Probate Index Historical Background
Knowing that the territory within the confines of the State of Delaware was ruled by the Swedes, 1638-1655, the Dutch, 1655-1664, the Duke of York, 1664-1682, and the Penn Proprietors, 1682-1776, one naturally questions why this volume officially begins with 1680 rather than the earlier date of the Swedish or Dutch regimes. The Swedish and Dutch settlers were subject to practically the same laws that were in effect in the homeland. In accordance with legal procedure of that time, wills could be made orally or in writing. In either case, the will was made before a notary or some similar public judicial officer.
As public recording of the wills was not required, the notaries retained among their own papers the few wills that were made with the result that these records have since become scattered or lost. With the acquisition of the Delaware territory by the Duke of York, the system did not change noticeably because the laws governing this territory were not published until 1676. Due to the publication of the new laws governing this process and the creation of the three separate counties in Delaware, probates from as early as the 1680s have survived. The three counties in Delaware are New Castle (northern portion), Kent (central), and Sussex (southern). Kent County was separated from the Whorekill Court (earlier name for Sussex County) and named St. Jones in 1680. The transition from the government of the Duke of York to William Penn in 1682 brought a change of name from St. Jones to Kent County as well as better laws and regulations for recording probate records; resulting in more consistent recording of public records. The name of the southern most county was changed from Whorekill to Deala in 1680, and renamed by William Penn as Sussex in 1683.
It should be remembered that the Gregorian Calendar was not adopted in Delaware and other English colonies in America until 1752. Under the Old Augustine Calendar the year began on March 25th and December was the tenth rather than the twelfth month. Thus a date appearing in the test as 1682/83 will indicate that the year 1682 is nearly terminated and that 1683 is approaching. Furthermore, the difference between the Augustine and Gregorian Calendars will explain why some probate records would appear to be probated before they were made.
Even more confusing to researchers than the calendar changes are the relationships contained in some of these early probate records. Frequently, stepfather or stepmother is intended when the record states father-in-law or mother-in-law. In other instances, the stepparents will be designated as father or mother. There are also instances when the word cousin is used instead of nephew or niece.
There are some wills in which the foreign residence of the testator causes the reader to wonder why such a probate record was included. These foreign wills were recorded in the county either to show what disposition was made of the non-resident's property within this county or because he may have made a deathbed will while visiting here. A notable example of a foreign will is that of John Penn, son of William Penn, who did not die in Kent County, Delaware, but because he owned property in the country, his will was probated here August 13, 1747, after being probated in England nearly a year earlier.
