Record Masterclass
Chris Paton explains how to locate your 18th- and 19th-century ancestor in Scottish records of inheritance
Find your forebear in Scottish records of inheritance
Scotland historically had two separate legal procedures for inheritance. The conveyance of moveable estate (furniture, money etc) was carried out through the confirmation process in the civil courts, similar to ‘probate’ methods elsewhere, with the wills, invoices and testaments involved available online through ScotlandsPeople ( scotlandspeople.gov.uk).
Prior to 1868, Scottish heritable estate, namely land and property, could not be bequeathed in a will. It was instead inherited by the nearest of kin according to the law of primogeniture, through a quite separate and unique process not replicated elsewhere in the UK.
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As soon as the deceased passed away, the eldest surviving son was designated the ‘apparent heir’, and held only limited rights to the property to be inherited. This continued until a process was undertaken that formally confirmed his right in law to take possession, following confirmation of his identity and relationship to the deceased.
If the eldest son did not survive, the estate went to the next eldest son; if no sons survived, it was instead divided equally between any surviving daughters (the ‘heirs portioners’).
How the process happened, however, depended very much on who the deceased’s feudal superior was, ie the person from whom the land was held through the Scottish feudal system. For any property not held from the Crown, but from a ‘subject superior’ lower down the feudal ladder, a simple document called a ‘precept of clare constat’ was issued by the subject superior, basically acknowledging that the apparent heir was clearly who he or she stated himself or herself to be. Once issued, the apparent heir was no longer so designated, and instead became the holder of the deceased’s property as the new vassal of the subject
inherited ‘Scottish heritable estate was according to the law of primogeniture’
superior, and could record the transfer of ownership in a register of sasines.
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However, if the land was held directly from the Crown, a much more formal jury-based process was involved, known as the Services of Heirs. The apparent heir first purchased a type of warrant called a ‘brieve’ from the Scottish Chancery, permitting a jury to be called by a judge to form an inquest into his or her claim. Often this jury would include a member of the heir’s family to help the procedure, and if it was satisfied as to the heir’s identity, its decision would be sent to the Scottish Chancery via a document called a ‘retour’. Following this, the transfer of ownership
would be then completed by recording the inheritance in the sasines register. From November 1847 the purchase of a brieve was no longer necessary, with a simple petition to the county sheriff, or the sheriff of Chancery, all that was needed to get the process underway.
There were two main types of returns, known as ‘special services’ (or ‘special retours’) and ‘general services’ (or ‘general retours’). The general service simply noted that the apparent heir’s identity had been confirmed, while a special service also noted the land involved. Judgments passed by the courts were open to challenge for 40 years, and if a more legitimate and closer heir was discovered or made a claim, then the original service could be invalidated and a new one granted in favour of the true lawful heir.
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The lengthy returns were written in Latin, and are available at the National Records of Scotland (the NRS; nrscotland.gov.uk). From 1700 to 1859, however, there are published indexes in English, arranged in decennial runs, and alphabetically by the name of the heirs served. Freely available online at familysearch.org/search/ catalog/1004156, they note the name of the heir, “distinguishing particulars” with details of the deceased and the heir’s relationship, and the date of the judgment, followed by the date of recording and index information for the original entries. A separate index supplement for each decade notes heirs with different surnames to the deceased. From 1544 to 1699, earlier abridgements, written in Latin, can be found in the Inquisitionum ad Capellam Domini Regis Retornatarum Quae in Publicis Archivis Scotiae Adhuc Servantur, Abbreviatio, which is also on FamilySearch at familysearch. org/search/catalog/248869.
From 1868 land could be left in a will, but the Services process continued well into the 20th century. Annual indexes from 1870 onwards, not yet digitised, are available at the NRS.
CHRIS PATON is the author of Tracing Your Scottish Ancestry Through Church and State Records, which Pen & Sword will publish on 30 November. He blogs at britishgenes. blogspot.com