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					                                                                                 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
                            Glasgow, Scotland
                                                                                                              Masters Degree (MSc)
                                                                                                               By Thesis
                                                                                                               Online
         Handout available at www.sog.org.uk
10/05/2007
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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
                                                                                matrimonial cases
     •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 -
                                                                                http://www.scotlandspeople.gov.uk/content/help/index.aspx?565

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                                                                                                                                                              1
                         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
   Session.
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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                                                                                                                                                       2
     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
    more difficult.
 • 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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                                                                                                                                      3
               Testament from 1580                                              Inheritance in Scotland
                                                                  Up until 1868 only moveable property could be included in a Scottish
                                                                  testament.

                                                                  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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                 Heritable property
                                                                                  Moveable property
                   (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
   primogeniture.
   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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                                                                                                                                                   4
                  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
                             Executry
    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:
                                                                                     purpose.
    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,
    relatives etc.

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                                                                                                                                                             5
              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
   Testament dative
   1. introductory clause
   2. inventory of possessions
   3. confirmation clause

   Testament testamentar
   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
      Deeds)
   4. confirmation clause

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                                                                                                                                              6
                       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’
   names.
                                                                                                      and more…




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      TD 1759 - Confirmation clause                                         TT 1822 - Introductory clause




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                                                                                                                       7
         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
WDYTYA 2010                              31   WDYTYA devidit to the remanent on lyf and levis hir abulyementis
                                                be 2010                                                           32




                                                                                                                       8
                        Remember...
• 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
  trace today
                                                                                    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

WDYTYA 2010                                                                   33     WDYTYA 2010                                                                                   34




                         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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                                              58                                                                                                      80


                                                                                           Variants?                                                                                5 Variants

                                                                                             Free to
                                                                                             search




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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,
                                                                              EDINBURGH
                                                                                                                          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
                                                                              EDINBURGH
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
                                      NORTHUMBERLAND STREET,
                                                                                                                          • The will and inventory might not be registered under identical
                                                                              EDINBURGH
              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,
                                                                             INVENTORIES
                                                                                                        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
                                                                                                        SC007000001-
4 MOWBRAY ELEANOR 09/03/1888           WATERFORD, IRELAND, D.                SHERIFF COURT SC70/1/264
                                                                                                        00264-00523-
                                       01/07/1887 AT SHANAKILL               INVENTORIES
                                        AFORESAID, INTESTATE




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                                                                                                                                                                                                        10
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.


   WDYTYA 2010                                                                  41      WDYTYA 2010                                                                  42




                    Where to get help                                                                    Where to get help




http://www.scottishhandwriting.com/

http://www.scotlandspeople.gov.uk/content/help/index.aspx?421
                                                                                     Scottish Handwriting:
                                                                                     1150-1650: An         http://www.nationalarchives.gov.uk/palaeography/
                                                                                     Introduction to the
                                                                                     Reading of Documents by
   WDYTYA 2010                                                                  43
                                                                                     Grant G. Simpson
                                                                                         WDYTYA 2010                                                     44




                                                                                                                                                                          11
                                 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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