View all series for PREROGATIVE COURT
The probate court of Maryland for the greater part of the colonial period was called the Prerogative Court which was responsible for overseeing the administration of all the records related to the estate of a deceased person. For a more detailed explanation of Maryland probate records see the entry in this
guide and probate in Wikipedia.
The Maryland State Archives indexes probate records through its on-line search engine which accesses an in progress indexing service based upon automating existing card indexes, abstracting not covered by copyright, such as Baldwin's Calendars of Wills, and on-line indexing provided by Archives staff and volunteers such as that undertaken by the late Carson Gibb, and the Career Files of Dr. Lois Green Carr. The probate records that have been indexed to date are available through the Maryland State Archives search function, utilizing the drop down box "Colonial Era Probate Record Index" and searching on a name. Users are cautioned that this is an on-going indexing project and that not all probate records for the colonial period are included in the index, which is also true of all private subscription based services currently being offered on the web.
Many features of the court, notably the terminology, were borrowed from the English Prerogative Court. The origin of the court in Maryland can be traced to the charter granted Lord Baltimore in 1632. In it, he was given complete control over the colony, including control over matters of probate.
In 1637, Lord Baltimore appointed his brother, Leonard Calvert, lieutenant general (governor) and placed him in charge of the colony. A council was named to advise him with one member designated as secretary of the province. In 1638, the secretary was appointed commissioner "in causes testamentary, to prove the last wills and testaments of persons deceased." Yet, it was not until 1670 that the Prerogative Court was formally established when Lord Baltimore gave the secretary full power "to hear, sentence, and declare all matters touching wills, administrations, and inventories." On May 19, 1671, the term "Prerogative Court" was first used in the records of the court. On November 20, 1672 the office was separated from that of the secretary and Philip Calvert received a commission as chancellor and judge or commissary general for probate and wills. Under Calvert (1673-1682) the court did not use the term "Prerogative Court." After Calvert died in 1682, the term reappeared and was used continuously thereafter.
The basic organization of the Prerogative Court and the procedures for handling probate matters were laid out by the General Assembly in 1681. The court handled the proving of wills, recording of administration of estate documents, and hearing petitions. The care of orphans' estates became the responsibility of the county courts. Because of travel difficulties in the colony, the secretary and later the commissary general issued special commissions to persons to probate wills or administer oaths to administrators or appraisers. These commissions were so commonplace by 1692 that the commissary general was authorized to appoint a deputy commissary in each county to prove wills, grant letters of administration and letters testamentory, and administer oaths. A law passed in 1715 permitted the deputies to prove smaller accounts of estates. All matters in dispute were referred to the commissary general.
The 1715 law, and its revision under the Constitution of 1776, was apparently based upon the Orphan's Court laws implemented for the City of London. A volume of those English statutory requirements once owned by Baker Johnson, brother of Maryland's first Governor under the Constitution of 1776, is to be found in Special Collections on line as
The Infants Lawyer... (inscribed by Baker Johnson)
1712 (2nd) edition of a 1697 publication. For a teaching lesson on the care and treatment of Maryland orphans in the colonial era see: The Legal Status of Orphans in Colonial Maryland at the Maryland State Archives Teaching American History in Maryland web site.
Estate papers handled by the deputy commissaries were sent to the commissary general where they were recorded. Some recording also took place at the local level. Probate records maintained by the Prerogative Court included administration accounts, inventories, testamentary proceedings, and wills.
The Maryland Constitution of 1776 provided for the appointment of a register of wills in each county and, by implication, abolished the Prerogative Court. The following year, the General Assembly formally abolished the court and established an Orphan's Court and register of wills in each county (Chapter 8, Acts of 1777).
See: Elisabeth Hartsook and Gust Skordas. Land Office and Prerogative Court Records of Colonial Maryland. (Annapolis: Hall of Records Commission, 1946) for an explanation of the Archives holdings of Prerogative Court records.
[revised and edited by ecp, 2010/01/09]