PREROGATIVE COURTS
(also sometimes known as Probate Courts)

In England, jurisdiction over probate and other estate matters generally rested with the ecclesiastical courts. In the American colonies, however, this jurisdiction was usually granted instead to local courts or to the Governor. In the latter case, as with Chancery jurisdiction, governors increasingly did not exercise probate jurisdiction personally, but delegated much of it instead. In New York, as in several other American colonies, this eventually led to the de facto establishment of a specialized Prerogative Court, with jurisdiction over estate matters. It was this model that was followed in eighteenth-century Quebec: the governors' instructions from Murray forward gave them the jurisdiction of the Bishop of London over the probate of wills, and by 1765 a Prerogative Court had been set up in each of the two districts to exercise this jurisdiction.⁽¹¹²⁾

Establishment and Jurisdiction

As with the Courts of Vice-Admiralty and Chancery, the Prerogative Courts were never established by colonial legislation; rather, their establishment was implicit in the commissions that named their judges. As defined in these commissions, the Courts' jurisdiction extended to all administrative matters involving the settling of estates, such as the probate of wills, the issuing of letters of administration and (eventually) the establishment of tutorships and guardianships (tutelles et curatelles). Suits relating to estates, however, were heard in the regular civil courts, notably the Courts of Common Pleas.⁽¹¹³⁾ Given that for most of the period, estate law was a mixture of both English and French law, the Prerogative Courts exercised jurisdiction both under common law (for example, letters of administration) and civil law (for example, tutelles et curatelles). The Courts may have been implicitly abolished in 1794 when the Court of King's Bench was given power over tutelles et curatelles, though since the position of Clerk of the Prerogative Court continued through to the 1830s and beyond, the Court may have continued its shadowy existence as a function of the King's Bench.

Composition and Sessions

The Prerogative Courts were held by Prerogative Court judges (also known as Surrogates or Surrogate Judges) commissioned by the Governor. Between 1764 and 1775, commissions were granted both to Judges of the Common Pleas and to others. From 1777 to 1794, however, all Judges of the Common Pleas were ex officio commissioned as Prerogative Court judges, and the Courts became in essence part of the more general jurisdiction of the Courts of Common Pleas, though they nominally continued to maintain a separate institutional existence, with their own officers, seals, records and so on. The Courts seem to have had no fixed sessions but the Common Pleas judges generally conducted Prerogative Court business on Fridays.⁽¹¹⁴⁾

Revision

Though there were no formal provisions for appeal from the decisions of the Courts, from 1777 at least, some judgements of the Prerogative Courts seem to have been appealed to the Court of Common Pleas.⁽¹¹⁵⁾

Legislation

34 George III c.6 (1794)
Possibly implicitly abolishing the Courts.

Page content last updated 2008-05-28