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Tuesday 25 November 2014
 
 
 

Inheriting land and buildings

The feudal system

Until the Abolition of Feudal Tenure (Scotland) Act 2000 came in to force in 2004, land in Scotland was held through the feudal system. All land theoretically belonged to the Crown, and the Crown passed ownership to its immediate vassals ('subject superiors' or 'Crown tenants'), who in turn could pass on ownership to their vassals. In origin it was a system designed for a military society, with the vassals owing military support to their superior in return for land granted. Of course, the military aspect was long ago replaced by a monetary payment but otherwise the outward appearance of the structure remained in many ways unchanged until 2004.

Retours (services of heirs)

Whenever a vassal died, his heir had to prove his right to inherit. In the case of a subject superior, a jury of local landowners was assembled to hear evidence and to decide whether a particular individual was the rightful heir. Their findings were written up as a return or retour to the Royal Chancery. If this was satisfactory, the Chancery would recognise the individual as the proper heir ('serve him as heir') and matters would then be put in hand to give him full title to his lands. All returns for property held by subject superiors are called special retours because they explicitly describe the property concerned. They are recorded in the records of the Chancery. In dealing with their own vassals, however, subject superiors commonly operated a simpler system. They merely satisfied themselves of a person's right to inherit (they would probably know the heir personally) and then issued a precept of clare constat, ordering their officials to grant the heir his title. While these precepts turn up in many collections of family papers in the National Archives of Scotland (NAS) and in other archives, there is no central register of them. Sometimes, however, vassals had to prove to a subject superior that they had a right to inherit a particular property, perhaps because the superior did not know them, or because for some reason he was refusing to grant title. In these circumstances, vassals could use the Chancery system as a form of legal process, to obtain a jury's opinion on their claim. If the jury's verdict was favourable, the vassal could use it to obtain the superior's consent, or to force his hand. Such returns are called general retours because they do not go into any detail about the lands concerned. These retours are recorded in the records of the Chancery (NAS ref. C22 and C28).


Understanding a retour

The records of retours are in Latin until 1847, save for a period between 1652 and 1659, when they are in English. They are written in a neat, chancery handwriting. Their structure and content are very stereotyped, however, and the styles and translations given in Peter Gouldesborough's 'A Formulary of Old Scots Legal Documents' (Stair Society, Edinburgh, 1985) will allow most readers to work out what a particular retour is saying. In general, a retour begins with the date of the inquest, and then provides the names of the jury, the name of the deceased, the lands concerned (if it is a special retour), and the name of the person identified as the legitimate heir.


Finding retours for counties and burghs before 1700

The earliest Chancery record of retours starts in 1530. To search them, there are three published volumes containing printed abridgements (concise summaries) of all retours for the years 1530 to 1699, the 'Inquisitionum ad Capellam Regis Retornatarum Abbreviatio' (Edinburgh, 1811-16). The third volume includes an index, arranged by county, of persons and places and this will lead you to relevant abridgements. The abridgements in turn will give you the references for the original retours in the Chancery records in the NAS (NAS ref. C22). In practice, a printed abridgement often provides all the information that most searchers need. These abridgements are in Latin but it is normally very formulaic, and a Latin dictionary and a little perseverance will see most people through them. The abridgements and their index are described in the NAS publication 'Tracing Your Scottish Ancestors' (Mercat Press, 3rd ed. 2003). Many of the larger Scottish and other reference libraries will have a set of these abridgements. The Scottish Genealogy Society has published a CD rom of the abridgements.


Finding retours for counties and burghs from 1700

From 1700 to date, there are printed 'Indexes to the Services of Heirs in Scotland'. These are arranged in sections covering ten years at a time until 1859, when they become yearly. You simply look up the name of the heir and this index will give you the heir's designation, details of the ancestor, sometimes the ancestor's death date, the type of heir, the names of the lands involved if the retour is 'special', and the retour date. This date of recording will allow you to find the original record; if before 15 November 1847 the NAS reference has the prefix C22, and if after that date, the prefix is C28. This printed index often provides all the information that most searchers need. The records and their indexes are described in 'Tracing Your Scottish Ancestors'. These volumes are printed rather than published but they can sometimes be found in larger Scottish and other reference libraries.


Records of inquests

The records in C22 and C28 held by the NAS are the records of the Chancery based in Edinburgh, and show the conclusion of the retour/services of heir process. The juries who made inquest and then sent the retour to Chancery kept their own records. The value of these inquest records is that they can sometimes give considerably more details about a claimant's family than is entered in the final retour. Equally, the surviving inquests will show which claims were rejected. The records of inquests should be in the following places:
  • Before 1821: For properties outside royal burghs, try the records of the sheriff court for the appropriate county. These will be in the NAS.
  • Before 1821: For properties inside royal burghs, try the appropriate burgh court book. Some of these records are in the NAS, many others are in local archives
  • Between 1821 and 1847: The registered retour will state either that the heir was served before the sheriff of a county or a burgh court (see above), or that the heir was served before the sheriff depute of Edinburgh 'on commission'. In the last case, the inquest should be in series C27 in the NAS.
  • From 1847 onwards: The inquest papers should be in series C29 in the NAS.

Shortcomings of the retour process

Unlike sasines, there was no time limit for recording a retour and the document that you are seeking may not be registered for many years after the date that you might expect. Similarly, it was often perfectly possible for individuals to take up their inheritance without immediately troubling to obtain a retour. They might get it only much later, for example, if their possession was threatened or if they had to produce a full set of titles before they could sell the property on to a third party.


Inheriting land by means of trust disposition and settlement

The trust disposition was a form of testamentary deed that allowed an individual to ensure the transfer of landed property to his chosen heirs. In essence, a deed was drawn up transferring ownership of the land concerned to a group of named trustees. Certain powers were reserved to the granter, however, and this in effect meant that he or she retained complete power over the property. Such a deed was normally recorded only after the death of the granter, and this registration frequently included a settlement of the succession to the granter's moveable property. Collectively, the document was known as a trust disposition and settlement or 'TD&S'. It could be registered in a number of places. Most likely, if it were the settlement of a major landowner it would be recorded in the register of deeds of the Court of Session. For most other individuals, such a disposition could be in the register of deeds either of the local sheriff court, the local commissary court (up to 1809) or even the register of deeds maintained by the local royal burgh. Further information on deeds and where to find them can be found in the NAS guide to deeds.


Inheriting land after 1868

From 1868 it was legal for individuals to pass on their heritable property (land, buildings) by way of a conventional will. From that time on, the rather elaborate services of heirs procedure fell gradually into disuse ('desuetude') and its formal abolition began in 1964. Nowadays only a trickle of properties are passed on in this way.

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