1. The archives are not very helpful in terms of content:
a) Almost no arguments and motivation (except for some of the earliest records);
b) Very little litigation over succession.
I. Observations on the Legal Sources.
1. The archives are not very helpful in terms of content:
a) Almost no arguments and motivation (except for some of the earliest records);
b) Very little litigation over succession.
II. Observations on Legal Doctrine.
1. Scots law of the 17th century, in terms of terminology and concepts,
looked very similar to the Civilian systems, especially the Roman Dutch law.
Common law, decreet, interlocutor, adminicles, interest, annualrent
1. Scots law of the 17th century, in terms of terminology and
concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
2. The system of heritable succession in Scotland was much more Civilian than real estate succession in England (e.g., ‘service of
heir’ as ‘aditio hereditatis’). However, it was still very
different from a pure Civilian system (no transmission, no
II. Observations on Legal Doctrine.
1. Scots law of the 17th century, in terms of terminology and
concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
2. The system of heritable succession in Scotland was much more Civilian than real estate succession in England (e.g., ‘service of
heir’ as ‘aditio hereditatis’). However, it was still very different
from a pure Civilian system (no transmission, no renunciation of
estate).
3. The system of moveable succession through an executor was strongly influenced by Canon law, both before and after the
1. Scots law of the 17th century, in terms of terminology and
concepts, looked very similar to the Civilian systems, especially the Roman Dutch law.
2. The system of heritable succession in Scotland was much more Civilian than real estate succession in England (e.g., ‘service of
heir’ as ‘aditio hereditatis’). However, it was still very different
from a pure Civilian system (no transmission, no renunciation of
estate).
3. The system of moveable succession through an executor was strongly influenced by Canon law, both before and after the
Reformation. For example, the rules on transmission of the office of executor. Even the terminology was the same (“res integra”). 4. Some rules of Civil law exerted influence on Scots law in later
times, the 18th century (100 pounds rule, soldier’s will, ‘suus
III. Socio-Legal Observations.
1. Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
1. Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
2. Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
3. ‘Kindly tenancies’ were routinely disponed and settled by last wills
III. Socio-Legal Observations.
1. Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
2. Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
3. ‘Kindly tenancies’ were routinely disponed and settled by last wills
before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “bequestable”.
4. Legislation on succession in the 17th century (1621, 1661, 1695) was
1. Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
2. Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
3. ‘Kindly tenancies’ were routinely disponed and settled by last wills
before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “bequestable”.
4. Legislation on succession in the 17th century (1621, 1661, 1695) was
largely aimed at avoiding fraud to creditors by the heirs.
5. By the 18th century, converting estate into heritable property to
III. Socio-Legal Observations.
1. Everyone preferred to use will-substitutes, even in movable succession (dispositions, settlements, bonds of provision, gifts mortis causa). The judges either did not or could not resist this.
2. Succession provisions in marriage contracts were especially wide spread; litigation between parents and children was routine.
3. ‘Kindly tenancies’ were routinely disponed and settled by last wills
before the 1600s. Afterwards, however, they were recognized heritable property (like all leases) and ceased being “bequestable”.
4. Legislation on succession in the 17th century (1621, 1661, 1695) was
largely aimed at avoiding fraud to creditors by the heirs.
5. By the 18th century, converting estate into heritable property to
facilitate disposability was a routine practice. Classification of certain bonds as heritable made this easy.
6. Legislation of 1690, 1693, 1695, 1700 sharply restricted the powers of commissary courts. As a consequence, the standard executorial
procedure diminished in importance in the 18th century (incomplete
inventories, no oath). The 19th century legislation aimed at correcting
