Probate records of the Province of New Hampshire Vol. 1 1635-1717, Part 1

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0397527

PROBATE RECORDS

OF THE

PROVINCE OF

NEW HAMPSHIRE

VOL. 1 1635-1717

STATE PAPERS SERIES VOL. 31

ALBERT STILLMAN BATCHELLOR Editor of State Papers

OTIS GRANT HAMMOND EZRA SCOLLAY STEARNS Assistants

: LAKE CHY, UTAH 84150

CHALET TEMPLE - LICRARY

GENEALOGICAL SOCIETY OF UTAH 1548

CONCORD, N. H. RUMFORD PRINTING CO. 1907

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JOINT RESOLUTION relating to the preservation and publication of portions of the early state and provincial records and other state papers of New Hampshire.

Resolved by the Senate and House of Representatives in General Court convened:

That His Excellency the Governor be hereby authorized and empowered, with the advice and consent of the Council, to employ some suitable persou-and fix his compensation, to be paid out of any money in the treasury not otherwise appropriated-to collect, arrange, transcribe, and superintend the publication of such portions of the early state and provincial records and other state papers of New Hampshire as the Governor may deem proper; and that eight hundred copies of each volume of the same be printed by the state printer, and distributed as fol- lows: namely, one copy to each city and town in the state, one copy to such of the public libraries in the state as the Governor may designate, fifty copies to the New Hampshire Historical Society, and the remainder placed in the custody of the state librarian, who is hereby authorized to exchange the same for similar publications by other states.

Approved August, 4, 1881.

Albert S. Batchellor, Editor of State Papers:

You are hereby authorized to arrange, transcribe, and superintend the publi- cation of such abstracts of the early records of wills and probates of persons and estates relating to the provincial period of New Hampshire as are available, the material being so prepared as to avoid the transcription and publication of merely formal and immaterial parts of documents, and arranged in a chrono- logical order, beginning with the earliest accessible papers and records.

You will also cause such explanatory notes, citations, tables of contents, and indexes as you may deem useful to be prepared and made a part of this work.

This I deem proper to be done, and these directions are given in accordance with the authority vested in me as Governor by the provisions of the joint reso- lution relating to the preservation and publication of portions of the state and provincial records and other state papers of New Hampshire approved August 4, 1881.

Given under my hand at Concord this 2nd day of January, 1897.

CHARLES A. BUSIEL, Governor.

PREFACE

It is common knowledge that until 1771 the province of New Hampshire had not been divided into counties. By the act passed April 29, 1769 (Laws, 1771 ed., p. 204), the original five counties of Rockingham, Strafford, Hillsborough, Cheshire, and Grafton were created. The county act took effect March 19, 1771. Rock- ingham, Hillsborough, and Cheshire were organized thereby, but the organization of Strafford and Grafton was not to take place un- til such time as the Governor and Council might deem it advisable. Meanwhile all civil affairs of the territory assigned to these two counties were administered by the officers of Rockingham county. This status was terminated in 1773, when Gov. John Wentworth caused Strafford and Grafton to be organized. All the probate records of the province that had been preserved from the colonial period continued in the custody of the probate office at Portsmouth. With all the other records and archives of the province they were removed to Exeter July 4 and 6, 1775, for greater safety, in accord- ance with a vote of the Provincial Congress passed June 28, 1775, and there remained, until by the act of March 11, 1897 (Laws of 1897, p. 47), and the act of March 10, 1899 (Laws of 1899, p. 299), they were removed to Concord and placed in the official cus- tody of the Secretary of State. The great importance of the pro- bate files and records has been recognized more clearly, and the demand for measures rendering them available for public examina- tion has become more manifest and emphatic in recent years. It was in response to these influences that the records were restored to the state archives, where they might be arranged, indexed, and otherwise opened by some practical method to a reasonable state of access and utility. Inasmuch as prior to 1771 the exercise of those governmental functions which are ordinarily regarded and treated

PREFACE

as county affairs was by officers of the central government, and over the entire province, it is unquestionable that the official records of affairs appertaining to that administration should now be regarded and treated as state archives.

The General Court was slow in giving practical effect to the true view of the subject, and the documents remained for a period of one hundred and twenty-five years in the custody of one of the five original counties. Under the act of March 10, 1899 (Laws of 1899, p. 299), and the act of March 21, 1901 (Laws of 1901, p. 645), these documents are being subjected to such methods of in- dexing and arrangement as will, in time, make an end of those conditions which have rendered their contents practically inacces- sible. It has been deemed advisable to present the probate records in printed form, constituting a series of volumes in the State Papers series.

The assembling of material for the present volume, the making of copies and abstracts, and the arrangement and indexing have been committed entirely to the editor's assistants, Mr. Otis G. Hammond, and Mr. Ezra S. Stearns. The search for material for the work has extended far beyond the state archives. Between the period of 1623, the date of the first settlement of the colony at Little Harbor, and 1641, when the first union of Massachusetts Bay and New Hampshire was consummated, no material for the work has been recovered except Capt. John Mason's will, and it is probable that none was recorded. . Careful investigation has been extended to the records of the neighboring counties of Maine and Massachusetts, to the records and files of England, and to other collections of ancient documents in which it might be ex- pected that anything relating to wills and probates in New Hamp- shire might be discovered. This method has been pursued with the utmost industry and discrimination that was practicable in such an undertaking for the entire period covered by the documents presented in this volume.

The probate records which have come into the custody of the state are in conformity with the requirements and proceedings of

vii

PREFACE

a court such as was established from 1693 to 1775. These records are all in our archives, except the scattering estates of New Hampshire people that were extracted from the registries of old Norfolk, Essex, Suffolk, and Middlesex counties in Massa- chusetts, and York county in Maine. A few wills were probated and estates settled in all these counties, without apparent reason except that of personal convenience. Some of the wills in Suf- folk county records are those of mariners who sailed from Boston and did not return. Their wills, made and left in Boston before sailing, were probated there. The same may be true of some in old Norfolk and Essex records, which are located in Salem, Mass.

Every document in the book, so far as possible, is taken from the original in the files now in the office of the Secretary of State. In such cases no citation to the original is made, as the present ar- rangement of these papers is not considered permanent. But in all cases where, in default of the original, the recorded copy has been used, or where the document has been derived from a source outside the state, or from a source within the state but out- side the official files of originals, citations have been carefully made.

All wills are printed in full, with the exception, only, of that part of the preamble which states no material fact. Such omissions are indicated by stars, thus, Each will is fol- lowed in chronological order by abstracts of all formal documents relating to the settlement of the estate, and by complete copies of such documents as could not wisely, or without injury to the nar- rative of facts therein, be reduced. All abstracts will be found enclosed in brackets, and it has been the effort of the editors that in the process of reduction only formal or legal verbiage should be eliminated, and all matters of record which would be of interest or value to the lawyer, the historian, or the genealogist retained. It has not been deemed wise to publish inventories in detail.

This volume, in which the material is represented in its chrono- logical order from the beginning, necessarily covers several periods

viii

PREFACE

in which the results are unsatisfactory on account of the loss and dispersion of the records, if records were made, and at other peri- ods for the reason that in all probability no records were made or files preserved. The succeeding volumes which are in contempla- tion will present the records and documents of that part of the colo- nial period between 1718 and 1771. As the material presented in the first volume will have special value on account of its antiquity, that which is to follow will be attractive and useful on account of its unbroken continuity and approximate completeness.

ALBERT S. BATCHELLOR, Editor of State Papers.

HISTORICAL NOTE

From 1623 to 1641 there was no organization of any colonial government in New Hampshire, although John Mason, the landed proprietor, had authority by his patent purporting to empower him to erect a government. The proprietor died in 1635. If he organ- ized any colonial, provincial, or proprietary government under his patent, no records of it have survived. It is altogether probable that nothing of the kind occurred. Indeed, at a later period it was declared that the powers of government contained in Mason's patent and others contemporary with it were invalid in respect to the grant of powers of government. The reason assigned for this decision was that, while the Council of Plymouth had powers of government in the territory of its New England jurisdiction, it was not competent to delegate those powers. (See opinion of the Chief Justices, I N. H. Prov. Papers, 336; I N. H. Prov. Laws, Introduction, xxviii.)

From 1635 to 1641 the Masonian interests languished, largely because there was no efficient or disinterested representative of them in the colony. Two independent local governments had de- veloped in the Pascataqua region, the lower one, Strawberry Bank, being what might be termed the Portsmouth group of settlements, and the upper one, constituted of what were afterwards known as the Northam or Dover plantations. Exeter followed as an inde- pendent plantation in 1638, while Hampton was planted by Massa- chusetts as one of its own townships in 1635, on territory over which it claimed jurisdiction. (See notes on the independent town gov- ernments established at Portsmouth and Dover, and their constitu- tions, I N. H. Prov. Laws, 744.)

As one of the results of the union of Massachusetts Bay and New Hampshire, begun in the fall of 1641 by the entrance into it

HISTORICAL NOTE

of that part of New Hampshire represented by the two Pascataqua towns and the Pascataqua proprietors, and consummated as to the entire territory of New Hampshire by the accession of the Exeter colony in 1643, one system of laws, subject to the reservations in behalf of New Hampshire embodied in the articles of union (I N. H. Prov. Laws, xxx), became operative over the towns and people of the entire territory of Massachusetts Bay and New Hampshire. The theory that there was no uniform system of laws or usages governing the transmission of property by will, and the orderly descent and distribution of estates of deceased persons, in the New Hampshire settlements in the first period (that be- tween 1623 and 1641 being taken tentatively as the first period) is supported by a recital of the previous conditions, which is given as a preamble to a certain act relating to the settlement of estates in the laws of Massachusetts Bay (Col. Laws of Mass., 1660 ed., reprint, p. 200), which, omitting archaic forms and expressions is as follows :- " Whereas it is found by experience that some men, dying, having made their wills for the disposing of their estates, that the said wills are concealed and not proved and recorded ; and some others dying intestate, no administration is sought for nor granted in any legal way, and yet the wives, children, kindred, or some friends of the deceased, or some others, do enter upon the lands and possess themselves of the goods of the said deceased, and the same are many times sold or wasted before the creditors to whom the deceased was indebted know of whom to demand, or how to recover their just debts ; for prevention of such unjust and fraudulent dealings." A remedial act follows this pre- amble. The declaration was made at a point of time so early in the period of the union that presumably it is descriptive of what was the subject of general knowledge in a considerable part, if not all, of the previous history of this jurisdiction. It may also be regarded as a partial explanation of the paucity of probate records in the first colonial period. The act which follows the preamble above quoted bears date not later than 1649, only eight years sub-

HISTORICAL NOTE

sequent to the beginning of the union of the two colonies, and only six years after the accession of Exeter, which completed the extension of the union over New Hampshire in its entirety. The body of the act is as follows :

" It is ordered by this court and the authority thereof that if any executor nominated in any will, and knowing thereof, shall not, at the next court of the county which shall be above thirty days after the decease of the party, make probate of any will of any deceased party, or shall not cause the same to be recorded by the recorder or clerk of that county court where the deceased party last dwelt, or if any person whatsoever shall not within the same time take administration of all such goods as he hath or shall enter upon of any party deceased, or if any person or persons shall alienate or embezzle any lands or goods before they have proved and recorded the will of the deceased, or taken administration and brought in a true inventory of all the known lands, goods, and debts of the de- ceased, every such person so administering or executing shall be liable to be sued, and shall be bound to pay all such debts, respect- ively, as the deceased party owed, whether the estate of the deceased were sufficient for the same or not, and shall also forfeit to the coun- try so many sums of five pounds as shall be months betwixt the next court of that county, after the death of the party as aforesaid, and the proving of such will and recording it, or the taking of such administration. And if any person shall renounce his executor- ship, or that none of the friends or kindred of the deceased party that shall die intestate shall seek for administration of such per- son's estate, then the clerk of the writs of such town where any such person shall die shall, within one month after his decease, give notice to the court of that county to which such town doth belong of such renouncing of executorship or not seeking of ad- ministration, that so the court may take such order therein as they shall think meet, who shall also allow such clerk due recompense for his pains, and if any such clerk shall fail herein, he shall for- feit forty shillings to the treasury for every month's default. (1649.)

xii

HISTORICAL NOTE

" 2. And because many merchants, seamen, and other strangers resorting hither oftentimes dying and leaving their estates undis- posed of, and very difficult to be preserved in the interim from one county court to another, it is therefore ordered that it shall and may be lawful for any two magistrates, with the recorder or clerk of the county court, meeting together, to allow of any will of any deceased party to the executors or other persons in the will men- tioned, so as the will be testified on the oath of two or more wit- nesses, and also to grant administration to the estate of any person dying intestate within the said county to the next of kin, or to such as shall be able to secure the same for the next of kin, and the recorder or clerk of court shall inform the rest of the magistrates of the county at the next county court of such will proved or administration granted, and shall record the same. (1652.)

" 3. And it is ordered that, when the husband or parents die in- testate, the county court of that jurisdiction where the party had his last residence shall have power to assign to the widow such a part of his estate as they shall judge just and equal, as also to divide and assign to the children or other heirs their several parts and portions out of the said estate ; provided the eldest son shall have a double portion, and where there are no sons the daughters shall inherit as co-partners, unless the court, upon just cause alleged, shall otherwise determine.": (1641-49.)

The Body of Liberties of 1641 was adopted in December, and subsequent to the union of Massachusetts Bay and New Hamp- shire. Article II of that body of laws is as follows : " All per- sons which are of the age of 21 years and of right understanding and memories, whether excommunicate or condemned, shall have power and liberty to make their wills and testaments and other lawful alienations of their lands and estates." Art. 79, 81, 82. Col. Laws of Mass., 1660 ed., reprint, p. 51 ; I N. H. Prov. Laws, 753, 761.

These are among the important landmarks in the establishment of a new system of probate law in the united colonies of Massa- chusetts Bay and New Hampshire. The more important features

xiii

HISTORICAL NOTE

of the development of this law are presented in the contemporary publications and compilations of 1660 and 1672. (Col. Laws Mass. Bay, 1672 ed., reprint, 1, 157 ; 1660 ed., reprint, 119, 200. ) New Hampshire became a part of Norfolk county. In the period of the union, therefore, the probate records were made and kept at the shire town or towns, as they were designated. Governor Washburn, in his Judicial History of Massachusetts, p. 32, says, " They (county courts) had also probate jurisdiction, and as such proved wills, granted administration, and the like. Appeals in such cases lying from their decisions to the court of assistants. (White's Prob. 9.) This exercise of probate jurisdiction contin- ued as long as the old charter was in force. The clerks of the courts were, ex officio, recorders, and in the intervals of the court the recorder and two of the magistrates were authorized to grant letters of administration and probate of wills. (Ib.)"

It appears by the same authority (p. 30) that " It (court of as- sistants) had also appellate jurisdiction in matters of probate which had been determined in the county courts." The territory separ- ated from this union by the decree of Charles II, contained in the Cutt commission of 1679. was subject to no other system of colonial law in the period beginning 1641 and ending in Oct., 1682, than the laws which were known and published in the Laws of Massachusetts Bay, with the exception or modification of the organic law promulgated in the Cutt commission, and the local law commonly known as the Cutt code. It is significant on the ques- tion of the continuing validity and operative force in New Hamp- shire of the laws of the two colonies as united under one govern- ment in the period above mentioned that article 14 of the Cutt laws provided that " For directions to the courts, judges, and all other officers it is ordered that those laws by which we have formerly been directed and governed shall be a rule to us in all judicial proceedings, so far as they will suit with our constitutions and be not repugnant to the laws of England, until such acts and ordi- nances as have been or shall be made by this assembly and

xiv

HISTORICAL NOTE

approved by the honorable President and Council may be drawn . up and legally published." (I N. H. Prov. Laws, 28.)

No provisions were enacted in the Cutt laws relative to wills and probates, or the descent, settlement, and distribution of estates of deceased persons. It must be presumed, therefore, that the laws, usages, and forms which related to these affairs in the time of the union remained unchanged, at least to the time of the inaugura- tion of the Cranfield government in Oct., 1682. In the commis- sion of Charles II to President Cutt, after the part constituting the President and Council a court with a very ample jurisdiction, the following appears in the text, "So always that the forms of pro- ceeding in such cases and the judgment thereupon to be given be as consonant and agreeable to the laws and statutes of this our realm of England as the present state and condition of our subjects in- habiting within the limits aforesaid, and the circumstances of the place, will admit." (I N. H. Prov. Laws, 4.)

The temper of the people of New Hampshire at this time towards such directions as those here emanating from the crown may best be inferred from a declaration in the copy of the Cutt laws which was retained in the province, the clause to be quoted not appearing in the copy that was sent home. It appears in the preamble of the laws, and is as follows, " It is therefore ordered and enacted by this General Assembly and the authority thereof that no act, imposition, law, or ordinance be made or imposed upon us but such as shall be made by the said Assembly and approved by the President and Council from time to time." (I N. H. Prov. Papers, 382.) If there were any doubt as to the determination of the con- troling majority and the government of the province of New Hampshire to adhere to the colonial laws of the time of the union, modified only by their own voluntary enactments, in preference to the laws of England, wherever one might conflict with the other, such a doubt would seem to be dissipated by the testimony of Rich- ard Chamberlain, for a time secretary of the province, in a letter to Mr. Blaithwaite, secretary to the Lords Committee of Trade and Plantations, of date May 14, 1681. Mr. Chamberlain

HISTORICAL NOTE

says : " I first took exception to the whole system (Cutt laws) in general being collected mostly out of the Massachusetts laws, and surely it could not well stand with the mind and pleasure of His Majesty that we here should cast off obedience to their (the Mas- sachusetts) jurisdiction and yet voluntarily submit to and yoke ourselves so inseparably to their laws." (I N. H. Prov. Laws, 785.) The 1679 commission to John Cutt and his Council for the government of New Hampshire in terms constituted the President and Council the supreme court, with a very comprehensive juris- diction. They evidently construed their powers to include the ad- ministration of the probate law. It appears by the records that the President and Council transacted the probate business, the councilors sometimes acting individually. Such business seems to have been disposed of in court also in 1681. The records and files for this period, however, are meagre. Under the conditions then existing, and the attitude of the representatives of the people towards the laws at the time of the union, it would be expected that probate procedure and probate decrees would be found con- formed to that system.

The termination of the first union occurred in the winter of 1679-80. Reasons have already been adduced indicating very conclusively that no change was desired or attempted in the pro- bate law in the period under the commission of President Cutt. It is hardly open to question that, with regard to probate law, usages, and forms "The former laws we [they] were ruled by [were] to stand till others [were] made." (Cutt laws, art. 14.) It does not appear that any other enactment was made under his government affecting the previously existing system of probate law.

The next period is that included in the administration under the commission to Lieut .- Gov. Edward Cranfield which subsisted be- tween Oct. 4, 1682, and May 25, 1686. The Cranfield commission in terms abrogated the Cutt commission. The Cranfield instruc- tions, by article 26, in terms repealed the Cutt laws. It is not known that this document in its complete form has ever been in the New Hampshire archives since 1684. The one that appears to have taken

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HISTORICAL NOTE

its place at that time was very much abbreviated, as it contained: only six articles besides the preamble, while the full text, it now appears, contains thirty-nine articles and a preamble. The draft which was probably put on file about 1684 in the province records. omits article 26, by which the Cutt laws were repealed by the- King's edict. The copy containing the full text has not been printed on this side of the Atlantic. The abbreviated copy of 1694 is the one that has appeared in the state publications, and has been subject to reference in the archives. The full text was dis- covered and procured from the English archives in April, 1906, by this department. (Note to the case of Hutchinson v. Man -. chester Street Railway, 73 N. H., 279.)

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Probate records of the Province of New Hampshire Vol. 1 1635-1717, Part 1

Author: None Publication date: Publisher: Number of Pages: 930

Author: None
Publication date:
Publisher:
Number of Pages: 930