What types of documents are there? Diocesan probate records
The process of proving a will, or being granted administration of a deceased
person's estate could generate a series of probate records. The most common
types of document are listed below.
- Will and Testament
- Technically two different instruments combined within one document, and usually together referred to as a will, and by which a testator disposes of his property among his relations, friends and creditors. A person dying without a will is termed 'intestate'. Wills were required to be legally proved as valid in an ecclesiastical court before the testator's wishes contained therein could be fulfilled by the executor, and the deceased's estate intermeddled with. A copy of the will was entered into a series of will registers (series DPRI/2) in the diocesan registry. The original will, or a further copy if the original needed to be retained by the executor, was also be retained in the registry (series DPRI/1).
- Nuncupative will
- A will made by word of mouth, and then written down later by the witnesses. Except under special circumstances, such wills have not been accepted as valid since 1837, and prior to that date required a higher standard of proof than wills signed and sealed by the testator in the normal way.
- An addition to the will, either adding to it or modifying some of its terms, and made after the publication of the will. A codicil might take the form of a single line subscription at the foot of a will, or a separate document. In distinction to last wills, multiple valid codicils can exist for the same testator.
- The inventory is a list of the deceased's personal goods and chattles, with each item valued. It will not include a list of real property, which fell outside the jurisdiction of the church court. Inventories were required to be entered by the executor or administrator in order that the interests of the deceased's creditors and next of kin were safeguarded, and to aid the court in making an accurate valuation of the personal estate. Inventories are usually filed with the original will (series DPRI/1), and are sometimes also copied into the will registers (series DPRI/2).
- Until the late 17th century probate accounts were required to be entered by the executor or administrator when the deceased's estate had been fully wound up, some twelve months after the granting of probate. Such documents are quite rare at Durham, and after the 1680s tend to be found only when the estate was in litigation. An account, once accepted by the court, marked the completion of the executor or administrator's duty, and their release from their bond. Accounts are usually found with original wills and inventories, but are rarely filed within the same year: the catalogue attempts to unite accounts with their other related probate records, but there may be some 'orphan' accounts that remain as yet unlinked.
- Will bond / Administration bond
- Bonds were required for a variety of reasons by the court. Most common were those entered by executors and administrators, termed will bonds and administration bonds, and which bound the bondsman and his sureties to perform their duties faithfully, or suffer the penalty of a sum usually twice the value of the deceased's estate (series DPRI/3). Such bonds might be cancelled once a probate account had been accepted, and the conditions of the bond performed. In the later period will bonds became required only where no executor was named in the will or where for some reason the persons authorised by the court to execute the will were not those named as executors in the will.
- Curation / Tuition bond
- Where minors were involved, the court was careful to ensure their education and maintenance until they came of age. Persons might be explicitly nominated as tutors or guardians in the will, or appointed later by the court. Having accepted the role, such persons would be required to enter a curation or tuition bond, which bound them to properly administer the estate for the sole use of the minors and in the meantime provide for them sufficient food, clothing and education. When a child came of age such bonds might be cancelled and a new grant of administration would be made, 'with the will annexed' if the deceased died testate, and a new bond entered.
- Bond to redeliver the original will
- Additionally, another type of bond was required when it became necessary to remove the original will out of the registry, perhaps to produce as evidence of title in a civil case, and which bond bound the bondsman to return the original or suffer a financial penalty.
- This is an instrument by which a person renounces their duty, either to execute a will or administer an intestate's estate or act as guardian. Quite often a person who was either explicitly named as executor in the will, or who held the right to administer by the proximity of their kinship to the deceased, wished to avoid this onerous duty. This might be due to a number of reasons, perhaps infirmity and indebtedness being the most common. In the former case the court was usually pragmatic, and could accept the nomination of another willing, suitable and qualified person. Where a person died in debt, the principal creditor could be nominated by the renouncing executor or administrator to act in their stead. Renunciations may be found filed with original wills and inventories (series DPRI/1) and with the bonds (series (DPRI/3).
- A commission was a document ordering and authorising a named person or persons to perform certain acts, as surrogate officers of the court. Such documents were often issued where a witness, executor or administrator did not travel to court to support the probation of the will and/or the granting of administration. The commission is frequently subscribed with a copy of the oath to be sworn, in English, and with a memorandum of its execution by the surrogate. Commissions are found filed with original wills and inventories (series DPRI/1) and also in a separate series of commissions, monitions and citations (DPRI/5), which latter series is not included within the probate catalogue.
- A citation is an order calling a person to appear in court. Citations are sometimes found filed with original wills and inventories (series DPRI/1) and also in a separate series of commissions, monitions and citations (DPRI/5), which latter series is not included within the NEI probate catalogue. Citations may be to an individual, or to a number of persons (a citation quorum nomina). In certain circumstances a citation will be addressed to an entire parish, calling any persons claiming kinship with a deceased person to come forward, and further indicating that failing any person better qualified, administration will be granted to a named individual (a citation with intimation).
- A monition is a warning notice ordering a person or persons to perform certain actions, and to attend the court. Monitions are found filed with original wills and inventories (series DPRI/1) and also in a separate series of commissions, monitions and citations (DPRI/5), which latter series is not included within the NEI probate catalogue.
- Certificate of oath
- A record of the swearing of the witnesses and the executor or administrator by a properly authorised officer or surrogate of the court. Sometimes the identities of those sworn are indicated only by the word 'jur' (juratus) or 'sworn' inserted above their names or after their signatures as they occur in the will.
- An affirmation is a formal and solemn declaration by a Quaker and, from 1695, was accepted by the court in place of an oath.
- An affidavit is a sworn statement, entered as proof, typically, in a probate context, of the testator's handwriting (i.e. the validity of the will), of the deponent's relationship to the deceased, or of the sureties' financial ability to meet the penalty of the bond should its conditions not be satisfied.
- Grant of probate / administration
- These, as described in the catalogue, are both sealed documents issued by the court, and memoranda subscribed or endorsed to the will or administration bond, recording the grant of probate or administration to a named individual or individuals, and thereby authorising them to intermeddle in the estate of the deceased. To the sealed grant of probate was usually annexed a copy of the original will. Each manifestation of such grants in fact records an act of the probate court, which acts are also recorded in a series of Probate Act Books (series DPRI/4).
- Letters of of administration with the will annexed
- A grant of probate to a person not explicitly named as the executor in the will. Such grants might be made where an executor had died or renounced.
- Letter of request
- Where the executor, administrator or witness were resident outside the diocese, the Durham court might submit a request to the ecclesiatical court within whose jurisdiction these persons were then living to act for the Durham court in the matter, administering oaths and executing a bond, and thereby granting probate or administration. Such grants, however, were still only valid for those goods of the deceased within Durham diocese. Typically, the corresponding ecclesiatical court would return to Durham the original letter of request, the executed bond and a certificate recording the various acts of this court.
- Evidence of litigation in the probate court is occasionally found within the Durham probate records - wills challenged, rights to administer contradicted, inventories and accounts called for or disputed, and so on. Such contentious cases are in the ecclesiastical courts termed causes, and could be protracted. Summary records of these can be followed in the probate act books (series DPRI/4), not included within the NEI probate catalogue. Individual documents generated in such litigation and found within the Durham probate catalogue can include: libels (containing the complaint); responses or personal answers of the defendant; allegations (containing those libels that have been denied); depositions; interrogatories; and definitive sentences: Church Court Records by Anne Tarver provides a good introduction to the process of ecclesiastical causes and the associated documents.
As well as holding the original records themselves, the diocesan probate
records also include registered copies of wills, as well as
a separate series of Probate Act books, which record the probate decisions
made in the consistory court in summary form. The original records series
and the registered copies series complement each other, and in some cases
copies exist in the registers of original wills that no longer exist. These
registers of copies also form part of the NEI project.
While wills were usually written in English in this period, court transactions
were recorded in Latin until 1733. However, except in the case of disputed
cases, such Latin process notes are very conventional, and soon mastered,
moreover the substance of such transactions will have been recorded in the
online catalogue. Depositions and affidavits were recorded in English after
about 1550. It also takes time to become familiar with the terminology of
church court testamentary business processes, and researchers are recommended
to read Richard Burn's much reprinted Ecclesiastical Law (1763), the second
volume of which contains a section on wills and testamentary business.