for this county. The town of Boston alone at their meetings insisted that I should proceed without stamps & prayed the gov & council to direct me with the courts of common law so to do. I was determined not to comply but at a loss how to secure my self. In this state two of my friends who have always been watchful for my safety came to me and assured me further violence was just at hand & they could not say to what length it would be carried, unless I complied, left the Prov. or resigned my post & they were not sure the latter would be satisfactory. I pitched upon that however upon mentioning it to the gov. he thought he could not appoint a successor without a stamp & proposed my making a deputy I did not like this & upon further considering the act it was agreed a person might be appointed in my stead for a term not exceeding 12 months. I made my proposed voye to Engld the principal reason for my resign- ing & no great exception has been taken." (Mass. Archives, XXVI. 103.)
The Boston News Letter of January 2, 1766, makes this announcement : -
" We hear that FOSTER HUTCHINSON, Esq ; is appointed Special Judge of Probate for the County of Suffolk, during the Absence of His Honour the Lieutenant-Governour, not exceeding the Term of Twelve Months."
When the Stamp Act went into operation, the people generally refused to buy or use stamps, business was paralyzed, and the provincial conrts were closed. This sullen determination had at last its effect, and the Freeholders and others, assembled in Town Meeting December 26, 1765 (Boston Town Records, IV. 671), were assured " that the Courts of Probate within the Province would be opened ; that the Sheriff of the County of Suffolk had served and was ready to serve all Writts brought to him, and that the Court of Common Pleas for said County next in course to sit, would meet & proceed to Business." At an adjourned Town Meeting held January 16, 1766, it was announced that " the Inferior Court of Common Pleas for the County together with the Court of Probate is now open and Business going on as usual." Two months later, the Act was repealed.
1 Minute Book of the Court of General Sessions of the Peace, IV.
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Court of General Sessions of the peace, & Court of Comon pleas, as they shall Judge to be necessary & convenient for their respective offices."
This Court House, which is described as " an handsome Brick Building," was finished early in the following year, the first session of the Court of General Sessions being held in it April 18, 1769.
The Probate Records were however already installed there, as appears from the following notice in the Massachusetts Gazette of March 9, 1769: -
" The Probate Office for the County of Suffolk, is now kept in the new Court House, Boston."
But not long after its establishment there, Thomas Hutchin- son -to whose efforts the erection of this "handsome Brick Building " was so largely due - who had been Judge of Pro- bate for the County of Suffolk since April 3, 1752, except during the Stamp Act troubles, resigned and was succeeded August 3, 1769, by his brother Foster Hutchinson, the last Judge of Probate to hold that office under the appointment of a Royal Governor.
Foster Hutchinson, the new Judge, was likewise a Loyalist. During the siege of Boston the Records and Files of the Pro- bate Court were kept in the new Court House in Queen Street, in the care and custody of John Cotton, the Loyalist Register of Probate.1 After his death Judge Hutchinson took them
1 See ante, p. 80.
Thomas Cushing, the Revolutionist Judge of Probate (see ante, p. 79), held a Probate Court during the siege outside the lines, as appears from the following notice :
"County of Suffolk, January 22 1776
PUBLIC NOTICE is hereby given, that it is intended a court for the Probate of Wills, &c. shall be held at Dedham, in the said county, at the public house kept by Mr Woodward, on the first Monday of February next, and if that day should not be sufficient, on the day following and the like in each of the following months, until public notice is given to the contrary." (The Boston Gazette [printed at Watertown] Monday, January 29, 1776.)
After the evacuation of Boston the Probate Court was again held in the Court House in Queen Street.
" The Public are hereby notified that a Court of Probate will be held at the Probate Office at Boston, on every second and fourth Monday in this and the ensuing Months, until further Notice." (The Boston Gazette, printed at Water- town, June 17, 1776.)
" Deceraber 2, 1776
ALL concerned, are hereby Notified, That the Courts of Probate for the County of Suffolk, will, for the future, be held at the Probate-Office in Boston, on
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into his own custody, and on the evacuation of Boston by the Royal forces carried them with him to Halifax.
After the siege, when the inhabitants had begun to resume their usual occupations and had returned to their ordinary ways of life, the loss of these records began to be severely felt, and many difficulties arose in the settlement of estates of deceased persons.1
Fridays at Ten o' Clock in the Forenoon." (The Boston Gazette, printed at Boston, December 16, 1776.)
The Boston Gazette of Monday, March 12, 1781, contains the following notice : -
" BOSTON, March 10, 1781
The Judge of Probate for the County of Suffolk, agreeable to a Resolve of the General Court, passed the 13th of November 1750, informs the County, that he shall hold his Court of Probate in the Town of Medfield, on the First Tuesday of next April, June, August, October and December : And at the House of Capt. Arnold, in the Town of Weymouth, on the First Tuesday of next May, July, September and November : And at the P'robate Office in the Town of Boston, every Tuesday excepting the First of each Month.'
The County of Norfolk was set off from the County of Suffolk March 26. 1793. Since that time the Probate Courts for the County of Suffolk have been held in Boston.
The county of Suffolk now consists of the city of Boston, the city of Chelsea, and the towns of Revere and Winthrop.
1 In some instances it became absolutely necessary, even in the midst of the Revolutionary War, to obtain from Judge Hutchinson copies of certain of the papers and records then in his hands at Halifax. He seems to have offered no objection to this proceeding, and he continued from time to time during the whole of the war to make and attest such copies, claiming to the very last to be "Judge of Probate for the County of Suffolk in his Majestys Province of Massa- chusetts Bay."
In cases where attested copies were for any reason not obtained, resort was had to ot' r expedients.
In the case of William Whitwell. of Boston, merchant, deceased ( No. 15.787). whose will dated January 8, 1774, had been probated April 14, 1775, the General Court, April 26, 1776, passed the following Resolve : -
" Whereas the Records and Papers belonging to the Probate-Office in the County of Suffolk, cannot be found ; and it is apprehended the same were carried off by the Enemies when they fled from Boston, and the original Will referred to in the within Petition [of William Whitwell] cannot be found : Therefore, Re- solved, That the Hon. the Judge of Probate for the County of Suffolk be, and he hereby is fully authorized and impowered to grant out Letters of Administration on the Estate of the said William Whitwell, deceased, to the Petitioner, he go ing Security as the Law requires for the faithful Discharge of that Trust, and that the said Judge proceed in the Settlement of said Estate, in the same Man- ner as in the settling of Intestate Estates, unless the Heirs shall otherwise agree, or the original Will shall hereafter be found." (Journal of the House of Repre- sentatives, 187.)
An administrator was accordingly appointed by the Revolutionist Judge of Probate and the estate was settled as if it had been an intestate estate.
In the case of Joseph Crosby, late of Braintree, Esq., deceased (No. 14,400),
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The Massachusetts Archives contain the following : -
" STATE OF MASSACHUSETTS BAY Council Chamber Decr 29: 1777
Whereas many Difficulties have arisen to this State for want of the Papers belonging to the Judge of Probate's Office which were con- whose will dated January 26, 1769, had been probated March 17, 1760, the General Court appointed a committee, February 24, 1778, on the petition of Ann Crosby et al., setting forth that the last will and testament with a codicil of said Joseph, together with the record of the same was " carried off by Foster Hutch- inson Esq. late judge of probate for the County of Suffolk, when he fled with the British troops from Boston in the Year 1776; & that no attested copy thereof is left in the hands of any person within this State; & therefore praying that an unattested Copy of the same, to this court exhibited, might be authenticated & made valid in law ; which copy being made to appear to this court to be a true & correct one," etc. etc. This committee was instructed to consider the petition, to hear the parties, and to report thereon. (Mass. Archives, CCXVII. 199 et seq.)
In the case of Robert Ford, late of Boston, mariner, deceased (No. 14.193). whose will dated November 29, 1765, had been probated February 26, 1708, " as the original will & Probate Records are Carried off to Halifax & Cannot be Pro- cured," the General Court on petition of William Winter, passed a Resolve Octo- ber 6, 1779, confirming a copy of said will as the last will of said Robert Ford and authorizing the Judge of Probate to grant administration with the will all- nexed, " the Executors named in said Will being Dead & the Estate unsettled."
This copy bore the following attestation : "The above & foregoing are true copies of the Will of Robt Ford late of Boston Mariner dec'd and also of the Inventory of the said dec'ds Estate extracted from the Records of the Court of Probate for the County of Suffolk, in his Majesty's Province of Massachusetts Bay
Attest HALIFAX 14th Sept 1779
FOSTER HUTCHINSON Judge of Probt for sd County " (Mass. Archives, CCXXIV. 332 )
In the case of Thomas Child, late of Boston, distiller. deceased, intestate (No. 9,937), letters of administration were issued January 30, 1752. and a parti- tion of his real estate was made March 22, 1754. The copy of this partition was thus certified : -
" NOVA SCOTIA
The Subscriber Judge of Probate of Wills &c for the County of Suffolk in his Majestys Province of Massachusetts Bay certifys that the Division or Partition of the Estate of Thomas Child deceas'd contain'd in the six foregoing Pages is a true & faithfull Extract from the Probate Register of the aforesaid County of Suffolk
FOSTER HUTCHINSON.
HALIFAX 15th June 1780 " (Mass. Archives, CCXXXIV. 495-501.)
In the case of Robert Jenkins, late of Boston, merchant, deceased (No. 15.625). whose will dated November 26, 1773, had been probated December 10, 1773. the original will being in the possession of Foster Hutchinson, the General Court, on petition of John Jenkins, the son of said testator, passed a Resolve July 1, 1752. directing the Judge of Probate to allow and approve a copy of said will which was established as the last will and testament of said Robert Jenkins (Mass. Archives, CCXXXVI. 132-186; Supplement to Acts and Resolves of Mass . I. 123). Letters of administration with the will annexed on his estate were issued April 18, 1782, to John Jenkins, of Providence, Rhode Island, merchant.
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veyed from Boston to Halifax by Foster Hutchinson Esq late Judge of Probate for the County of Suffolk
Ordered - That the Honble Thomas Cushing Esq. be and he hereby is desired to write a Letter to Foster Hutchinson Esq. representing the Inconveniences this County labours under for want of said Papers and to desire him to deliver them to John Brown Comander of the Cartel Brig: Favourite addressed to the Care of the said Tho! Cushing Esq Judge of Probate for said County in Order that they may be lodged in the Probate Office in Boston for the Benefit use and Relief of the Poor Widows & Orphans to whom they more immediately relate -
Read & Accepted
JNº AVERY D' Secy." 1
But if such a letter were written it proved of no avail, for long after the war had been brought to its close, the General Court, February 13, 1784, passed the following Resolve : 2-
" Resolve requesting the Governor to take measures for recovery of Records of Probate Office, Suffolk: County said to be in possession of Foster Hutchinson.
Resolved, That the Governor of this Commonwealth, be requested to take such Measures for the Speedy Recovery of the Records of the Probate Office, of the County of Suffolk, said to be in the Possession of Foster Hutchinson Esq, of Hulifa.c, as he may judge necessary."
In compliance with this Resolve, Governor Hancock secured the services of Benjamin Kent.3 a member of the Suffolk Bar. who proceeded to Halifax on this most important mission.
1 Mass. Archives, CLXVIII. 118.
2 Acts and Resolves of Mass., Chap. 54, 1782-3.
3 Benjamin Kent, son of Joseph Kent, of Charlestown, was baptized June 13, 1708, at the First Church, Cambridge. He was graduated at Harvard College in the class of 1727. Among his classmates was Governor Hutchinson. He was ordained in 1783 a minister at Marlborough, but doubts arising as to his ortho. doxy, a council convened in 1735 found him unsound in the faith. He afterward removed to Boston, studied law and became a barrister, noted for his wit and eccentricity. He married in Chelsea, November 6, 1740, Elizabeth Watts. She was the daughter of Samuel Watts, of Chelsea, and was baptized there Septem - ber 16, 1722.
Under date of 1758, John Adams, then a young lawyer just entering upon the practice of the law in Boston, says : -
" Rode to Boston . . . went into the court house and sat down by Mr. Paine, at the lawyers' table. I felt shy, under awe and concern ; for Mr. Gridley, Mr. Pratt, Mr. Otis, Mr. Kent, and Mr. Thacher, were all present, and looked sont." And at a later date : -
"Kent is for fun, drollery, humor, flouts, jeers, contempt. He has an irreg-
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The following letter 1 written by him to Governor Hancock tells of its success : -
ular, immethodical head, but his thoughts are often good, and his expressions happy."
At the meeting of the bar at the Bunch of Grapes Tavern January 3, 1770, Benjamin Kent presided, lie being the eldest barrister-at-law then present.
He took an active part in the affairs of the town, served on many important committees, and was chosen Moderator of various town meetings. His political opinions seem to have occasioned some discussion.
He wrote from Boston. April 24, 1776, to John Adams, then in Philadelphia, complaining of the hesitancy and delay of the Continental Congress : " What in the name of Common Sense are you Gentlemen of the Continental Congress about ?" " the present time to make a final Declaration of Independence is the best." In his reply Mr. Adams said, " You cannot make thirteen clocks strike precisely alike at the same second."
He was appointed, December 4, 1776, one of the committee to petition the General Court in relation to the quota of the Town of Boston of men " this State is to raise, for the Continental Army," and, March 14, 1777, one of the committee concerning the " persons resorting to, or residing in the Town, who are justly suspected of being innimical to the American States."
Notwithstanding this, Sabine asserts that he was a Loyalist and says : "To the gentlemen who have suggested that the subject of this notice was not a Loyalist, I return my warm thanks for the endeavor to correct an inaccuracy in this work ; but the name was not inserted in the first edition withont thought, and is retained now, after due consideration of the circumstances to which my attention has since been kindly directed."
The Town, County, and State Records and the Record Book of the Suffolk Bar all show that he remained here during the Revolutionary War. He was present for the last time at the meeting of the bar held April 20, 1784, and it was not until May 7, 1784, as his own account shows, that he sailed for Halifax, where his youngest daughter Sarah, wife of Sampson Salter Blowers, a Boston Loyalist refugee, - afterward Chief Justice of the Supreme Court of Nova Scotia, - was then living.
In a deed dated April 15, 1785, he describes himself as " Benjamin Kent of Boston in New England Esquire now residing at Hallifax in Nova Scotia," and he recites that he intends shortly to make a visit to Boston and to leave in Halifax his wife Elizabeth and his daughters Elizabeth Kent and Sarah Blowers. He men- tions his " son Benjamin, if living." This deed was acknowledged April 30. 1785, in Boston. But his stay here was of short duration, and he returned to Halifax. The inscription on his tombstone in St. Paul's Cemetery, Halifax, shows that he died, October 22, 1788, in the eighty-first year of his age, his widow Elizabeth dying August 2, 1802, in the eiglitiethi year of her age.
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