SUMMARY OF THE LAW OF INTESTATE SUCCESSION IN SCOTLAND. GENERAL SURVEY OF THE LAW. 1. Early History.-The early history of the Law of Intestate Succession in Scotland is involved in obscurity. Attempts to trace it have been made at various times by several jurists of eminence, but all have formed conflicting opinions. Generally, however, the researches of these jurists tend to show that at first intestate succession in Scotland was governed by considerations of equity and expediency, having regard to the state of society and civilisation, and varying from time to time; that, by-and-by, a custom sprang up, which gradually ripened into fixed rules; and that these rules, again, formed the groundwork of enactments or regulations of the Scottish Parliament, and became assimilated with other rules borrowed from the Roman, Canon, and Feudal Laws. (a) This, at least, may be said of intestate succession in heritable estate. As regards personal estate, there can be no doubt that, for a long time anterior to the era of the Reformation, the Canon Law(b) furnished the rule of distribution, and was administered by the prelates of the Roman Catholic Church, who, it (a) Stair, 1, 1, 15 et seq., Ersk. 1, 1, 27 et seq. See also Fergusson's "Consistorial Law;" the Register of the Privy Council of Scotland, of which five volumes already printed, commencing with the year 1545, and brought down (1882) to 1599; the printed Register of the Great Seal of Scotland, beginning with the year 1424 and continued to 1513; also the printed Calendar of Documents relating to Scotland, preserved in London, beginning with the year 1108 and brought down (1881) to 1272. (b) The Canon Law consists of the decretum, a collection of Church laws made in the twelfth century in imitation of the Roman Pandects, and of the decretalia, collected from the Epistles of the Popes.-Stair, 1, 1, 14. B seems, gradually assumed, without ever having been invested by legislative authority, the prerogative of naming officials or commissaries within their several provinces or dioceses. Brief notices of the Law of Succession are to be found in the Scottish Chronicles, and in the Records of Proceedings, and fraginents of Acts of the Scottish Parliament which commence with the twelfth century, but from various causes, these cannot now be accepted as authentic. The earliest authentic notices are contained in the older editions of the Scottish Acts, which begin in 1424, in the reign of James I. These notices are very scanty; but this is not surprising in view of the manner in which justice was administered in Scotland for ages previous to the Reformation. All Scottish Acts now derive their authority as law, not so much from the circumstance of their having been made or passed by the Scottish Parliament, as from their having been brought down to our time by an uninterrupted train of practice. It is to this train of practice, therefore, we must now mainly look in an attempt briefly to present the law which has culminated in our present system. Not much is to be learned from our Statute Book; two short enactments embrace the product of nearly three centuries. REGIAM MAJESTATEM. 2. Earliest Legal Digest.—The earliest work(c) which professes to give a comprehensive digest of the Law of Scotland is the "Regiam Majestatem; or, Books of the Majesty." It is in four parts; and to the English translation published in 1774, there are appended the "Quoniam Attachiamenta; or, The Baron Laws;" the "Form and Manner of the Baron Court; " the "Laws and Constitutions of Burghs;" and a collection of various statutes and forms of process. It bears to embody the "Auld Laws and Constitutions of Scotland, from the days of King Malcolm the Second until the time of King James the First." It is believed to have been compiled in the reign of King David I. But eminent jurists are not agreed as to this. Some assign it to an earlier period. This, however, seems to be a mistake, as it refers to the civil law; (c) On the early history of the law of succession in other countries, see Maine's "Ancient Law," 1861; also Bar's "International Law," 1883. For an epitome of the succession laws of Christian countries, see Eyre Lloyd's Manual, 1877. and it is well known that the civil law, after being buried in oblivion for ages, was not restored until a copy of the Pandects or Digest of Justinian was found in Italy in 1127.(d) That Digest was not taught at Oxford until 1150, and it must have been some time after this when it found its way into Scotland. The Regiam Majestatem was not printed until the year 1609, in the reign of James VI. The publisher was Skene, the Lord Clerk Register, who was called to the Bar in 1574. He was appointed by the king to publish the Laws of the Realm; but having, unfortunately, views of his own to advance in connection with the dependency of the Scottish monarchy, he opened the door to doubt as to the date of the work, and as to when it came to be adopted as an authority in the Law of Scotland. (e) The authenticity of the Regiam Majestatem has been the subject of much controversy. On the one side, Sir John Skene and Professor John Erskine, followed by many other writers, have declared themselves in favour of the authenticity of the work, contending that it forms a genuine code of the laws of Scotland promulgated by order of David I. On the other hand, Sir Thomas Craig, Lord Stair, Lord Hailes, with several others of note, express the opinion that the Regiam Majestatem has been copied from the Regiam Potestatem, a Digest of the English Law, written by Glanville, who was ChiefJustice of England from 1180 till 1189. This matter will be found fully discussed in "Lectures on the Law of Scotland," by Walter Ross, W.S., 1792, and in a recent address on the Historical Study of the Law, by the Right Honourable John Inglis, Lord President of the Court of Session.(ƒ) From whatever source taken, however, it is unquestionable that (d) Justinian's body of Roman law was compiled about the year 533. It consists (1) of the Institutes, in four books containing the principles of the law; (2) of the Digest or Pandects in fifty books, containing the opinions. and writings of eminent lawyers, extracted from 2000 volumes; (3) of the new Code, in twelve books, containing a collection of Imperial Constitutions; and (4) of the Novels or Novel Constitutions, which, to the number of 168, were enacted by Justinian after the publication of the Code. the Regiam Majestatem had been recognised by the Scottish Legislature for several centuries, as containing an outline of what was, at one time, the Law of Scotland.(g) We shall here, therefore, present the rules of law in succession as laid down in that work, noting in footnotes the changes that have since been made thereon. After an explanation "of the Quality and Difference of Heirs," the law is stated thus: 3. The Succession of the Son to the Father.'-(1.) If any man having heritage deceases, and has but one son, without any distinction the son succeeds to all his father's heritage, whether he be born of the first wife, the second wife, or the third wife.(h) (2.) And, therefore, if a man has had many wives, and with each one of them has gotten daughter or daughters, and with the last wife has gotten a son, that son only shall succeed to all his father's heritage and lands.(?) 4. Of the Succession of Sons to the Father.2-(1.) If a man deceases, leaving behind him more sons than one, a distinction is to be observed, whether the father was a knight,(k) having lands holden by knights' service (that is, by service of ward (1) and relief), or a soccoman.(m) (2.) If the father was a knight, in that case his eldest son succeeds to all his heritage, and none of the rest of his brothers may crave any part thereof.(n) (3.) If the father was a free (g) Acts 1425, c. 54; 1487, c. 115. (h) If the wife survive, the right of the heir is subject to terce, § 261. (i) See note (h). For rules in Stair, see § 21; Mackenzie, § 28; Erskine, §§ 40, 41; Bell, § 70, infra. (k) Knightship was the highest rank of a commoner, Bank. 1, 53. (1) Wardholding was formerly the military tenure of Scotland. The ward and marriage of the heir were two of its casualties, and were of the most oppressive kind. The holding was abolished by 20 Geo. II. c. 20; | where of the Crown, it was converted 1 R. M. 2, 26; soccoman, the heritage shall be into blench, and where of a subjectsuperior, into feu-holding. (m) A soccoman was one who held in blench or feu, the return being agricultural services to the superior. In this tenure there was originally no primogeniture; the children succeeded equally, according to the rules of the Civil Law.-Reg. Mag. 2, 21; Bank. 3, 4, 17; Ersk. 1, 1, 35. The distinction in this section does not now exist, § 246. (n) The eldest son's right may be subject to the burden of terce. See § 261. Glan. 7, 3. divided amongst all his sons by equal parts, if in old times that soccage was divided ;(0) (4.) Reserving always the chief messuage(p) to the eldest son, in respect of the dignity of his birthright, for the which he shall satisfy his brothers according to the value thereof.(q) (5.) If it was not in old times divided, then by the consuetude of some, the eldest son is heir of all the heritage; and by the consuetude of others, the second son is heir.(r) (6.) But if a soccoman has one son only, he shall be heir in all. 5. The Daughters succeed to the Father.'-(1.) If there be a daughter, the like is to be said of her as is said of a son. (2.) If there be more daughters than one, the heritage shall be divided amongst them, whether their father was a soccoman, or a knight, or a burgess, or any other free man; (3.) Reserving the chief messuage to the eldest daughter in manner foresaid.(s) (4.) It is to be observed that, if any of the brothers or sisters amongst whom the heritage was divided happens to decease without heirs of his body lawfully gotten, his or her portion shall be divided amongst the rest of the brothers or sisters who remain living.(t) 6. The Son excludes the Daughter.2-(1.) If a man have a son, and also a daughter, or daughters, the son succeeds to all his heritage ;(u) (2.) Because it is generally true that a woman is never partaker of any part or portion of heritage with a man. (3.) And so the son born of the first wife, second wife, or last wife, succeeds to all and whole his father's heritage, and excludes all his sisters therefrom. 7. In what manner the Daughters of Sundry Wives (0) See note (m). Distinction abol ished. Eldest son or heir-at-law ex cludes the other children, § 246. (r) See note (o). Stair speaks of Customs-i.e., the common law; but states the rule as then fixed that eldest son excludes the other sons, and that daughters succeed equally. Stair, 1, 1, 16. (s) The eldest daughter now gets more than the mansion-house, § 247. (t) No division now, except where females succeed, §§ 246, 247. For rules in Stair, see § 26; Erskine, § 48; Bell, § 70. (u) See note (n), p. 4. |