Delaware County Court, Probate, Tax and Other Miscellaneous Records

American court files mirror U.S. history. Buried away in courthouses and archives everywhere are the dreams and frustrations of millions of citizens. The chances are great that your ancestors have left a detailed record of at least some aspects of their lives in court records.

Most of us don’t think of court records as the rich source of personal history that they are. But America’s English heritage established a tradition of court processes in which the people have a right to participate actively—and we always have. With relative freedom from royal supervision and with court enforcement of religious as well as civil laws, American courts tried many matters that were not subject to court action in other parts of the British empire and that are now considered too minor to warrant criminal action.

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When a person dies, every state has laws that provide for public supervision over the estate that is left, whether or not there is a will. The term “probate records” broadly covers all the records produced by these laws, although, strictly speaking, “probate” applies only when there is a will.

Family historians use probate case files far more than any other kind of court record. Probate case files are logical sources because they tend to include so much personal data, and because Americans have depended on the courts to settle their estates since North America was colonized. According to Val Greenwood in his Researcher’s Guide to American Genealogy, “All records which relate to the disposition of an estate after its owner’s death are referred to as probate records. These are many and varied in both content and value, but basically, they fall into two main classes: testate and intestate”. Probate case files generally provide names, addresses, and biographical data for the deceased, but frequently provide the same information for other relatives named in the papers. Relationships, maiden names of wives, married names of daughters, past residences, and place of origin in a native country are just a few of the details that can be discovered in probate files. And probate files can be found in courthouses and archives across the United States.

When requesting probate information from the county clerk, it is important not to limit yourself by asking for a person’s “will.” The clerk will usually take you at your word and not copy other papers in the probate file that may have equally important information if there is no will.

Even if your ancestor is not mentioned in a probate case, consider all of the other procedures which might have resulted in him or her appearing in court records:

Delaware Court Records

See Also Research In State Court Probate - Even today, few people escape mention in court records at some time during their lives as witnesses, litigants, jurors, appointees to office, or as petition signatories. However, Americans of a few generations ago also expected to attend local court proceedings when they were in session. It was a civic duty-and they could be fined if they did not attend......

The Delaware State Archives has state and county level court records back to the colonial period covering civil and criminal records, naturalizations, and indentures. Some earlier records are in Maryland, New York, and Pennsylvania. At the county level, the court of common pleas and superior court handle civil and criminal matters, depending on the offense. Cases involving equity and trust estates are heard in the chancery court. The office of the county prothonotary has custody of divorces until 1975, civil and criminal court records, and naturalizations, although the latter are now in the state archives. Land records are with the recorder of deeds, and estate matters are handled by the register of wills and orphans' court. The orphans' court was consolidated in 1975 with the court of chancery to handle estate disputes and other partitions, with records kept by the register in chancery in each county

A Court of Chancery headed by a chancellor was not established in Delaware until 1792. Before that time chancery or equity cases were tried by justices of the law courts. Under the Duke of York, the town or country courts were responsible for equity cases. Some cases tried by common law were appealed and tried again in equity by the same court and justices. Under the Duke of York, the governor of New York also exercised equitable power by overturning excessively harsh law judgements.

The judicial system established by William Penn made every court a court of equity. The Provincial Court took appeals and heard all cases in equity not determined by the county courts. In 1701 it was required in equity cases that “the proceedings shall be by bill and answer, with such other pleadings as are necessary in Chancery Courts, and proper in these parts; with power also to the same justices to force obedience to their decrees in equity by imprisonment or sequestration of lands, as the case may require.”

Although the terms Court of Equity and Court of Chancery were used interchangeably in court documents as early as 1702, it is not until 1752-1753 that the court is referred to as the Court of Chancery in the Delaware Laws.4 By this law (1752-53), landowners could petition the court to appoint three commissioners to examine witnesses who could verify land boundaries. Depositions that resulted from the examination were returned to the court to be recorded. Registers in Chancery are first mentioned in 1770 in “An Act for regulating and establishing fees.”

Under the 1776 constitution, the justices of the Courts of Common Pleas were given the same power of holding “Inferior Courts of Chancery” as they had previously exercised. The president and Privy Council appointed the registers in chancery. The register could not be a justice of the court was given the authority to sign all writs issued by the judges and to take recognizances of bail.

The 1792 constitution introduced major changes in the state’s judicial system. The equity jurisdiction that had previously been exercised by the common pleas judges was “separated from the common law jurisdiction and vested in a Chancellor.” The chancellor held court in each county. In cases in which he was personal involved, the case was tried in the Court of Common Pleas. Appeals from the chancery were made to the High Court of Errors and Appeals; the Courts of Equity that previously had been exercising chancery jurisdiction remained in operation until October 1793.

In addition to equity jurisdiction, the Court of Chancery was given the responsibility for “the case of all idiots and lunatics above the age of twenty-one years.” The court would summon a jury to determine if a person was insane, and the court would then appoint a trustee to take charge of the person and manage his estate. The trustee had to file a recognizance for faithful discharge of his duties and render an account of the profits of the estate and his expenses for his trusteeship at least once every year.

An amendment to the constitution passed in 1802 made the chancellor the only judge for the Orphans’ Court. He was given the authority to “exercise the equity jurisdiction heretofore exercised by the Orphans’ Court, except as to adjusting and settling executors’, administrators’; and guardians’ accounts.” With these accounts he did have appellate jurisdiction over the register of wills’ rulings. The chancellor also could compel a removed executor or administrator to deliver papers and property belonging to the estate.

After 1816 a person holding land as a joint tenant could petition the chancellor to partition the land. If other joint tenants did not object, the chancellor issued commissions to five freeholders to make a fair partition and make a return with a survey included.

The 1831 constitution made few changes in the Court of Chancery but did abolish the Court of Common Pleas, so that cases in which the Chancellor was personally involved were now to be tried by the chief justice of the Superior Court. The chancellor continued to head the Orphans’ Court but was joined by the associate judge residing in the county. Either one or both could hold court.

In 1869 the Court of Chancery and the Orphans’ Court were permitted to invest money under orders of the court and to secure it for the use of the person entitled to it. An addition to the court’s responsibilities for the insance occurred in 1871 when relatives or friends could apply to the chancellor to have a mentally ill person placed in an institution for the insane in Pennsylvania instead of the county almshouse. The chancellor was then required to appoint a trustee to manage the estate and to get an annual report from the asylum.

Also in 1871 the chancellor was required to collect and publish the equity cases brought before the court. To save costs in cases that were appealed, the chancellor was permitted to send original depositions and exhibits to the Court of Errors and Appeals rather than copies.

Whenever a person made voluntary assignment of his estate to another person in trust for his creditors, the assignee had to file an inventory of the estate with the register in chancery. The chancellor then appointed two appraisers who determined the value of the estate, and the assignee gave bond for double the appraised value. The assignee had to render an account of his trusteeship every year.

Under the 1897 constitution, the court continues to have all the jurisdiction and powers vested by the laws of this state in the existing Court of Chancery. The chancellor is appointed by the governor for twelve-year terms. The appointment must be approved by the Senate. The chancellor and the resident associate judge held the Orphans’ Court in each county until the 1951 judicial reorganization. Since 1951 and until the Orphans’ Court was abolished in 1970, the president judge and the associate judges of the Superior Court held the Orphans’ Court.

Before 1939, if the chancellor was disqualified from hearing a case, the chief justice of the Supreme Court had jurisdiction. In 1939 the position of vice-chancellor was created to help relieve the caseload burden and to hold court in the chancellor’s absence. He was appointed by the chancellor and commissioned by the governor, but since 1949 has been appointed by the governor to twelve year terms, with Senate approval. In 1961 one additional, and in 1983 two additional, vice-chancellors were added to the court.

The register in chancery serves as the clerk of the Court of Chancery and as such is responsible for the records of the court. He is also required to report real estate transfers to the county Boards of Assessment. Until 1970 when the Orphans’ Court was abolished, the register was also the clerk of the Orphans’ Court.

In 1903 the chancellor was given the authority to appoint masters to assist the court in specified judicial duties. Since 1974, when the General Assembly created the Office of Public Guardian, the chancellor has been responsible for appointing a public guardian who serves as a guardian for the property and/or person of the aged, mentally infirm, or physically incapacitated.

Under the 1897 constitution, the court’s main responsibility continues to be “to hear and determine all matters and causes in equity.” Cases for which there are common law or statutory remedies can not be tried in chancery. In cases where issues of fact arise that are triable by jury, the issues of fact are referred to the Superior Court for trial.

Because of the equitable nature of many estate cases, the Court of Chancery was permitted to exercise jurisdiction in cases for which other courts had not been given specific power, “or for which methods of relief available before such courts are imperfect or inadequate.” The court has the authority to enter decrees of distribution in the administration of estates and can distribute assets of a decedent’s estate. Under certain circumstances chancery could exercise jurisdiction on exceptions to accounts passed before the register of wills and compel executors and administrators to account.28 Appeals from the Register’s Court are made to Chancery.

After the Orphans’ Court was abolished in 1970, the Court of Chancery took over all Orphans’ Court functions except for adoptions and terminations of parental rights. These responsibilities were given to the Superior Court.

A major function of the Chancery Court is to oversee trusts. Whenever a will that contains a trust is probated before the register of wills the Register of Chancery must be informed. The register in chancery then records the pertinent information. All trustees named in wills or appointed by the court have to file accounts with the register. Persons renouncing their trusteeship must file a written renunciation which the register records in the chancery docket. Trustees who are not properly administering their trust can be removed by the court.

Another responsibility of the Court involves corporations. In cases of bankruptcy or the dissolution of a partnership, the court appoints receivers. The court has the authority to prevent delinquent corporations from doing business. When a corporation is delinquent in tax payments, the attorney general requests that the court appoint a receiver to manage the corporation’s affairs. The chancellor also has the power to prevent the fraudulent sale or exchange of stocks, bonds, notes, and securities.

Beginning in 1931, the insurance commissioner was permitted to have the court enforce orders issued by him. Appeals to his decisions were to be made to Chancery Court. Appeals of State Housing Board decisions were also made to the Court of Chancery.

Other duties of the chancellor include appointing arbitrators in labor disputes, and enforcing union contracts by issuing restraining orders or injunctions and regulating picketing.

• Delaware Court Books at Amazon.com
• Court, Land, Wills & Financial - Court records are an often overlooked, yet very valuable tool for finding information to assist you in your research. Land records, such as deeds, allow you to tie an ancestor to a specific place at a point in time. Other court records like those dealing with finances and estates often list related family members or give interesting details like the total value of property owned by your ancestors to add interest to your family history.
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Delaware Probate Records

See Also Research In State Probate Records - Probate records include a variety of documents created to support court proceedings in the settlement of an individuals' estates. The number and type of probate records created may vary over time in different jurisdictions and due to the amount of real and personal property involved. The various documents generated in the probate process are rarely filed together......

The early probate records for Delaware, from 1676 into the twentieth century, are at the Delaware State Archives, either in their original form of books and files, or on microfilm, or both. From the early 1700s, there are orphans' court records with very useful partitions of land of intestates and consolidated card file indexes by county covering estates to 1850. Earlier probate information should be sought in records of Maryland, Pennsylvania, and New York. It should also be pointed out that many early wills pertaining to Delaware residents, while proved, were never recorded. Later records are filed with the appropriate county register of wills. Calendars have been published for the wills of all three counties: Calendar of Kent County Delaware Probate Records 1680-1800 and Calendar of Sussex County Delaware Probate Records 1680-1800 and A Calendar of Delaware Wills New Castle County 1682-1800. The former two include the volume and page numbers not only for the county record volumes but also for those volumes at the state archives into which the early original documents were mounted. The latter work on New Castle County does not include intestate records.

The origin and evolution of the office of Register of Wills can not be determined easily from early Delaware and Pennsylvania laws. However, by 1694 the register’s responsibility to probate wills, grant letters of administration, and settle estates was understood. These major responsibilities changed little in the succeeding three centuries until 1974 when some of his duties were given to the Court of Chancery.

Under the Duke of York, a law dated September 22, 1676 assigned the responsibility for probating wills and settling estates to both the constables and the county courts. When a person died, his death was investigated by the constable and two overseers of the parish to determine if a last will and testament existed. If none could be produced, it was assumed that the person died intestate (without a will); the constable determined the extent of the estate and submitted his findings to the justice of the peace. The justice could issue warrants to ensure that the property was not distributed before the next term of the Court of Sessions. At that time, the Court determined administration of the estate. If a widow or child was to administer the estate, the court appointed four men to inventory the appraise the property which was then divided among the widow and children. If there were no heirs, the property was sold by the court, and the money reverted to the king. If a will was produced, it was also proved at the Court of Sessions or Assizes, and administration was granted by the court. Wills involving estates of under one hundred pounds were not required to be recorded in New York.

Laws enacted under William Penn (1682) stipulated that a volume be kept by the register in which were recorded births, marriages, burials, wills, and letters of administration. Permissible fees for recording these instruments were determined by legislation passed the following year. Further delineation of the register’s duties is not noted until the 1694 minutes of the Provincial Council. At that time, the representatives and Governor approved a motion designating persons in each county to prove wills and grant administrations. This official became known as the Register General.

A Register of Wills is not mentioned in Delaware Law until 1706. Legislation confirmed that wills were proved in a register’s office. Other early laws required the register to post bond ensuring faithful performance of his duties and to take security from administrators or else void their letters of administration. The register was also compelled to transit copies of all bonds, inventories, accounts, and proceedings relating to the estates of orphans or minors to the Orphans’ Court. In 1766 a Court of Delegates was established to hear appeals from registers relating tot he probating of wills and the granting of letters of administrations. Three judges and a clerk were commissioned by the Governor to staff the court.

The State's 1776 Constitution makes little mention of the Register of Wills except to give the President and Privy Council the power of appointment. Under the 1792 Constitution, the Register was commissioned for five years by the Governor, although he could be removed by the Governor or both houses of the legislature on conviction of misbehavior in office. Currently, under the 1897 Constitution, a register is elected in a general election and commissioned by the Governor for four years. He is required to give security for faithful execution of his duties, such bond is filed with the Recorder of Deeds. He has the power to issue processes of citation, subpoena, attachment or capias; take acknowledgements; administer oaths; issue notices; certify and authenticate copies of instruments, documents, and records; and compel the appearance of witnesses and obedience to his orders by arrest, imprisonment and sequestration. Any deputies appointed to the office also have the power to administer oaths, make probate of wills, and grant letters testamentary and of administration. Their appointments are recorded in the Office of the Recorder of Deeds. After the 1974 reorganization of the office, the Register is now considered a clerk of the Court of Chancery.

The Register of Wills’ primary responsibilities are to probate wills, to issue letters of administration or testamentary, and to settle estates. Any person having custody of a will is required to produce and deliver it to the Register of Wills within ten days of learning of the testator's death. A person failing to deliver a will is liable for damages or may be cited for contempt. A 1983 law allows any testator, testatrix, or attorney to deposit original wills for safekeeping in the office of the Register of Wills for New Castle County. The wills are then sealed, numbered, and indexed. Whenever notice of the death of the testator or testatrix is received, the Register opens the will and places it in a pending file to await probate.

Wills are proved before the Register of the county in which the testator resided at the time of his death. The will of a non-resident of the State is certified in the county in which property is owned. A will filed out of State and entered as evidence in a Delaware court is filed by the Register of the county in which the case is heard.

Wills being proved are recorded in the office of the Register; the original will is also preserved in that office. Proof of a will can be taken without giving notice to any person interested unless they request that notice be given. The Court of Chancery (before 1974, the Register of Wills) appoints a time for taking the proof and awards processes of citation requiring the presence of all interested, if they think necessay.

If the will is certified as genuine, the Register issues letters testamentary to an executor of the estate. If a person died intestate, letters of administration are granted by the Register to an administrator who manages the estate. Administrators are usually persons entitled to a residue of the estate; if no one is capable, then a creditor or other suitable person is selected.

In 1989, the Court of Chancery has the power to remove executors or administrators who neglect their duties. This was previously a function of the Register of Wills. Executors and administrators are required to post bond before assuming the duties of their position. The Register is required to note in his docket the granting of letters, the names of the sureties, and any penalties for default of responsibilities. Bonds are filed in the Register’s office. The Register posts and publishes notices of the granting of letters so that all persons having demands against the deceased’s estate can have them satisfied. This was the responsibility of the administrator or executor in earlier times. Any actions of the register relating to the granting or the revoking an executor or administrator are subject to appeal. Appeals were heard by the Supreme Court (until 1831) or the Superior Court (until 1974). In 1989 appeals are directed to the Court of Chancery.

After issuing letters, the Register of Wills appoints one or more persons to appraise and inventory the property of the deceased. After the inventory, appraisal, and a list of debts and credits is compiled, it is verified by affidavit signed by each executor or administrator. The Register can order the suppression of an inventory or list of debts and credits and require a further inventory or list be made if he believes them incomplete or incorrect. In the past appeals of this decision were made to Orphans' Court. Since the abolishment of the Orphans’ court in 1970, suppression of an inventory or list is currently a responsibility of the Court of Chancery.

The executor or administrator was required to render an account of his administration every year until the concerns of the deceased's estate were closed and the final account passed. As soon as was convenient, the Register examined, adjusted, and settled the account in the presence of the executor or administrator. When the account was settled, the executor notified in writing to all persons entitled to shares of the estate that the account was lodged in the Register's office for inspection. Currently the Register of Wills performs this duty. Exceptions to the accounts could be made by any person concerned and were heard in the Orphans' Court until its abolition in 1970. If an executor or administrator could not disburse money in his hands because of the infancy or absence from the State of any person entitled to any share of the estate, they could deposit that share in the Farmers' Bank to the credit of the person. The executor or administrator took a certificate of the deposit and deliver it to the Register to be recorded. After July 1807 all accounts, inventories, appraisements, and valuations were required to be made in United States money, not in pounds, shillings, or pence. A 1973 law required the rendering of all accounts to the Court of Chancery for settlement instead of to the Register of Wills. However, all accounts approved by Chancery recorded and indexed by the Register.

The 1792 Constitution gave the Register the jurisdiction to adjust and settle executors, administrators, and guardian accounts previously done by the Orphans' Court. The clerk of the Orphans' Court was required to deliver to the Register all administration and testamentary bonds as well as all accounts of deceased persons settled by the Orphans' Court. Whenever the court appointed any guardian, the clerk was required to notify the Register. Guardians rendered an accounting of their actions at the end of the first year; afterwards, such an accounting was made at the discretion of the Register. The Register of Wills had the power to order guardians to file such accounts and could enforce this power by attachment for contempt and imprisonment. In 1903, the settlement of guardian accounts again became the responsibility of the Orphans' Court. Registers were ordered to deliver to the clerk of the Orphans' Court all guardian accounts, indices, and other related records.

A 1933 law enabled executors and administrators claiming to have an interest in the estate to apply for a decree of distribution from the Register (currently, the Court of Chancery). Such decree determined apportionment of the estate.. Whenever the Register had a vested interest in a case brought before him, the Orphans' Court then probated the will, granted letters, and settled the account. Appeals were taken to the Supreme Court (after 1831 to Superior Court.) In 1970 the Orphans' Court was abolished; all of its duties relating to settlement of estates were given to the Court of Chancery.

The 1792 Constitution established a Register's Court. Held by the Register of Wills, this court settled disputes involving estates. The Register took written depositions of witnesses, which were made part of the proceedings of a case. He issued processes throughout the State to compelling the attendance of witnesses. Appeals of his decisions could be made to the Supreme Court (after 1831 to Superior Court). Appeals are currently made to the Court of Chancery.

The Register of Wills also had responsibilities relating to taxes. An 1877 law required that the Register obtain the assessment of property from the assessment records of the Levy Court in all cases where real estate was subject to the inheritance tax. The tax was based on this amount. A 1909 law required the Register to keep a separate docket, the Inheritance and Succession Docket, to record a general description of each parcel of real estate owned by the decedent; names of the parties entitled to any parcel; and the relationship of the person to the decedent. If the property was subject to a tax, the Register entered the amount of tax due and when paid into the docket. The tax was collected by the executor or administrator from the estate and given to the Register. Quarterly returns of collected taxes were made to the State Treasurer. In 1935 tax collection duties were assumed by the State Tax Department. The Register sent a monthly list of wills probated and administrators appointed to the State Tax Department. Currently every executor or administrator is required to file a tax return with the Division of Revenue. Final accounts cannot be approved until the Register receives a certificate from the Division of Revenue that the inheritance tax has been paid.48 The Register is also required to make a list of changes in ownership of real estate each month for the Board of Assessment (formerly to the Receiver of Taxes and County Treasurer).

An additional duty was given to the Register of Wills during World War II relating to missing or captured servicemen or merchant seamen. Since that time, the register may appoint a conservator to serve as a guardian of the absent serviceman's or seaman's property. On the petition of the absentee or his attorney, the Register terminates the conservatorship, transferring all property to the absentee or his attorney. If the serviceman dies while away, the Register appoints an executor or administrator for the estate and the probating of the estate begins.

• Delaware Probate Books at Amazon.com
• Kent County, Delaware Probate Records, 1680-1800: This database is a calendar of probate records from Kent County, Delaware between 1680 and 1800.
• New Castle County, Delaware Wills, 1682-1800: This database is a collection of will abstracts from New Castle County, Delaware between 1682 and 1800.
• Sussex County, Delaware Probate Records, 1680-1800: This database is a collection of some probate records and will abstracts from the county between 1680 and 1800

Delaware Immigration & Naturalization Records

See Also Research In State Immigration & Naturalization Records - Knowing the immigrant's birthplace or last place of residence before emigrating is essential to finding more information in the native land. Yet, unless the ancestors arrived relatively recently in the United States, family origins may have been forgotten. Because most foreign records are kept at the town level, discovering the name of a native town, county, or parish is an important goal. Without that information, it is impossible to know where to conduct research in the country of origin.......

Immigration - Ship passenger arrival lists for Wilmington, 1820–49, are on microfilm at the National Archives-Mid Atlantic Region. See also Carl Boyer, ed., Ship Passenger Lists: Pennsylvania and Delaware, 1641–1825 (Newhall, Calif.: the author, 1980). Priscilla Thompson's Arriving in Delaware: The Italian-American Experience (Wilmington, Del.: History Store, 1989) provides a study of one immigrant group, from about 1870.

Naturalization - A card index at the Delaware State Archives to a few naturalizations for 1788–1905 actually gives brief abstracts of the records. Federal court naturalizations for 1845–1910 are at the National Archives-Mid Atlantic Region, and county records originally with the prothonotary are now at the state archives. Naturalizations for New Castle County, 1826–58, were published in The Maryland and Delaware Genealogist 18 (1977): 2–4 and 19 (1978): 1.

• Immigration & Emigration - As our ancestors moved from one country to another, details about their lives were recorded on passenger lists and government documents. Immigration and emigration records can help you learn where your ancestors originally came from, where they went, when they left, who they traveled with, and more.

Delaware Tax Records

See Also Researching in Tax Records - Things taxed have included carriages and watches, windows and whiskey, land and slaves. Taxes on documents and tea helped start a war. Arkansas Territory’s sudden tax on bounty lands in the 1820s was enacted and due before the news had time to reach out-of-state owners, permitting the quick seizure and sale of “delinquent” lands. As this variety suggests, name lists of such taxes must be used with a cautious understanding of who should be on the list and who should not...

Taxes were levied for personal property and land through most of Connecticut's history. The town assessor (or lister) made annual lists or rates of all taxables. This generated a considerable number of tax lists across time, but the Connecticut State Library has a list of various tax records still at the town clerk's offices. The Connecticut Historical Society and the genealogical collections throughout the state have some records.

A highly valuable tax record for Connecticut is the U.S. Direct Tax for 1798. The records are extant for nearly half of the towns with some also having rate lists for 1813, 1814, 1815, and 1816. The original booklets indicate rate based on land, dwellings, and personal property, the latter of which is usually itemized. Later years indicate out-of-state owners. The records have not been microfilmed as a group, but the originals can be researched at the Connecticut Historical Society.

• Delaware Tax Books at Amazon.com