Genealogical Studies at Strathclyde
Postgraduate Certificate in
IT IS WRITTEN Genealogical Studies
Inheritance in Scotland Runs October to June
Project submitted in August
and the Related Documents Online delivery
Dr Bruce Durie FIBiol CBiol FLS FSAScot Postgraduate Diploma in
Course Director, Genealogical Studies Genealogical Studies
Centre for Lifelong Learning Runs October to June
Dissertation submitted in July
University of Strathclyde Online delivery
Masters Degree (MSc)
Handout available at www.sog.org.uk
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IT IS WRITTEN! The Courts
1. Before the 1560s wills were Church records
2. Bishops (Consistorial Courts) had civil jurisdiction over executry and
•There is a great deal of genealogical and family history 3. After 1564 22 Commissary Courts were established – these bear more
in wills, testaments, inventories and other old documents. relation to the pre-Reformation mediaeval dioceses (St Andrews,
Dunkeld etc) rather than county boundaries.
4. Up to 1823, testaments were recorded in the local Commissary Court
• But often, there isn’t as much information as you might which had jurisdiction over the deceased’s parish.
think 5. The Edinburgh Commissary Court was superior and could confirm
testaments where the deceased had moveable property in more than
one commissariot, across commissariot boundaries and where a
•Finding these can be difficult, as can their interpretation. Scots died "abroad" (including England).
6. The Commissary Court of Edinburgh had exclusive jurisdiction in
marriage, divorce and bastardry, and a general jurisdiction in the same
areas as the old courts.
Commissaries and Courts list -
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The Courts Wills or Testaments?
1. Edinburgh also held local jurisdiction over the Lothians, Peebles and
part of Stirlingshire. There was a limited right of appeal to the Court of •“Testament” is the general term relating to all documents
2. The 21 inferior Commissary Courts had jurisdiction mainly in relation to concerned with the executry (settling the estate) of a deceased.
testaments, but also in actions of slander, aliment, debt up to a limit of •Each testament will have an inventory of the deceased's
£40 Scots and the authentication of tutorial and curatorial inventories.
3. The courts largely adopted the old canon law, except where this was property (either a short valuation of the goods, gear, money
contrary to the Reformed religion. possessed, owed and owing etc.) or sometimes a longer list of
4. From 1 January 1824 Commissary Courts ceased to exist and Sheriff items and their value.
Courts took over confirmation of testaments (some overlap during the
hand over). •Some testaments (not many) include a Legacie or Latterwill -
5. Inferior powers were transferred to Sheriff Courts in 1830. the deceased person’s wishes as to the disposal of their
6. The Commissary Court of Edinburgh retained inferior powers until 1836.
Its powers were transferred to the Court of Session (except for aliment, property among family, friends and others.
transferred to the Sheriff Courts).
7. All commissary courts were abolished in 1876.
8. The office of Commissary Clerk of Edinburgh remained, and the Sheriff
Court of Edinburgh retained confirmation of testaments of persons dying
outside Scotland possessed of moveable estate in Scotland.
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Wills or Testaments? What do Testaments contain?
Testaments are often a disappointment to genealogists, because:
•If there is no will, the document is a ‘Testament Dative and
• Not everyone left a testament – however, sometimes even the
Inventory' (equivalent to English ‘Letters of Administration’). poorest with very few possessions wanted to leave instructions
Abbreviation TD or TDI as to how personal affects should be distributed while the
richest apparently made no such provision
•If a Latterwill is included or referred to, the document is a
• There may be no mention of the wife/husband or children by
‘Testament Testamentar' (equivalent to English probate). name.
Abbreviation TT or TTI • The reasons for have to do with:
1. the laws of succession and inheritance
2. separate arrangements for the inheritance of “real”
property (Retours of Services of Heirs)
3. The best examples give a great deal of detail about the
family and their circumstances, debts they owed and
owing to them and so on.
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What do Testaments contain? Testament from 1842
Testaments are usually easy to read:
• Before the early 1900s they are usually handwritten.
• The 1800s copperplate handwriting is easy to read
• The hands used in documents of the 1500s to 1700s are
• Testaments are usually in English, but older ones will be
in Scots, and a very few from the 1500s and early 1600s
are in Latin.
Inventory of the Personal Estate of Mrs Agnes Greig
• All contain bits of legal jargon, often expressed in old Or Durie lately residing in Fountainbridge Edinburgh
Scots or Latin Relict of Charles Durie Esquire of Craigluscar who died
• Some examples… At Fountainbridge aforesaid upon the sixth day of October
1842 years with interest due on the principal sums at that date…
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Testament from 1759 Testament from 1635
The Inventory and testament dative and hunc
The Testament Dative and Inventory of goods gear & Effectum of the gudes gear and detts of Umquhile George
Debts of umquhile george Lord Rutherford within the Parish Durie of Craigluscar in the parish of Dunferm-
of Burntisland and Sherriffdome of Fyffe the time of his -ling and sheriffdom of Fiffe the tyme of his deceis
decease which was upon the eighteenth day of June last quha deceissed in the moneth of --- 1634 ffaithfullie
by past Faithfully made and given up by Margaret Lady Maid and given upe be…
Rutherford Relict of the said Defunct and Executrix Dative……11
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Testament from 1580 Inheritance in Scotland
Up until 1868 only moveable property could be included in a Scottish
Scottish rules of inheritance:
• difference between immoveable or heritable property and moveable
property (money, tools, furniture, animals etc).
• the law of primogeniture applied to heritage from 1868 until 1964 - the
eldest son inherited everything heritable.
• heritage (heritable property) could be bequeathed after 1868 but from
The testament testamentar and inventar of the gudes the early 1800s it is increasingly common to find dispositions,
gear summes of money and dettis p[er]taining to umquhile settlements, trust dispositions and settlements, etc. recorded by
an honourable lady Jonet Durie Lady Durie the (immoveable property, land and buildings), unless there had been a
tyme of her deceis quha deceist in the moneth of specific disposition or bequest
April the yeir of God 1576 and …
of her principall & final testament testamentar • all children had an equal share of moveables regardless of
and will confirmed be her executor faithfullie primogeniture
maid and given up be David Durie of that ilk
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(immoveables) Anything that could be picked up (clothes, household
and personal goods money, jewellery, investments,
Consisted of land and buildings as well as any minerals bank accounts, tools and machinery, animals, crops,
and mining rights, and passed to the eldest son (or books, papers and so on).
daughter if there was no son) by the law of It is referred to in Testaments as
Land and houses were included.
“goods, gear, sums of money and debts”.
This could be divided into a three parts at most:
Titles are heritable
• the widow’s part - jus relictae
The important sources for land and property information
• the bairns part - legitim (all children having an equal share)
are Charters, Retours of Services of Heirs and Sasines.
• the deid’s part (in other words, the dead person could
dispose of it according to his wish.
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Moveable property However...
•“Heritage” went to the eldest son, who was automatically barred
If survived by wife and children, 1/3 went to the widow, 1/3 was from receiving a share of the legitim but did inherit the heirship
divided equally amongst the children (or all to an only child), and the moveables (the best of the furniture, farming animals and
remaining 1/3 disposed according to any instructions the deceased implements, etc) so that the house and land were not an empty
gave in a will (testamentar). inheritance.
The widow’s and bairns’ parts were automatically vested in the wife •If there was no surviving wife the moveables were divided in two
and children without any need for these parts to be given up by the equal parts, one half to the children and the other to any persons
executor to the commissary court for confirmation. named in the deceased’s will.
However, the deid’s part required the court’s confirmation if not •If survived by a widow and no children the division was in two
stipulated in a will. halves - the widow’s part and the deid’s part
In the absence of any disposition this share was taken up by the •If no surviving wife or children the whole of the moveables were
deceased’s next of kin by confirmation. the deid’s part, bequeathed as per any will, a pre-existing marriage
In the absence of surviving wife or children, the next nearest of kin contract, bonds of provision for children of a marriage etc.
were deemed to be his surviving brothers and sisters by law and the •The moveable estate of a widow divided into two parts, legitim
estate would be distributed equally between them. and the deid’s part.
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Making sure it happened
On death, an executor was appointed to dispose of To settle affairs before death, it was possible to draw up
moveable property. a testament giving instructions about the disposal of
The executor may have been named in a will, or if not, possessions, naming an executor to administer the
appointed by a court. estate and so on.
If there was no will, the deceased was intestate. This is a Testament testamentar
Either way, the executor had to report to the court about However, the executor had to be confirmed by a court
the disposition of assets. The record of this process
and a document was drawn up (by the court) for this
would either be:
if the deceased left a will - a Testament Testamentar
if the deceased left no will - a Testament Dative
Most people did not leave a will, and most had very little to dispose If the deceased had died intestate (no will) a Testament
of. Where they exist, though, these records are a rich source of Dative was drawn up by the court
genealogical information as they give the names of heirs, friends,
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Testament testamentar Testament dative
- this was where the deceased died testate (left a If the deceased had died intestate (no will) a testament
testament). It typically had four sections: dative was drawn up by the court where the
1. an introductory clause deceased was intestate (had not left a will), and
2. an inventory of moveable estate (money, household served to appoint and confirm an executor on the
goods, furniture, animals, crops, tools and other court’s behalf. It had three parts:
personal possessions 1. introductory clause
3. a copy of the deceased’s latterwill (or ‘legacie’), with 2. inventory of possessions
his or her wishes as to disposal of the estate and 3. confirmation clause.
naming an executor (usually close family). If a copy The executor might be a family member, but if there
of the will is not included, there will be a reference to was considerable debt, the court might appoint a
where it was recorded (most likely in the court’s creditor as executor. If so, the testament would
Registers of Deeds). include a list of the debts and would allow their
4. a confirmation clause (equivalent of English probate) discharge to be authorised.
This is the equivalent of English letters of administration
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REMEMBER… TD 1759 - Introductory clause
1. introductory clause
2. inventory of possessions
3. confirmation clause
1. introductory clause
2. inventory of moveable estate
3. copy of the deceased’s will (or ‘legacie’), or
reference to where it was recorded (e.g. Registers of
4. confirmation clause
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Inventory TD 1759 - Inventar and Summa
This is a list of all the moveable property belonging to
the deceased at the time of death, as well as money
owed (to creditors) and due (from debtors). Sometimes
it only gives a short, total valuation, but in some
testaments it can be detailed, with every item listed and
valued. Where items were sold at a roup (auction) the
inventory will have a ‘roup roll’ itemising each lot, the
amounts paid and in some cases with the buyers’
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TD 1759 - Confirmation clause TT 1822 - Introductory clause
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TT 1822 – Legacie/Latterwill TD 1822 - Inventar and Summa
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Testament of Margaret Annand, 1573
TD - Confirmation clause
Follows the deidis latterwill and legacie At Leith the xxiii
day of Januar the yeir of god im vc lxiii yeiris the qlk day in
presence of me notar publict and witnesses underwritten
ane honorabill woman Margaret annand spous to Johne
Wardlaw in Leith haill in saule And mynd although vestit
be the hand of god in hir body makis hir latterwill &
testament in maner following. That is to say scho
committis hir saule to the mercie of almichtie god and
nominatis hir said spous hir onlie executor and intromettor
with hir gudis to be estimat be him self And levis to hir
bruther george annand twentie sex pu[ndis] xiii s iii d and
to hir sister Jonet annand fourtie pundis and the remanent
of hir pairt of the gudis to be devidit equalie amangis hir
thrie dochtiris and gif ony of thame happynis to deceis to
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• there was no legal requirement to make a will and few did. There was
Common words and phrases
also no legal requirement to use a court procedure and in most cases
the deceased’s affairs were settled without a testament, and no legal
Get to know and recognise the words and phrases you will find in each
clause, regardless of careless writing or abbreviations.
• eldest son would inherit all immoveable property (land, buildings) but if
he was not to receive any moveable property, his name might not Examples are:
appear in any will or testament (but may be the executor or cautioner) .
• Likewise, a wife, who would automatically get the widow’s part, may not cautioner decreet imprimis summa inventarij
be mentioned (but may be the executrix) citation defunct inventory testament
• in early testaments there will be no references to land and buildings Commissariot estimate and valued moveables testamentar
• From 1868 individuals could pass on heritable property (including land confirmed executor/executrix parish the time of his decease
and buildings) by a will. The elaborate procedures of Testaments and
services of heirs fell away. dated faithfully made and given up by pertaining and belonging toumqll (umquhile = deceased)
• BUT…sometimes it was necessary for a court to be involved years after dative foresaid relict underwritten
the death, in the event of a dispute, say, and so a will or testament may deceased goods, gear & debts Sherriffdom viz (videlicet)
exist but recorded at a later date
• The Deid’s Part (if any) HAD to be confirmed by a court
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The Courts Where to get wills
1.Commissariat records are available in most large libraries. Essentially an index.
2.Actual documents – All testaments and inventories (except Orkney and Shetland)
• Before the 1560s wills were Church records are with the NAS and some 500,000 have been digitised by the Scottish Archive
Network, NAS and Genealogical Society of Utah. They can be downloaded from
• After 1564 22 Commissary Courts were established – these bear Scotland’s People www.scotlandspeople.gov.uk (irrespective of size) at for £5
more relation to the pre-Reformation mediaeval dioceses (St ($10). A search of the index is free, after registration
Andrews, Dunkeld etc) rather than county boundaries. Testaments 1514-1901
• Up to 1823, testaments were recorded in the local Commissary At NAS - pay for print-outs but can view first
Testaments from 1902
Court which had jurisdiction over the deceased’s parish.
annual Calendar of Confirmations available at NAS (1901 to 1959 printed, from
• The Edinburgh Commissary Court was superior and could 1960 microfiche, computer index 1985-1996) and up to 1936 at the Mitchell
confirm testaments where the deceased had moveable property Library, Glasgow
in more than one commissariot, across commissariot boundaries Testaments from 1996
Commissary Department, Crown Office, Edinburgh Sheriff Court, 27 Chambers
and where a Scots died "abroad" (including England). Street, Edinburgh.
• From 1 January 1824 Commissary Courts ceased to exist and Locally held – especially Trust dispositions and settlements
Sheriff Courts took over confirmation of testaments (but there is Registers of deeds at the Court of Session, local commissary court (up to 1809),
some overlap during the hand over) local sheriff court or local Royal Burgh.
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Variants? 5 Variants
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Example of results Caveats
No Surname Forename Date Description Type Court Reference
OR BROWN, WIFE OF THOMAS
•There is no way of knowing whether the document relates to the
MOWBRAY, NASHVILLE COTTAGE,
correct person until it has been paid for and read (there are at least
DAVIDSONS MAINS, NEAR SC007000001- four John Smiths with testaments registered at the Edinburgh
1 MOWBRAY ANN 08/03/1878 SHERIFF COURT SC70/1/187
EDINBURGH, D. 15/10/1877 AT 00187-00753-
NASHVILLE COTTAGE AFORESAID,
INVENTORIES Commissary Court between 1740 and 1750).
INTESTATE • Check for both testaments and inventories, as a will is likely to
2 MOWBRAY ROBERT 23/02/1882
BANKER, LEITH, D. 05/10/1881 AT
SHERIFF COURT SC70/1/212
SC007000001- give names of family members whereas an inventory might only
LEITH, TESTATE 00212-00782-
INVENTORIES name the executor and possibly the relict.
SOMETIME RESIDING AT 15
• The will and inventory might not be registered under identical
MARY EDINBURGH, DAUGHTER OF THE SC007000001- names - Margaret Durie in one but Mgt. Dury in the other, or
3 MOWBRAY 07/09/1886 SHERIFF COURT SC70/1/252
CAMPBELL LATE ROBERT MOWBRAY,
00252-00105- alternate spellings of Mowbray and Moubray, for example.
MERCHANT, LEITH, D. 11/03/1886
AT EDINBURGH, INTESTATE • Check for Eiks (Iater additions)
OR BROUGHAM, SHANAKILL,
KILMACTHOMAS, COUNTY OF EDINBURGH
4 MOWBRAY ELEANOR 09/03/1888 WATERFORD, IRELAND, D. SHERIFF COURT SC70/1/264
01/07/1887 AT SHANAKILL INVENTORIES
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Trust dispositions and settlements
Unclaimed estates and Chancery
•The trust disposition let an individual specify the transfer of landed • England has a Chancery system where unclaimed estates can be
property to his named heirs. In effect, the ownership of the property held until claimed. There is no Scottish Chancery system of that
was transferred to a group of named trustees by a deed of trust type. If the beneficiary of a will could not be found, the property was
disposition. reported to the King’s (or Queen’s) and Lord Treasurer’s
•The granter retained certain powers and retained more or less Remembrancer (nowadays, the Crown Office) and known as bona
complete use of and control over the property. vacantia. Property would be sold off and the cash held until a
•Normally the deed was recorded only after death of the granter claimant appeared.
and often included a settlement of succession to the granter’s • If an individual died intestate and without known heirs, the
moveables. Because these documents did not have to be property fell to the Crown as ultimus haeres (‘the last heir’),
registered to have validity but could be registered in a number of advertised, and sold. After a decent interval it became ‘the Crown’s
places, they can be hard to track down. share’.
•A major landowner would probably use the register of deeds of the • There are records of bona vacantia and ultimus haeres in the
Court of Session in Edinburgh and most others would record the series of Exchequer records at the NAS, and are dealt with by the
disposition in the register of deeds of the local commissary court Crown Office in Edinburgh.
(up to 1809), the local sheriff court or the appropriate Royal Burgh. • Those who claim to be the heirs to unclaimed fortunes left in
•After 1868 inheritance was by conventional will. Chancery should be termed Chancers.
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Where to get help Where to get help
1150-1650: An http://www.nationalarchives.gov.uk/palaeography/
Introduction to the
Reading of Documents by
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Grant G. Simpson
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Examples of Testaments
•1759 Testament Dative & Inventory and 1760 Eik
George Durie Lord Rutherford
•1822 Testament Testamentar of Jean Birkmire,
Reference CC9/7/84 Glasgow Commissary Court
•1824 Trust Disposition & Settlement (English copy)
John Durie Merchant of Leith
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