Colonial Williamsburg Digital Library

The Case of the Society for propogating the Gospell in
Foreign Parts

4 Mar. 1727. Francis Nicholson Esq.^r (called General Nicholson) by his Will of this
date executed in presence of 4 Witnesses Gives several small Legacys
And has the following Clauses in his Will

Item I devise & bequeath unto my Worthy & honoured Friend Kingsmill
Eyre Esq.^r his heirs & Ass.^r All my Lotts of Land Messuages & Tenem.^ts in
Virginia New England Pensilvania & elsewhere in America And all
other my Real Estate in America, Upon Trust to sell the same as
conveniently may be & for the best price that can be got for the same &
to pay the monys arising by such Sale & the whole Produce thereof after
a Deduccon of all necessary Charges to the Society for propogating the
Gospel in Foreign Parts, for the Use & benefitt & to bear the Charges of
the Passage of such persons as shall come from New England & receive
Episcopal Ordinacon here & shall go hence thither as Missionarys; in
such Sums & Proporcons as the s.^d Society shall think fitt.—

After payment & Subject to the Satisfaction of all my just debts General
Expences & my Legacys herein before bequeathed & the Charges which
my Executor shall necessarily be put unto by means of the Trust hereby
in him reposed I give all the rest & residue of my Psonal Estate to the
Society for Propogating the Gospell in Foreign Parts for the Assistance
& Incouragment of such Psons who as afs.^d shall come from New England
& receive Episcopal Ordination here & shall go hence thither Missionarys
To be payd & applyed to & amongst them in such manner as the s.^d
Society shall think most proper.

The Testat.^r made the s.^d Kingsmill Eyre his Sole Exec.^r & Abel Ketelby Esq.^r
Trustee & Overseer of his Will And dyed, And the Exec^r proved the Will in
Common Form in the Ecctial Court.

The Testator at the time of his Will & of his Death was initled unto
several Lands Tenem.^ts & Hered.^ts in Mary Land In America Part of which
were going to be sold by the Exec.^r & Devisee, & other parts the Executor was
bringing Ejectm.^ts therefor; the same being with held by Psons who have got
into Possion thereof.

But upon advising there in August last with M.^r Howard (Attorney to the
Lord Proprietor) he hav given his Opinion that the Exemplificacon of the
ordinary probate at D.^[illegible] Commons is not Sufficient, because it does not
appear that the Will was proved in the Chancery Court of England according
to the law of England by three Credible Witnesses (these are his words)
wherefore he thinks it absolutely necessary to procure proper Certificates
that the Will was proved in that manner, before Ejectm.^ts be brought for
the Lands therein menc.^d

M.^r Howard has not sayd what he grounds his Opinion upon, possibly its
upon the reced notion & practice of the place, for after looking over their
whole Statute book theres nothing found relating to the Mre there.
Indeed by the Act fo. 142 (the book being left herewith) for the better
Admstracon of Justice in Testamentary Affairs & the 1.^st Enacting Clause
Enacts that the Comissary for probate of Wills shall proceed according to the
laws of England then in force or to be in force And shall take the Probate or
Cause to be proved any last Will within that province althô the same concerns Titles of Land Any Law Statute Usage or Custom to the Contrary
notwithstanding

By the last clause in fo 149 & in the same Act there is to be a Deputy
Comissary in each County to take probate of any last Will & Testament even thô
the same be concerning Titles of Lands & to grant Admcon &r.

Fo: 228. 229. Theres an Act to Confirm Lands devised for the Use of the
Church & makes all Wills good for that purpose if Signed by the Testat.^r or
by some person in his presence & by his Express direccons in the presence
of three or more Credible Witnesses & duely proved. So that the Question
returns what is a due proof.

At the bottom of fo. 132 in an Act for quieting possions enrolling an open
Conveyances & securing the Estates of Pchasors—No Lands &r shall pass
alter or change from one to another whereby any Estate of Freehold or
Estate for above 7 years shall be made by ^reason of any Bargain & Sale only,
except the deed ^be indented & Sealed & acknowledged in the provincial or
County Court & enrolled within 6 Months after the Date—And if the Pty be
out of the province such lands shall be acknowledged by Lre of Att.^y, well
& sufficiently proved in the provincial or County Court where the lands
lye, & be enrolled as afores.^d

At fo. 134. An Act is made ^{& it is} declared what shall be good Evidence to
prove foreign & other Debts & Acco.^t, but does not come up to the point
in Question of proving the Will. Which point now comes ev^ry day in
Question, what proof is sufficient in our Several Colonys of a Will of
Lands executed & deposited here in England?

1. Can M.^r Eyre the Devisee, & the Society as the [Costny quo] Trust, make
a good Title to & sell any the Testat.^rs Real Estate in America, w.^thout
proving the Will P Testor in the Court of Chancery here in England; which
probate will be the more difficult to make in regard thô the Testat.^r has
named a Sister of his & her Children, in his Will, no such Psons are to be
found. So that its not known where to find his heir at Law?

I am of opinion that this case is within the Maryland Act for confirming
Lands devised to the use of the Church, & consequently that the Devisee—
cannot in strictness make a good Title to y^e Lands in that Province without
shewing that the Will was executed with y^e circumstances required by that Act.
Therefore, if a Purchasor insists upon it, the Will ought to be prov'd per Testes
in y^e Court of Chancery there, in w.^ch case y^e Witnesses may be examin'd by Comission
here in England; or else in y^e Court of Chancery of England, which I presume from
M.^r Howard has said is allow'd by practice there. The Exemplification of the Probate
in y^e Prerog: Court is certainly of no force as to y^e Lands.

2. Is it necessary in Order to M.^r Eyres's mainteining an Ejectm.^t for any of the
Testators ^Lands in Maryland, to prove the Will first in the Court of Chancery here
Ptestes. And if that be done, will the Exemplification of those proceedings
in Chancery here, be sufficient to Support Ejectm.^ts there, Or has the Court
of Chancery here no Jurisdiccon over lands in Maryland, where they have
a Court of Chancery of their own, Or if the Testators Heir at Law could
possibly be found out & wo.^d Release to the Devisee, wo.^d that be the better &
Certein way?

The most effectual & shortest way to answer y^e purposes in both these Queries is
to procure a confirmation of y^e Will from y^e Testator's heir at law, if that can be
obtained. But, if it cannot, y^e Devisee cannot recover in Ejectm.^t without proving
upon the Triall that the Will was duely executed in the presence of three Wit-
nesses, which cannot be done but otherwise than by sending a ^Subsuiting Witness over
from hence to prove it viva voce at y^e Triall, or else by one of y^e two methods
mentioned in y^e Answer to y^e former Query. The Court of Chancery here has—
certainly no proper Jurisdiction over Lands in Mary-land, & therefore the [deleted]
allowance of an Exemplification of y^e proof in that Court must arise from some
Law or established practive in Maryland.

1732
Case
of the Society for propagating the
Gospel in Foreign parts about
proving Gen^ll Nicholsons Will So
as to recover Lands in Maryland
With M.^r Att.^y Gen.^ls Opinion thereon.
The Maryland Statute book
is left herewith.

Paris 3.gu.