becomes a vitious intromission. The only exception is
made in the case of privileged debts, which are death-
bed and funeral expenses, a year's rent, servants' wages
for a year or less term, and the expenses of con-
firmation. Debts due by an officer of a friendly society to
the society, and of a clergyman of the Church of Scotland
to the Widows' Fund, are also privileged. Confirmation
of testaments of moveables originally fell, as in England,
under the cognisance of the church courts, and was ex-
CONFIRMATION 197
pressly recognised as part of the ecclesiastical jurisdiction
by Regiam Majestatem. This ecclesiastical jurisdiction,
continued through the Commissary Courts at Edinburgh
(constituted by Queen Mary in 1563) and the local
commissaries until modern times, when the rights of
these courts were first transferred and then abolished
by a series of enactments from 4 Geo. IV, c. 97, to the
Sheriff Courts Act, 1876. The act of George IV placed
the commissary jurisdiction in the sheriff courts ; by the
Act of 1876, the sheriffs sit as sheriffs in testamentary
matters, no longer as commissaries. Commissary clerks
(except the commissary clerk of Edinburgh) were
abolished by the Act of 1876. Confirmation, where
the whole moveable estate does not exceed 300, is
regulated by 44 Viet., c. 12, as in England. It is
granted, whether on a will or an intestacy, by the
sheriff clerk. The fees and stamp-duty are the same
as in England. 1 An eik is an addition to a confirmation
made on discovery after confirmation of additional effects
of the deceased.
The duties payable to the revenue are the same as
in England. It has been held that "disposition," as
used in the Succession Duty Act, 1853, is a general term
for any alienation, and is not confined to a disposition
in its technical meaning in Scotch law. In addition to
duties to the revenue, casualties may be payable to the
superior. By the Conveyancing Act, 1874, the only
casualties that can now be stipulated for on the succes-
sion of an heir or the acquisition of a singular successor
are to take the form of a fixed sum, payable at fixed
1 The act of 1881 superseded previous acts of 1875 and 1876,
under which the powers of the sheriff clerk were limited to estates not
exceeding 150.
198 SCOTLAND
intervals. By the interpretation clause of the act
"casualties" includes only relief and composition, and
sums payable in lieu of these. Casualties created prior
to 1st October 1874, and payable on the death of the
vassal, may be redeemed. The Conveyancing Act, 1887,
enacts that where heritable estate is conveyed to trustees
for the benefit of the heir of the testator, the casualty
payable by the heir is to be the same as would have
been payable had he taken the estate by direct suc-
cession. Provision is made by the Local Government
(Scotland) Act, 1889, Part II, for the payment of part
of the probate duties for certain purposes therein
mentioned, the most important being the relief from
payment of school fees in state-aided schools in
Scotland.
Vitiation of a will, or wilful destruction or mutilation
of testamentary documents, if done to suppress evidence,
is a crime.
Lands vested in the Church were held to have been
given for superstitious uses, and were by the Act 1587,
c. 29, vested in the Crown. But mortifications of land
may still be made for the use of a charity, to be held by
the trustees of the charity in feu or in blench, subject
to the general control of the Court of Session under its
nobile ojfidum. A conveyance of lands (which includes
a mortis causd conveyance) duly recorded, made for re-
ligious or educational purposes by s. 29 of the act of
1868 vests not only the disponees but also their suc-
cessors in the lands. By s. 113 of the same act, a sum
in lieu of casualties is leviable on charity lands by the
superior every twenty-five years. The Mortmain Acts
do not apply to Scotland. Scotch law docs not " abhor
|>eri>etuitie8," and an cnfcvil containing prohibitory, irri-
MORTMAIN CONSTRUCTION 199
tant, and resolutive clauses 1 could not have been defeated
until the Rutherford Act (11 and 12 Viet., c. 36). By
the same act the Thellusson Act was repealed as far as
related to Scotland, the act as it originally stood having
extended to the whole of Great Britain.
The Married Woman's Property (Scotland) Acts, 1877
and 1881, have enabled a married woman to dispose
of her property by will, but to an extent much more
limited than that given by the English Act of 1882.
The Act of 1877 applies only to wages and earnings of
a married woman, or any money or property acquired
by the exercise of any literary, artistic, or scientific
skill. The Act of 1881 applies only to moveables and
the rents of heritable property. In these cases only is
the jus mariti excluded (unless, indeed, it be excluded
by express provision).
Rules of construction have been of use chiefly in
determining the destination of moveables or heritage,
especially the latter. They are in general accordance
with those recognised in English law, but there are of
course some special ones depending on the technicalities
of the Scotch system. Thus before the distinction be-
tween fees of heritage and fees of conquest was abolished
by the Conveyancing- Act, 1874, a destination to "A
and his heirs of line " carried the property to the heir of
heritage to the exclusion of the heir of conquest. " Heirs
female " carries the estate to a son's daughter rather than
to a daughter. In "heirs and children" heirs is the
ruling term, and the estate goes to the eldest son. The
rule in Shelley's Case does not apply in Scotland. Jus
accrescendi is always a question of intention. That is, it
1 A clause authorising registration in the Register of Entails is now
equivalent to these clauses.
200 SCOTLAND
depends on the intention of the testator to be gathered
from his disposition whether, when a gift is provided to a
class and one of the class dies, his share is to go to the sur-
vivors or to his personal representatives. The doctrine
of radical right is an important rule of construction. It
is to the effect that, where the trust does not exhaust the
estate, the truster retains the radical title. It has been
a question, often difficult of decision what words give the
beneficial interest to the grantee and what words on the
other hand make him simply a trustee. In some cases rules
of construction depend on statute. An example is s. 28
of the act of 1874, enacting that where no term of entry
is stated in a conveyance, the entry shall be at the first
term of Whitsunday or Martinmas. The doctrine of
cy-prh is recognised in Scotland. The principles of its
exercjse are in effect the same as those acknowledged
in England.
The law of intestate succession differs in many
respects from that in use in England ; the right, how
ever, of the eldest son to succeed to heritable property
is the same in both systems. A distinction is drawn
in Scotland between universal and singular succes-
sion, the former being the succession of the heir,
like that of the Roman heres, to the whole inherit-
ance ; the latter the succession of a disponee by title of
purchase, such as a legatory. The law regulating intes-
tate succession depends partly on common law, partly on
statute, and is different with regard toheritables and move-
ables. In heritables (which include leaseholds) the succes-
sion opens first in favour of descendants, the eldest son, 1 if
1 It should be noticed that by the Scotch doctrine of Irgilimatio prr
tuhtfqurns matrimoniiim an eldest son might become heir who would
not tw entitli-d to .su<-<-<-i <l in Kn^lniid. See the CMC of Doe v.
IWr/,7/, p. 185.
INTESTATE SUCCESSION 201
there be one, taking all. Female descendants in the
same degree of relationship succeed as heirs-portioners
in equal shares, but the eldest has the mansion-house as
her prcedpuum and also any title of honour or dignity
descendible from the intestate. Next come collaterals,
brothers and sisters, a younger brother (in cases of suc-
cession to a brother) taking in preference to an elder.
Then come ascendants, the father taking first, after him
his brothers and sisters, then the grandfather, and so on.
There is no succession through the mother. The full-
blood is preferred to the half-blood. The Crown takes as
ultimus heres in default of relations. Since the act of
1874, s. 37, the distinction previously existing Between
succession to fees of conquest and succession to fees of
heritage has ceased to exist. The right of any person
to an estate in land by succession as heir may by s. 13
of the same act be challenged within twenty years of
his infeftment as heir and his entering into possession.
The heir-at-law of a sole or last surviving trustee, being
of full age and not subject to any legal incapacity, may
by s. 43 complete a title to the land held in trust.
The heir on the death of the ancestor does not, as in
England, attain his full rights by simple survivorship.
The Scotch theory of law is the same as the Eoman.
The inheritance is only offered to the heir, and he must
do some act from which acceptance of it may be presumed.
He has six months (before the act of 1868 it was a year
and a day) to deliberate whether he will accept the
inheritance. Should he decide to accept, his title must
be completed by service as heir, by adjudication on a
trust bond, or (in case of lands held of a subject superior)
by writ or precept of dare constat, a mode of admission
by the superior. Service is either general or special,
VOL. i 14
202 SCOTLAND
general where the ancestor was not infeft, special where
the ancestor was infeft. Up to 1847 service depended
on the verdict of a jury. The procedure has recently
been much simplified, and now depends mainly on the
acts of 1868 and 1874. Both kinds of service now pro-
ceed by decree on petition to the sheriff of chancery or
the sheriff of a county, subject to appeal to the Court of
Session. 1 No court need be held when the petition for
service is unopposed. A decree of general service is by
s. 31 of the act of 1874 equivalent to a mortis causd
general disposition, and by s. 9 of the same act the
heir obtains a personal right to the land descendible by
mere survivance without service. The personal right
may be completed by petition in accordance with the
act The right of the heir once vested cannot be
divested ; semel fieres semper heres.
In moveables the law of succession is in agreement in
the main with that of England. The principal difference
is the rule of collation, under which the heir cannot take,
as in England, both as heir and next of kin, but he must
make his choice, and if he choose the heritable estate, he
cannot in addition have his whole share of the moveables.
If the heritable estate exceed his share of the moveables,
he takes none of the latter, if it be smaller, he only
takes enough of the moveables to make his share equal
to that of the rest. The half-blood succeeds next after
the whole blood, not pan jxissu as in England. The
father takes one-half in preference to the brothers and
sisters, the mother one-third if she survive the father.
A right of representation among next of kin and
1 Forms of service, varying as it is general or special, as the heir is
heir of provision, of tailzie, etc., are given in schedules (P) and (Q)
of the act of 1868.
INTESTATE SUCCESSION 203
heirs of moveables was first given by 18 and 19 Viet.,
c. 23. The right to heirship moveables was abolished
by s. 160 of the Act of 1868. The husband or wife of
the deceased has a right to a certain share of the
moveables, as has already been stated. Provision is
made by the Presumption of Life Limitation (Scotland)
Act, 1881, for the disposal of both heritable and moveable
estate where the person entitled to it has been absent from
Scotland or has disappeared for a period of seven years
or upwards. Any person entitled to succeed may present
a petition to the Court of Session or (where the value of
the estate does not exceed 150) a sheriff court, and the
court may grant authority to the petitioner to uplift and
enjoy the income, or may sequestrate the estate and
appoint a judicial factor. After fourteen years' absence
in the case of moveables, twenty years in the case of
heritables, the court may grant authority to the
petitioner to make up a title to the property as though
the absent person were dead.
CHAPTER XVIII
IRELAND
THE will was known to the Brehon law ; it was probably
of purely ecclesiastical origin, and seems to have been
used only for naming a place of burial. 1 The rules of
inheritance among the native Irish were up to the seven-
teenth century considerably different from the English
rules. Sons succeeded according to the custom of gavel-
kind, and illegitimate took their shares with legitimate,
daughters being entirely excluded. The chieftain of a
sept had his successor nominated during his lifetime, the
successor-elect being known as the tanist, and being
generally the eldest male of the sept, provided that he
was otherwise worthy of the office. Gavelkiml was
declared void by a resolution of the Irish judges in
1605, 2 and tanistry by a case decided in the Irish Court
of Queen's Bench in 1608. 3 The intention evidently
was to suppress as barbarous the native Irish customs and
to assimilate the law of succession to that of England.
1 Senchns Mor, vol. i. 203 (in the series of Ancient Laws of
Ireland).
* Sir J. Davis* Rep., 49. The tenure of gnvelkind was temporarily
revived in Ireland by the Irish Act of 2 Anne, c. 6, which enacted
that the lands of a Roman Catholic should on his death be divided
among the sons as in gavelkind, but one son becoming a Protestant could
take all. This was repealed by the Irish Act of 17 and 18 Geo. Ill,
c. 49. Sir. J. Davia' Rep., 28.
ACCORDANCE WITH ENGLISH LAW 205
The law at present is in general accordance with
that of England, much of the earlier English legislation
having been followed by similar legislation of the Irish
Parliament, e.g. the Statute of Frauds by 7 Will. Ill, c.
12, and much of the later legislation, such as the Wills,
Conveyancing, and Settled Land Acts applying to Ireland
with certain modifications, chiefly in matters of practice.
For instance, the registrar of an Irish civil bill court
corresponds to the registrar of an English county court,
and some matters which would be in the jurisdiction of
the Chancery Division in England are in that of the
Land Judges in Ireland. The earliest Irish act dealing
with wills was passed in 1537 (28 Hen. VIII, c. 18),
and followed the English act of Edward III as to
the fees for probate demandable by the ecclesiastical
courts.
The main differences between English and Irish law
are found in mortmain, accumulation, superstitious uses,
registry, and devolution of tenancies. The earlier
English Mortmain Acts passed before Poyning's Law
(10 Hen. VII, c. 22) were introduced into Ireland by
that law, but later acts, 9 Geo. II, c. 36, and the
Mortmain Act of 1888, do not apply to Ireland. 1 The
Thellusson Act of 1800 does not apply to Ireland. The
list of charitable uses mentioned in the preamble to 43
Eliz., c. 4, was copied, but not exactly, in the Irish act
of 10 Car. I, sess. 3, c. 1, with an important limitation
to archbishops and bishops of the right of making
grants for charitable purposes. Bequests for masses for
the souls of the dead are not void as superstitious.
1 See the judgment of Lord St. Leonards as Lord Chancellor of
Ireland in Incorporated Society v. Richards, 1 Drury and Warren's
Rep., 258 (1841).
206 IRELAND
They may, however, be void if they tend to perpetuity,
as they are not charitable gifts. They tend to perpetuity
if they are made to a religious community, not only
the existing members, but also their successors, during a
period which may extend beyond the limits prescribed
by the rule against perpetuities. A registry of memorials
of wills of real estate was established in Ireland by the
Irish act of 6 Anne, c. 2. It is interesting to note
from the preamble that one of the main reasons for
passing the act was " for securing purchasers, preventing
forgeries and fraudulent gifts and conveyances of lands,
tenements, and hereditaments which have been frequently
practised in this kingdom, especially by papists, to the
great prejudice of the Protestant interest thereof."
The practice of the register office now depends on 2 and
3 Will. IV, c. 87, as amended by subsequent acts.
Registration, as far as it relates to wills, is -facultative,
not imperative. In addition to registration as a means
of facilitating evidence, wills were often made evidence
by private acts of the Irish Parliament. By the Land
Law (Ireland) Act, 1881 (44 and 45 Viet,, c. 49, s. 3),
a tenancy within the act may be bequeathed, and the
landlord is bound, subject to objection on reasonable
grounds, to accept the legatee as tenant or (in case the
tenant dies intestate) the nominee of the personal re-
presentatives of the tenant. Where the tenant dies
intestate and without leaving any person entitled to his
personal estate, the tenancy passes to the landlord,
subject to the debts and liabilities of the deceased
tenant.
A Court of Probate was established in Ireland in
1857 by 20 and 21 Viet, c. 79. There is a principal
registry at Dublin and district registries at Londonderry,
PROBATE 207
Belfast, Armagh, Ballina, Cavan, Tuam, Mullingar,
Kilkenny, Waterford, Limerick, and Cork. The Court
of Probate was merged in the High Court of Justice by
the Irish Judicature Act, 1877 (40 and 41 Viet., c. 57).
Contentious jurisdiction was given to the civil bill
courts in testamentary matters by 14 and 15 Viet., c.
57, 20 and 21 Viet., c. 79, and 22 and 23 Viet, c. 31.
It extends to cases where the personalty of the deceased
is under 200 and he is not beneficially entitled to real
estate of the value of 300. The same courts have by
40 and 41 Viet., c. 56, and 45 and 46 Viet., c. 29, juris-
diction in administration actions where the amount does
not exceed 500 of personal or 30 of real estate. An
appeal lies in most cases to the judge of assize.
The law as to intestate succession and the revenue
duties are the same as in England. By the Probate
Duties (Scotland and Ireland) Act, 1888, 1 one-fifth of
the probate duties is assigned for the relief of local
taxation in Ireland.
1 Repealed as to Scotland by the Local Government (Scotland)
Act, 1889.
APPENDIX A.
Ix the following Acts of Parliament only those sections
which are still law and which immediately affect the subject
of this volume are set out fully.
WILLS ACT, 1837
(7 Will. IV, and 1 Viet., c. 26)
BE it enacted by the Queen's most Excellent Majesty, by Meaning
and with the Advice and Consent of the Lords Spiritual and words*!"
Temporal, and Commons, in this present Parliament as- this Act :
sembled, and by the Authority of the same, That the Words
and Expressions hereinafter mentioned, which in their
ordinary Signification have a more confined or a different
Meaning, shall in this Act, except where the Nature of the
Provision or the Context of the Act shall exclude such
Construction, be interpreted as follows ; (that is to say), the
Word "Will" shall extend to a Testament, and to a Codicil, "wui:"
and to an Appointment by Will or by Writing in the Nature
of a Will in exercise of a Power, and also to a Disposition by
Will and Testament or Devise of the Custody and Tuition
of any Child, by virtue of an Act passed in the Twelfth Year
of the Reign of King Charles the Second, intituled An Act 12 Car. 2.
for taking away the Court of Wards and Liveries, and c> 24 '
Tenures in capite and by Knights Service, and Purveyance,
and for settling a Revenue upon His Majesty in lieu thereof,
or by virtue of an Act passed in the Parliament of Ireland
in the Fourteenth and Fifteenth Years of the Reign of King
Charles the Second, intituled An Act for taking away the u & 15
Court of Wards and Liveries, and Tenures in capite and ^\' 2>
210 WILLS ACT
by Knights Service, and to any other Testamentary Dis-
"Rai position; and the Words "Real Estate" shall extend to
Manors, Advowsons, Messuages, Lands, Tithes, Rents, and
Hereditaments, whether Freehold, Customary Freehold,
Tenant Right, Customary, or Copyhold, or of any other
Tenure, and whether corporeal, incorporeal, or personal, and
to any undivided Share thereof, and to any Estate, Right, or
Interest (other than a Chattel Interest) therein ; and the
" Per- Words " Personal Estate " shall extend to Leasehold Estates
Estate:" and other Chattels Real, and also to Monies, Shares of
Government and other Funds, Securities for Money (not
being Real Estates), Debts, Choses in Action, Rights, Credits,
Goods, and all other Property whatsoever which by Law
devolves upon the Executor or Administrator, and to any
Share or Interest therein ; and every Word importing the
Number : Singular Number only shall extend and be applied to several
Persons or Things as well as One Person or Thing ; and
Gender, every Word importing the Masculine Gender only shall ex-
tend and be applied to a Female as well as a Male, . . .
AH Pro- HI. And be it further enacted, That it shall be lawful
inny'be f r every Person to devise, bequeath, or dispose of, by his
disposed Will executed in manner hereinafter required, all Real
win 5 ! Estate and all Personal Estate which he shall be entitled to,
either at Law or in Equity, at the Time of his Death, and
which, if not so devised, bequeathed, or disposed of, would
devolve upon the Heir-at-Law or Customary Heir of him,
or, if he became entitled by Descent, of his Ancestor, or upon
his Executor or Administrator ; and that the Power hereby
fng'&u 8 " Riven shall extend to all Real Estate of the Nature of
toinary Customary Freehold or Tenant Right, or Customary or
houii Copyhold, notwithstanding that the Testator may not have
Copy- surrendered the same to the Use of his Will, or notwith-
h.i<is standing that, being entitled as Heir, Devisee, or otherwise
without fo ^0 a j, n jtted thereto, he shall not have been admitted
render thereto, or notwithstanding that the same, in consequence of
""fore the Want of a Custom to devise or surrender to the Use of
uiice 1 " a ^ '^ or otherwise, could not at Law have been disposed of
mi aUo by Will if this Act had not been made, or notwithstanding
then/aa that the same, in consequence of their In-ing a Custom that
rnni>t a Will or a Surrender to the Use of a Will should continue
IicTucd ; in force for a limited Time only, or any other sj>ecial Custom,
WILLS ACT 211
could not have been disposed of by Will according to the
Power contained in this Act, if this Act had not been made ;
and also to Estates pur autre vie, whether there shall or Estates
shall not be any special Occupant thereof, and whether ^" ; aui
the same shall be Freehold, Customary Freehold, Tenant
Right, Customary, or Copyhold, or of any other other Tenure,
and whether the same shall be a corporeal or incorporeal
Hereditament ; and also to all contingent, executory, or other contin-
future Interests in any Real or Personal Estate, whether the forests' 1 ;
Testator may or may not be ascertained as the Person or
One of the Persons in whom the same respectively may
become vested, and whether he may be entitled thereto
under the Instrument by which the same respectively were
created or under any Disposition thereof by Deed or Will ;
and also to all Rights of Entry for Conditions broken, and
other Rights of Entry ; and also to such of the same Estates, and Pro-
Interests, and Rights respectively, and other Real and Per- acquired
sonal Estate, as the Testator may be entitled to at the after
Fxpcii-
Time of his Death, notwithstanding that he may become tion of
entitled to the same subsequently to the Execution of his the WUL
Will.
IV. Provided always, and be it further enacted, That ^ s to th ^
where any Real Estate of the Nature of Customary Freehold Fines
or Tenant Right, or Customary or Copyhold, might, by the P^ able
Custom of the Manor of which the same is holden, have Devisees
been surrendered to the Use of a Will, and the Testator tomary
shall not have surrendered the same to the Use of his Will, and
no Person entitled or claiming to be entitled thereto by virtue hold
of such Will shall be entitled to be admitted, except upon Estates
Payment of all such Stamp Duties, Fees, and Sums of Money
as would have been lawfully due and payable in respect of
the surrendering of such Real Estate to the Use of the Will,