The surrogate

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

The surrogate.

Sounds like the name of a movie about a woman who helps folks have a child. Or some stand-in Romeo who wins the girl in the end after all.

But that’s sure not what you’ll find when you use the term in the genealogical sense.

But does it help if, at least, The Legal Genealogist can promise you some fascinating plot lines?

You will find them, absolutely, in the surrogate’s records … because the surrogate is the officer in some states, like New York and New Jersey, who’s in charge of wills and probates. And there’s not much in the law that promises more drama and pathos than who gets the china and where the land goes.

The term comes from English law and originally meant “one that is substituted or appointed in the room of another, as by a bishop, chancellor, judge, etc.; especially an officer appointed to dispense licenses to marry without banns.”1 So how did that morph into “a state tribunal, with similar jurisdiction to the court of ordinary, court of probate, etc., relating to matters of probate, etc.”?2

Easy: start with the Latin. As explained by the office of the Bergen County (New Jersey) Surrogate, “The word ‘Surrogate’ is taken from the Latin word ‘Subregare,’ which means substitute.”3

And who is being substituted for whom? That’s also easy. Original jurisdiction over wills and estates under English law didn’t rest with the courts. It rested with the church.4 That meant, in the ecclesiastical hierarchy, the Bishop. Who obviously didn’t have time to handle every will by every Tom, Dick and Harry.

And so the Bishop appointed someone to handle those matters not requiring his personal attention. And the person he appointed was — you guessed it — the surrogate. It might have been the chancellor of the diocese. It may have been an official called an ordinary (from which comes the court of ordinary in other states). But no matter what the title was, the function was surrogate.

When folks trained in that legal system came to America, they brought the concept with them. Wills in many of the early colonies were technically within the purview of the colonial Governors, who didn’t have time to administer estates either. So as early as 1670, Captain Robert Treat handled the estate of Hugh Roberts of Newark, New Jersey, “by permission of the Governor.” Or, in other words, as his surrogate.5

The first official Surrogate for the entire colony of New Jersey was appointed in 1720; county surrogates by the late 1760s. The State Legislature appointed surrogates by law as of 1822,6 but the position became an elected, constitutional office under the New Jersey Constitution of 1844.7 That provision was carried over into the Constitution of 1947: surrogates are elected for five year terms.8

New York’s terminology is the same, and its history not much different, though the term came to be used formally a little later in New York.9

So the official term for the official office handling wills and probate in New Jersey and New York is surrogate — and you may find it occasionally in the records of other states as well. And it’s there, in those states, that you will find the wills.


 
SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1184, “surrogate.”
  2. Ibid.
  3. About the Office,” Bergen County Surrogate (http://www.co.bergen.nj.us/surrogate : accessed 9 Apr 2013). I note for the record, and for the Latin scholars of my acquaintance, that I couldn’t confirm this with any of the online Latin-English dictionaries. “Regare” does mean “to govern” or “to carry out,” though, so it makes sense.
  4. See William Nelson, The Law and the Practice of New Jersey, From the Earliest Times, Concerning the Probate of Wills, … and the Surrogates (Paterson, NJ : Paterson History Club, 1909), 20-22; digital images, Google Books (http://books.google.com : accessed 9 Apr 2013). And see FamilySearch Research Wiki (https://www.familysearch.org/learn/wiki/), “England Probate Records: Pre-1858 Probate Courts,” rev. 17 Feb 2013.
  5. Nelson, The Law and the Practice of New Jersey, From the Earliest Times, Concerning the Probate of Wills, … and the Surrogates, 33.
  6. About the Office,” Bergen County Surrogate (http://www.co.bergen.nj.us/surrogate : accessed 9 Apr 2013).
  7. Article VII, Section II, para. 6, New Jersey Constitution of 1844, New Jersey State Archives (http://www.nj.gov/state/archives : accessed 9 Apr 2013).
  8. Article VII, section II, para. 2, New Jersey Constitution of 1947; New Jersey State Legislature (http://www.njleg.state.nj.us : accessed 9 Apr 2013).
  9. See Charles P. Daly, The Nature, Extent and History of the Jurisdiction of the Surrogates’ Courts of the State of New York (New York: Bloom & Smith, 1863); digital images, Google Books (http://books.google.com : accessed 9 Apr 2013).
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5 Responses to The surrogate

  1. Marsha Lancaster says:

    Thanks for this very helpful article. I’ve been on the lookout for a more in depth explanation. My 4th gr-grandfather William Finn, was appointed surrogate by the governor of New York in 1742. It’s nice to better understand the origins of the office.

  2. Sharon Meeker says:

    Thanks, Judy.

    I was elected Surrogate at the New Jersey Girls State program at Rutgers one summer — back in the Dark Ages. So I’ve always had a special affinity for the office and the records.

    • Judy G. Russell says:

      One of these days, Sharon, you’ll have to tell me just how far back into the Dark Ages that was. I too was in the New Jersey Girls State program at Rutgers one summer. Except I was there in, oh, the paleolithic era or so…

  3. I’m getting an education about legal terms by reading your blog! Very clear and well documented.

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