Continental Influences in Scottish Law of Succession of 1500-1700:

Unison or Divergence?By Ilya A. Kotlyar,

Edinburgh Law School. ©

Two types of succession in Scotland before 19641. Heritable succession

•concerned heritable property: land, fixtures and heritable debts;

•went to the heir-at-law by right of primogeniture;

•till the 19th century could not be bestowed by will;

•however, tricky legal devices allowed to overcome the ban and make it in practice a dead letter by the Eighteenth century.

Two types of succession in Scotland before 1964 (2)1. Heritable succession

•concerned heritable property: land, fixtures and heritable debts;

•went to the heir-at-law by right of primogeniture;

•till the 19th century could not be bestowed by will;

•however, tricky legal devices allowed to overcome the ban and make it in practice a dead letter by the Eighteenth century.

2. Moveable succession •concerned moveable property: corporeal goods

and moveable debts;•could be devised by will, although this right

was limited to 1/3 or 1/2 of moveable estate if testator had wife or children;

•the property was distributed among legatars or kinsmen by executor, either nominated by will or appointed by Commissaries.

Did vast Jus Commune literature on the law of succession influence Scottish practice??

Civil/Canon law of succession and Scots law of moveable succession are apparently quite

different!According to Civil law, heirs were the universal successors to all rights and duties of the defunct. They could be burdened with legacies. On the Continent the executors existed in the Middle Ages, but went out of use in 1500-1700.

Scots law preserved the importance of executor. Only executors could be universal successors to the defunct. They were burdened with legacies in favour of ultimate beneficiaries.

Defunct Defunct

ExecutorHeir Heir HeirLegatar

Legatar

LegatarLegat

arLegatar

Source Materials: Commissary Courts records

1. Commissary Courts were created in 1563 to take over the jurisdiction of former Catholic Consistory courts. They were abolished in 1836-1876.

2. They were entitled to confirm testaments of deceased people, by adding them to the register, accepting inventories and appointing executors.3. They were also entitled to deal with matrimonial

cases and small debt claims (up to £40 Scots).

4. For their services in registering the testaments they were entitled to court tolls, called “quots”.

5. Their records so far have been researched for matrimonial cases (Th. Green, 2010), but not for succession cases.

Source Materials: Commissary Court Records (2)1. The register of acts and decrees of Edinburgh Commissary court for 1639 (CC8/2/62) has so far been checked.

2. Litigation over succession was pretty scarce. For the whole year: Only 3 cases of claim for legacies;Only 4 cases of claim for defunct’s goods from unauthorised possessors.

3. Much of the litigation concerned the debt claims by the executors and from the executors.

4. The biggest claim registered – 10000 merks. £40 pounds restriction – dead letter.

5. Very little pleading and few contested cases. This was expectable: executors could only pay the debts secured by court decree.

Source Materials: Commissary Court Records (3)

For the early years of Edinburgh Commissary Court warrants of testaments (original testamentary deeds) are available (CC8/10).

They allow to check the formalities used while making wills.

Source Materials: Practicks and Case Reports1. Till mid-17th century “Practicks” was a usual name for legal writings exposing and summarising judicial practice of Scotland. They mostly reflected the practice of the Court of Session, although some authors showed knowledge of the practice of inferior Commissary courts as well.2. The Practicks of Balfour (c. 1580), Hope (c. 1633), Spottiswoode (c. 1637) were among the most well known. They were never published until 18th century, but they were widely circulating among the lawyers in Mss. 3. The modern-style systematic law

reporting appeared in Scotland only in mid-17th century.

4. The first collection of reports to be ever published was by Viscount of Stair in 1682.

Source Materials: Institutional Writings1. Institutional writings, unlike “Practicks”, encompassed not only Scots legal practice, but also legal theory, based mainly on Continental Jus Commune. 2. They are called so in analogy to French legal literature, which in its turn was imitating the Institutes of Justinian.3. The earliest “institutional” writings in Scotland were The sea-law of Scotland by W. Welwod (1590) and Jus feudale by Th. Craig (written c. 1600, first published in 1655).4. The Institutions of the Law of Scotland by James Dalrymple,

Viscount of Stair (1681), was the first fundamental work on Scots law. The work extensively compared Scots law of succession with Civil law. 5. However, recent research (A. Wilson, 2011) shows that Stair did not know Civil law very well. 6. Subsequent “Institutions”: G. Mackenzie (1684), Lord Bankton (1751), J. Erskine (1773), etc., - mostly referred to Civil law doctrines if the judicial practice had already adopted them.

Misunderstanding of Civil Law by Scots practitionersCivil law doctrine had two unrelated legal constructs:

1. Cautio Muciana – a caution (promise), provided to the heir by a receiver of conditional legacy (D.35.1.7).

2. Caution, provided to the heir by a receiver of legacy for the occasion of estate’s insolvency (D.35.2.41; Bartolus’s commentary to C.6.30.22.4, nu. 1)17th century Scots lawyers seem to have confused those two “cautions”!

The term caution mutiana is used to denote a security, provided to the executor by a legatar for the occasion of estate’s insolvency (akin to No. 2 above).

The misnomer is used by a party in Craufurd c. Matheson (1634), as well by Viscount of Stair (Institutions, III.8.70).

Misunderstanding of Civil law by Scots practitioners (2)1. In the case Dr. Monro c. Sir Scotts executors (1630), a party claimed that legacies for “pious uses” (e.g., to the Church, for charity) should have preference

in payment to all other legacies, in accordance with Civil law.

2. The Court “interpreted” Civil law in its own way. It claimed, that “pious legacies” were only free from “Falcidian quarter” (heir’s remuneration) at Civil law, but were not otherwise privileged.

3. Thus the plea was rejected. Since then Scots law gives no privilege to legacies for “pious uses”.

1. In Civil law, the original text of Novel 131, c. 12, expressly frees legacies for “pious uses” from “Falcidian quarter”. It does not expressly give them privilege over other

legacies.

2. The Glossa Ordinaria was still unclear on this issue.

3. The opinion of key Post-Glossators (see commentaries of Bartolus to D.35.2.52, Paulus de Castro to D.30.79, nu.5) was clearly that “pious legacies” are privileged before other legacies.4. Did Scots judges consult body text of Corpus Juris only, not

commentaries and monographs?

Solved Issues: Nuncupative Wills

1. At Jus Commune, purely nuncupative wills were valid, if made before seven witnesses (C.6.23.26).2. Two witnesses were enough to prove a last will made in favour of children (Bartolus to C.6.23.21.3, nu.3)

3. Two witnesses enough to prove a soldier’s will (Bartolus to C.6.21.15)

4. Two witnesses enough to prove a will for “pious uses” (X.3.26.11).

1. The particular laws of Continental European Countries in 1500-1700 generally followed Jus Commune rules, allowing nuncupative wills. 2. In Northern France such wills were restricted to 100 Tournai pounds (Anne-Robert of Orleans, “Rerum judicatarum” (1599), p. 458).

1. In England two witnesses were enough to prove any nuncupative will.

2. Testament in England follows law of soldiers (H. Swinburne, “A brief treatise on testaments and last wills” (1590), p. 19).

1. In Scotland the testaments appointing executors could only be made in writing (Stair, III.8.34)!

2. Nuncupative testaments were not recognized even if made abroad (Shaw c. Lewis, 1665).

2. The special legacies could be made nuncupatively if not exceeding 100 pounds Scots (Stair, III.8.36).

3. Legacies over 100 pounds were to be proved by writing or by oath of the defendant (Bankton, I.11.2).

Solved Issues: Nuncupative Wills (2)1. It seems, this short instruction to the Commissaries of 12.03.1567 (CC8/2/1, 430v-431r) was responsible for absence of nuncupative wills in Scotland2. It was published in 1754 edition of J. Balfour’s Practicks, pp. 662-664. Th. Green helped to find it in the archives.

3. The very first passage reads: “..in all time cuming nomination of executouris be provin by writ allanerlie”.

4. One needs to find out now, whether there were nuncupative wills in the registers before 1567!

Solved Issues: Limited Transmission in Intestate SuccessionFather

Dies on Jan, 1300

Son Dies on Jan, 8

Son Takes

possession of50

Dies on Jan, 11

Son All

remaining Estate accruesTo him250

Confirmed as executors on Jan, 9

GrandsonReceives Nothing

GrandsonGets

50

1. By custom, in case the defunct left no will, his “nearest-of-kin” were appointed executor-datives together.

2. If one of the “next-of-kin” died before the appointment of executors, he transmitted no property to his own successors and was not taken into account (Hamilton c. Hamilton, 1662).

3. An executor-dative had ownership only in the goods he had taken possession of (“intromitted with”). If he died before collecting all goods, he transmitted only the goods he actually possessed (Duke of Lennox c. Cleland (1627), Wilson c. Nicolson (1633)).

4. The position of intestate successors started to improve only from 1662 (Bells c. Wilkie).

Solved Issues: Limited Transmission in Intestate Succession (2)

1. In Jus Commune executors were deemed a “naked office”, having no personal interest. They were compared to agents and delegated judges (C.4.35.15; X.1.29.30; Sext.1.19.6)2. G. Durand in his Speculum Judiciale

(c. 1291) distinguished cases, where office of executor would be transmitted to successors, accrue to co-executors or be taken by newly appointed substitute (1531, L. 2 fo. 194).3. Boniface VIII (1298) made accretion of office to the co-executors the default rule (Sext. 3.11.2). But the Gloss to Liber Sextus (s.v. “Mortuo”) admitted transmission of executor’s duties, in so far as he started to perform them, to his own heirs.

4. Bartolus in his commentary to D.34.1.15-16 provides that, if executor meddles with a pecuniary fund (“bursa”) entrusted to him by will, the related duty is transmitted to the executor’s heirs. 5. If this influenced Scots practice, why didn’t it influence the English one? (Swinburne, Brief Treatise, p. 49).

Issues to Research: Holographic wills1. Holographic will is a will written by the hand of the testator without any witnesses being present.

2. Jus Commune jurisprudence generally was very reluctant to admit instruments as proof on the basis of comparison of handwritings only (glosses and commentaries to Auth. At si contractus (C.4.21), Auth. Sed novo jure (C.4.2), Auth. Si quis vult (C.8.17), X.2.22.2.

3. However, Jus commune legal authors usually accepted the validity of holographic wills (Bartolus to D.28.1.25 and D.35.1.38; G.D. Durante, De art test (II.2); G. Claro (Recept. Sent., § Testamentum, qu. 8).

4. In Scots law both holographic wills and other holographic documents were recognized from at least 1610 (Pursuer c. Titill, 1610; Arnot c. Countess of Orkney, 1611).

5. The Question: holographic wills appeared in Scotland either 1) independently from other holographic documents, and thus were probably inspired by Jus Commune, 2) or together with other kinds of holographic documents, and thus developed independently from Continental learning.

Issues to Research: Interpretation of Will Substitutes

Defunct

Executor

Legatar

Legatar

Legatar

Donatary

1. The term “Will substitutes” here means any instruments (tailzies, donations, bonds of provision, settlements, trusts) which allowed testator to exclude part of his patrimony from the general succession procedures.

2. In Scotland, these schemes were extremely popular and wide-spread, taking into account the limitations of Scots moveable succession.

3. My task is to find about doctrinal influence of Jus Commune on the judicial interpretation of those will-substitutes and whether they were mainly interpreted along the lines of wills and testaments or along the lines of contracts.