Which wills do we hold?

The jurisdiction of the Durham diocesan probate court determined which wills and other records remained in its registry. These probate records are held by the Archives and Special Collections section of Durham University Library. They include all the surviving wills proved by the Church of England courts within the old diocese of Durham up until the establishment of the Civil Probate Registries on 11 January 1858. Then, as now, Durham diocese was within the ecclesiastical province of York.

Church courts were responsible for the process of confirming - called 'proving' - wills, and the Durham diocesan court's geographic jurisdiction then included the historic counties of Durham and Northumberland. In addition, certain parishes do not belong to the diocese in which they are geographically located but to another diocese (called 'detached' parts of that diocese), while other parishes fell outside the probate jurisdiction of the diocese to which they belonged (called 'peculiars'), and the wills of the inhabitants of these areas were not proved in the ecclesiastical court of their own diocese. Secular manorial and peculiar probate jurisdictions are not known in County Durham or Northumberland. For probate purposes, the peculiars and detached parishes are as follows ('DPR' means the Durham Probate Records, records at York are in the Borthwick Institute):

Area Parishes Status pre-1858) Location of probate records
Alston, Cumberland Alston detached part of Durham diocese DPR
Crayke, Yorkshire Crayke detached part of Durham diocese (until 1837) DPR before 1837, then York
Hexham and Hexhamshire, Northumberland Allendale, Allenheads or Allendale St Peter, Bingfield St Mary, Carrshields (or High West Allen), Hexham, Ninebanks (or Low West Allen), St John Lee, St Oswald in Lee and Whitley chapel detached part of York diocese (until 1837) York before 1837, then DPR
Thockrington, Northumberland Thockrington peculiar of a prebendary (canon) of York cathedral (until c.1846) York before 1846, then DPR
Allertonshire, Yorkshire (bishop's peculiar) Birkby, Cowesby, Hutton Bonville, Leake, Nether Silton, North Otterington, Osmotherley and Thornton-le-Street peculiar of the bishop of Durham (until 1846) DPR before 1846, then York
Allertonshire, Yorkshire (dean and chapter's peculiar) Brompton, Deighton, High Worsall, Kirby Sigston, Northallerton and West Rounton peculiar of the dean and chapter of Durham cathedral (until 1846) DPR (separate series) before 1846, then York

In addition to the abode of the deceased person, the value and location of his estate could also determine in which church court a will might be proved. Most simply, if a person's estate fell entirely within the diocese of Durham, then the Durham courts held jurisdiction. Often, however, a person's property may have been distributed across more than one diocese or peculiar, in which case two variables determined which provincial (rather than diocesan) court held jurisdiction. First there was a lowest qualification of 5 estate value (10 within London), termed 'bona notabilia' or goods to be notified (to the Prerogative Court). A person dying with goods in more than one diocese but of less than 5 value should have had his will proved or administration granted in the bishop's court of the diocese where he was resident.

The second factor was whether the deceased's goods were located in dioceses all within one province's jurisdiction, or in dioceses located in both provinces. In cases where a person's estate was distributed across dioceses in both provinces then probate might have been granted either solely at the Prerogative Court of Canterbury, the senior court, or in both Prerogative Courts. Research of ecclesiastical probate jurisdictions has suggested that probates in both provincial Prerogative Courts was the correct form, however practice in probate matters was frequently variable, and searchers are advised to check the records of both Prerogative Courts. 1 Nevertheless, in the latter case a limited probate might be granted first either at Canterbury or at York, with a further limited probate for the other province often being granted by requisition, that is by letters of request commissioning the officers of the one court to act on behalf of the other. The second grant would approve the first grant of probate and would similarly empower the executor to act. Each grant would limit the grantee to administer only that property of the deceased that lay within the granting provincial authority's jurisdiction.

Occasionally particularly complex cases in law were referred from diocesan courts to provincial courts, where the legal staff were often better qualified. Additionally, from the early 19th century the Bank of England began to require testaments bequeathing government stock to be proved at the Prerogative Court of Canterbury, so increasing the number of wills proved in that court. If a will was proved at the Prerogative Courts of York or Canterbury then it will have been filed in the registry of that court, which archives are now held at the Borthwick Institute in York and the National Archives in London respectively.

A useful guide to probate records with maps of the English dioceses in 1835 and 1850, is available online at the Borthwick Institute website.

In contrast with some other dioceses, where local archidiaconal courts often proved the majority of wills, Durham diocese wills were invariably proved in the bishop's consistory court which sat in the cathedral church at Durham, or, for Allertonshire wills, in the peculiar court of the dean and chapter. This was perhaps a legacy of the centralised power of the Palatinate. The large extent of the diocese made travelling to Durham to prove a will a significant undertaking, but much business could be accomplished through clients employing proctors to act for them in the court and also through commissioned surrogates geographically distributed around the diocese and empowered at need to act in place of consistory court officials.

1 A Brief Treatise of Bona Notabilia, George Lawton (1825), Section IV: online resource.