The Influence of Jus Commune on the Scottish judicial practice on succession to movables in 1560-1660

The influence of Jus Commune on the Scottish judicial practice on succession to moveables in 1560-1660

By Ilya A. Kotlyar, University of Edinburgh ©

1. Subject of research

and materials.

2. Methodology.

3. Archival work: the

outcome

4. Constitution and

form of the last wills.

5. Evidential force of

the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession

(pacta successoria).

8. Substitutions and

destinations.

9. Office of executor.

Th. Craig J. Dalrymple,

Viscount of

Stair

G. Mackenzie

1. In the 1560-1660 period, only the 1620-1642 interval was comprehensively covered by the

case reports.

2. After the Restoration in 1660 the Court of Session was reestablished, new judges

appointed. The case reporting became much more systematic.

3. This necessitated extensive use of post-1660 reports and literature in my research.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


1560 1600 1620 1640 1650 1660 1690

1660 Restoration.

Court of Session

reestablished

1654- 66 O. C o ell’s occupation of Scotland.

Court of Session abolished.

Commission of the English

judges operates instead.

1560 Reformation.

Former Catholic

Consistories taken over

by new Commissary

courts.

1689 Glorious

Revolution.

Authority of

Commissaries

curtailed.

Rudimentary reports by Maitland,

Colvil, Haddington.

Reports by

Dury,

Auchinleck.

Reports by Stair,

Dirleton, Gosford,

Harcarse, etc.

Originality of research: the history of the law of succession was not an object of scholarly interest until recently.

1. The only thesis dedicated to the history of private law of succession in Scotland (Gardner 1927) concentrated on the Medieval origins of the rights of surviving spouses and children.

2. Other literature is restricted to articles (Wilson 1894, Wilson 1901, Anton 1955, Stein 1963, Gordon 1969, MacDonald 2001, Paisley 2015). In recent years the comparative dimension became the most popular (Gretton 2007, Reid 2011-15, Gretton 2014).

3. Ro a la … has had o sidera ly ore i flue e upo E glish succession law, than it has had with us Wilso – unsubstantiated claim, telling more about the perceived inflexibility of Scots law of succession than about a real historical development.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Specific branches of succession law: the obvious and well-known examples of influence were excluded.

1. Significant Jus Commune influence in some areas of Scots succession law has always been obvious.

2. E.g, in the field of interpretation and vesting of legacies, Civilian influence was so strong in the 18th century that judges often applied it reluctantly.

Lo d B a field: I should be against the legacy, had I never heard of the civil law,

and I own that the civil law speaks less sense in this case than in many others (Burnets v. Forbes, 1783, Stein 1963).

3. Instead of dealing with the well-known examples, I concentrated on the more obscure ones, in the fields you may see on the left, highlighted bold.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


1. In the field of methodology, only the doctrinal legal historical method has proven effective so far.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


2. Quantitative method has

only allowed to solve a minor

question of the jurisdictional

change brought by 1609 Act.

The sudden drop in the number

of Edinburgh testaments

confirms the change in the

Edi u gh Co issa ’s jurisdiction.

3. The proportions of forms of last wills from 1560-1580s were counted. A

notarial will turned out a prevailing form in that period.

0.00

1000.00

2000.00

3000.00

4000.00

5000.00

6000.00

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Testaments in General

Testaments Edinburgh

Testaments Aberdeen

Testaments Argyll

Testaments Brechin

Testaments Caithness

Testaments Dumfries

Archival work: the outcome 1. Subject of research

and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


1. The archival Act Books of

the Commissary Courts

turned out less informative

than I expected.

2. The Commissary Courts’ p a ti e tu ed out to be

quite generic. The substance of the pleadings and the

judges’ oti atio s are absent from the act records.

3. It was revealed that the will-making was quite informal

and conducted carelessly. For example, the notarial wills

were often completed afte the testato ’s death!

4. The attitude of the Commissaries to the wills was even more informal. It

see s that the e e he ked a ill’s authenticity by calling the witnesses or

any other means.

Constitution and form of the last wills: no significant influence of Jus Commune

The Scots last wills in mid-17th century generally follow the same forms as other types of documents.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Early Scottish notarial wills followed a Jus Commune form rather than a form accepted in later Scots law 1. Subject of research

and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Given up with my owne mouth… hereof I, notary public, Adam

Dickson, witness under my sign and

signature .

I, William Clarksone, subscribe with my

owne hand at the pen led by the notar

undirwritten at my command, becaus I

can not wryt .

The form on the left is asi all a u upati e testa e t, di tated the testato and written down by the notary. It was the way notarial wills in Jus Commune were

made (C.6.22.8). Most Scots notarial wills in 1560-1580s were made in this way, as

well.

The form on the right was a peculiarly Scottish invention, where the testator and

the notary were writing the text holding one pen together. They started to appear

after 1579 Act on the requirements of writing (which did not, however, concern last

wills). It became the standard by 1611 (Anstruther v. Thomson, M.12499).

By the early 18th century, Jus Commune might have influenced the formal requirements to legacies in Scots law

A contractual promise in Scots law, if exceeded 100 pounds, was to be proved by writing, not by witnesses. However, it could also be p o ed a oath of the pa t o the pa t ’s o fessio .

A legacy in Scots law, if exceeded 100 pounds, required a written form as a matter of substance (Bankton, III.8.6). It was established by at least 1711 (Moncrief v. Monypenny, M.13307).

This corresponds to the Civil law approach, where the formal requirements to a last will were substantive, not evidential (Paulus de Castro, cons. 93, vol. I)


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


The testator confesses in the testament that he owes 200 pounds to John. Is it a sufficient proof of the debt?


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Jus Commune on

the last wills

A confession in the

last will is not a

sufficient proof of

the debt (Bart.,

C.4.19.6,

D.32.37.5-6)

Jus Commune on

the books of

account

A confession in the

book of account

makes full proof

agai st the ook’s owner, but just a

half-p oof –

against third parties

(Bart., D.12.2.31;

Abb., X.3.27.3)

Scots law on the last

wills

A confession in a last

will makes full proof

against the testator,

ut just a half-p oof – against the

third parties

(Executors of

Marjoribanks Case,

1561; Executors of

Edgar Case, 1628)

≠ ≈

Donations mortis causa (DMC) 1. Subject of research

and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


I’ gi i g this to You in contemplation of

my mortality. It is

Yours, but I can

revoke it at any time

before my death.

I’ gi i g this to You in contemplation of

my mortality.

However, it is not

quite Yours yet, until I

die.

Civil law donation mortis causa Scots law donation mortis causa

(Morris v. Riddick, 1867, 5 M 1036)

The Civil law DMC holds a middle

ground between last wills and contracts

The modern Scots law DMC belongs

more to the field of contracts than of

last wills. It only extends to moveable

goods and documents and always

involves physical delivery of possession.

Whence the difference?

1. It was revealed that in much of the 17th century, until the 1660s, the definition of a donation mortis causa in Scots law was much closer to the Civil law definition: a DMC was seen as a form of a last will (Houston v.

Houston, 1631, M.8049; Nasmith v. Jaffray, 1662, M.3593; Hadden &

Lawder v. Shorswood, 1668, M.16997).

2. However, since around the 1660s, the Court of Session becomes very reluctant to recognize particular deeds as donations mortis causa.

• Henderson v. Henderson (1667, M.11339): the donation was irrevocable efo e the do o ’s etu f o the t ip, ut e o a le afte – not a DMC;

• Thomsons v. Creditors of A. Thin (1675, M.3593): the donor reserved a right to alienate the donated property – not a DMC;

• Lesly v. Lesly (1699, M.3597): a disposition with power to alter it by the donor – not a DMC;

etc.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Donations mortis causa (DMC) (2)

Tricks to

avoid

prohibition


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Donations mortis causa (DMC) (3)

I’ gra ti g my land to

You, but the

deed will

remain in my

hands until I

die!

1. I noticed that in the same period, in

1660s, the Court of Session accepted

a d de la ed la ful the undelivered

dispositions , the t i k de i es to avoid the prohibition to leave land by

a last will. The Court held that they

e e ot testa e ts o do atio s mortis causa a d thus e e alid dispositions (McBride v. Bryson, 1680,

M.17002). Donation mortis

causa

Donation

mortis

causa

2. I came to conclusion that the Court of Session

was intentionally narrowing down the definition

of a DMC. In this way, the Court was excluding

the tricks to avoid prohibition of testation from

the DMC definition, in order to clear any doubts

in validity of such tricks. As a result, the 18th

century legal authors had to redefine the DMC

on a narrower basis than the Civil law DMC.

Agreements on future succession (pacta successoria)

1. A promises that B will succeed to A after his death.

2. A promises to assign to B whatever A receives by succession from C.

Are these valid contracts?


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Civil law: no to both!

The first one is contra bonos mores, because it restricts

testamentary freedom and creates a motive to pursue the

testator’s death (votum captandae mortis). Invalid (D.45.1.61).

The second one is contra bonos mores, because of the votum

captandae mortis. Valid only if the testator consents (C.2.3.30).

Scots law (so far as the established opinion goes): yes to both!

The Romans, a jealous people, much given to poisoning, did restrict

such bargainings, ut our la has repudiated these i eties… (Ragg v. Brown, 1708, M.5260=M.9492).

The real picture was more complicated.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Agreements on future succession (2)

Prohibition of pacta

successoria in Civil law

Moral considerations:

Ignored in Scots law

Considerations of vesting: Scots law

followed the Civil law principles

For example, contrary to the later law (M’La e 1868, p. 1619), the 17-18th

century Scots law did not allow an assignation of the rights of future succession

(spes successionis). They could only be promised to be assigned in the future

(Aikenhead v. Bothwell, 1630, M.9491; Dairsey v. Hay, 1663, M.4356; Inglis v.

McMorran, 1686, M.9254).

Substitutions and destinations: conceptual differences, practical similarities

Both Ci il la a d “ ots la had su se ue t su essio : I leave it to A, after his death – to B .

I Ci il la it as alled fideicommissary substitution , i “ ots la – just substitution a d also destination , tailzie , etc).

However, due to some reason, Scots lawyers ignored the existence of su se ue t su essio i Ci il la a d o side ed thei su stitutio to e u i ue Gretton 2007).

The Romans had the name of su stitutio ithout the thing (Erskine, III.8.44)

The ulgar su stitutio s of the ‘o a la … ere fou ded o this subtility, that… o e ould ot a e a heir to his heir… (Campbell v. Campbell & McMillan, 1740, M.14855)


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Heir-substitute 2

400

- 100

Heir-substitute 2

400

- 200

Heir-substitute 1

400

- 400


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Substitutions and destinations: conceptual differences, practical similarities (2)

1. Civil law (if alienation forbidden) – singular succession

A. Testamentary fideicommissary substitution (by Corpus juris civilis)

Testator

400

- 400

Heir

400

- 100

Fideicommissary

substitute 1 400

- 300

B. Contractual fideicommissary substitution (developed by Medieval lawyers)

Fideicommissary

substitute 2

400

No liabilities

Contractual creditor

400

Fideicommissary

substitute 1 400

Fideicommissary

substitute 2 400

2. Scots law (if alienation forbidden) – universal succession.

Non-statutory special destination (Callendar v. Hamilton, 6 6, Ma ke zie’s Tailzies)

Testator

400

- 400 - 100 - 200 - 100

However, there were also direct borrowings by Scots destinations from Civilian substitutions:

• In both laws the property burdened by substitution could be alienated for necessary auses, ut ould ot – fo voluntary auses D.3 .6 . ;

Bruce v. Buckie, 1619, M.10415);

• Scottish clauses irritant and resolutive, preventing a transfer of the burdened property to the third parties, seem to have been inspired by the Civilian lex commissoria (Pellegrini, De fideicomm., art. LI nu. 82; Viscount

of Stormont Case, 1662, M.15475);

• There is evidence that pre-1660s Scottish moveable destinations in obligations I here y pro ise to pay pou ds to A, ho faili g to B”) were not yet governed by the rules of universal succession and were more similar to the Civilian fideicommissary substitutions (Letch v. Balnamone, 1623, M.14845; Thomson v. Merkland, 1630, M.5774; Ayton v. Watson, 1635, 1 B.S. 205).


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Substitutions and destinations: conceptual differences, practical similarities (3)

Office of executor: Scots law almost identical to Canon law

The following Scots law rules were inspired by Canon law:

• That an executor has one year to make an inventory and execute the testament (X.3.26.3, 6, 17; C.6.30.22);

• That several executors of one testator may file lawsuits and be sued together only (Sext.3.11.2; Durante, De arte testandi, VII.8);

• That an executor only acquires a vested right in the property he actually controls, unless he has a personal interest in the estate (Bart., D.34.1.15-16; Bald., C.8.53.33);

• Possi l e e the cy-près” rule (Abb., X.3.26.6; Durante, De arte

testandi, VII.6; Commissioners of Berwick v. Craw, 1678, M.1350). But this requires additional research.


and materials.

2. Methodology.


outcome

4. Constitution and



the last wills.

6. Donations mortis

causa.

7. Agreements on

future succession



destinations.


Documents

The Influence of Jus Commune on the Scottish judicial practice on succession to movables in 1560-1660