"sould be disponed be his ordinar; and the ordinar sal be "oblissed to answer for the debts, sa far as the gudes and 66 geir will extend. 3. In the samine maner that the "executors sould doe in case the defunct had made ane "testament." (a)

But it will be seen that the first section of this act is a translation, almost word for word, of that chapter in the great charter of John, in regard to the goods of intestates, which we have already noticed (b); and the second section of this act appears to be verbatim the same with the act of the thirteenth of Edward I. in England upon the same subject, and was in all probability copied from it, though given as the production of an earlier age. (c)

2. In the Leges Burgorum, also published by Skene, and stated to have been made by David the First, the law is thus laid down as to "the division of ane burges gudes." (d) "The custome is, within the burghes of this realme, passed "memorie of man, quhereof there is na memorie in the contrair, "that quhen ane burges hes children begottin with his awin "wife, and thereafter deceisses, the thrid parte of all the

gudes and geir perteines to the sonnes and dochters 66 lawfully begottin. 2. And the eldest sonne and heire "of that man and wife sall have the like parte and portion as the other bairnes, that is, equal with any of them, 66 except he be forisfamiliat be his father."

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According to this statute, it would appear that there had been a custom in the burghs of Scotland relative to the law of succession different from the general law, as there was in various parts of England. For a long period no trace of such custom has been known in Scotland, and there has been but one rule of law in that country, in regard to the succession in personal estate.

(a) Statutes of William, c. 22. (c) 13 Edward I. c. 19.

(b) Supra, p. 6.

(d) Leges Burgorum, c. 124.

From the expression, "passed memorie of man, quhereof "there is no memorie in the contrair," there is strong reason to conclude that this had had an English origin. This is precisely the mode in which their writers describe the legal memory of the English law. (e)

3. The other notices of the law of succession in personal estate in our statute book are very scanty. In 1540 an act of parliament was passed in these terms (f): For sa-meikle as oft-times zoung persones dies that may not make testamentes, the ordinares usis to give their executoures datives to their gudes, quhilkis intromettis therewith, and withdrawis the gudes fra the kin and friendes that suld have the samin be the law, it is statute and ordained be the three estates of this present parliament, that quhair ony sik persons dies within age that may not make their testamentes, the nearest of their kin to succeed to them sall have their gudes, without prejudice to the ordinares anent the quote of their testamentes.

In this act it appears, that, by the law as it then stood, the next of kin were entitled to the personal estate of persons who died before they were capable to make testaments, and that the ordinaries were in use to make grants thereof, to the prejudice of such next of kin. To remedy this was the object of the statute; and by this act the law appears to have been placed upon a better footing in Scotland than it was in England till the statutes of distribution were passed in that country in the 17th century.

This act is also to be noticed in regard to the expression which it contains of "executoures datives." The law language of Scotland had been then settled in the distinction of executors testamentary and executors dative, which has continued to our time. These in England had been long described respectively as executors and administrators. (g)

(e) 1 Instit. s. 176.

(f) 1540, c. 120. (g) In every country (except Scotland) which uses the English

Something as to the state of our law of succession may be discovered in the instructions given to the commissaries with regard to the confirmation of testaments in 1610. In laying down the rules for ascertaining the quantity of the dead's part, which was liable in payment of the quot, or composition payable to the commissaries and their officers for granting confirmations, and after specifying what debts were to be deducted from the inventory, the instructions proceed thus: "Quhilkis deductiounis beand maid be the persoun deceist, he leivand behind him wife and bairnis, gif ony of the bairnis, be unforisfamiliat, the testament (h) "dividis in thre partis, and the thrid of the fre geir payis quot; gif all the bairnis be forisfamiliat the testament "then dividis in twa partis, and the half of the fre gear 66 payis quot; gif there be na bairnis, the testament dividis "likewayis in twa, and the half of the fre geir pays quot; "gif the persoun deceist be singil, and hes na bairnis un"forisfamiliat, in that cais the hail fre geir payis quot, but 66 ony divisioun." (¿) At this time the law At this time the law appears to have

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language, in England, in Ireland, and in the American States, - the words executors and administrators have now a precise and technical meaning; the first, denoting the executors testamentary, and the other the executors dative of the law of Scotland. The word administrator in the

above sense is unknown either in the civil or canon law. It was introduced, as already noticed (supra, p. 28.), into the law of England by the statute of 31 Ed. III. c. 11. It would be a matter of some convenience were the words executors and administrators adopted in Scotland in the same sense. I have observed the expression executors, used in the sense of the Scottish law, leading to misapprehension at a very recent period.

(h) At this period the word testament appears to have been commonly used instead of moveable succession, or personal estate. This was very different from the Testatio mentis of the civil law (Inst. lib. 2. tit. 10.); the expression is still so commonly used in Scotland in the same sense, that its anomalous nature scarcely attracts attention.

(i) Instructions to the commissaries in 1610, printed in Balfour's Practicks, p. 666.

been clearly understood. If the deceased left a wife and children, or a child not forisfamiliated, the division was into three parts; but if the children were forisfamiliated, or had accepted provisions from the father, the division was to be bipartite, and in the same way as if he had left only a wife, and no children.

In the reign of James the Sixth an important statute was passed in Scotland, for further settling the law of succession in that country. (k) This statute was in these terms: Our Soveraigne Lord understanding that a great number of ignorant people, the time of their sicknesse and disease, or otherwise at the making of their testaments and latter wills, do nominate certain strangers to be their executors, meaning only to commit the care of their goods, and diligent ingetting thereof, to the saids strangers, and that to the behoof of their children, or other persons who are nearest of kin: whereas, by the contrary, the said office of executry, by the interpretation now observed, doth cary with it the whole profit and commoditie of the defunct's part of the goods contained in testament; which his Majesty findes to be altogether against law, conscience, and equity: therefore his Majesty, with advice and consent of the estates of parliament, finds and declares, that all executors, already nominate in any testament not as yet confirmed, or to be nominate in any testament to be made hereafter, are and shall be obliged to make count, reckoning and payment of the whole goods and geare appertaining to the defunct, and intrometted with by them, to the wife, children, and nearest of kin, according to the division observed by the laws of this realm; reserving onely to the saids executors the thrid of the defunct's part, all debts being first payed and deduced, without prejudice always to the saids executors of whatsoever legacies left to them by the saids defuncts, which shall no wayes be pre

judged by this present act; but the saids executors shall have full right to their saids legacies, albeit the same exceed the said thrid of the defunct's part; and in case the saids legacies exceed the whole thrid part, the saids executors shall have right to the whole legacie, and no part of the thrid ; with this expresse declaration, that where legacies are left to the executors, they shall not fall both the saids legacies and a thrid by this present act, but the saids legacies shall be imputed and allowed to them in part of payment of their thrid.

This is a very important statute, in various points of view; we see from it the state of the law at the time when the act was passed. The executors testamentary claimed the whole residuum to themselves, after payment of debts and legacies; but by this just act (as it is termed by Sir George Mackenzie in his observations upon it) the residue is directed to be paid to the wife, children, and nearest of kin, reserving to the executor the third of the deceased's part; and if any legacy was given to the executor, such legacy was to be imputed to account of his third part.

Under the provisions of this statute, which is still in full force, the law was regulated more equitably than it had been in England, down to the period when the recent act of the 11th of George IV. and 1st of William IV. (already noticed) (1) was passed. This last mentioned act appears to have put this matter upon its proper footing.

In one of the acts of the parliament of Scotland in 1644, an ease is granted to clergymen surviving their wives, in regard to their books falling under the executry of the predeceasing wives. (m) The act is in these terms: "The "estates of parliament presently conveened by vertue of the "last act of the last parliament holden by his Majestie and "three estates, in anno 1641, Finding ministers to be much

(1) Supra, p.39.

(m) 1644. c. 19., rescinded acts.