The legal land ownership limbo of 'in hereditas jacens'

In a previous post on this blog (see http://chrispatonsblog.blogspot.co.uk/2012/02/land-inheritance-in-scotland.html) I discussed how prior to 1868 land and property was inherited in Scotland through a very separate process to that of moveable estate (the records for which are on ScotlandsPeople). This involved processes such as the Services of Heirs or the granting of a precept of clare constat, depending on who the feudal superior was in the arrangement. So whilst these processes were going on to confirm the right of the apparent heir to inherit, who actually owned the land or had responsibility for it?

The short answer is that from the moment of the previous holder's death until the moment when the apparent heir's identity is formally recognised by his or her superior, the ownership of the land went into a legal limbo, known in Latin as in hereditas jacens. The apparent heir had a year and a day to decide first of all whether he or she wished to inherit the property - after all, if it was saddled with debts, what would be the point?! This period of time was known as the tempus deliberandi or annus deliberandi - the time or year of decision.

If the apparent heir now wished to proceed, there were a couple of options available. The first was to just push on quickly and complete the inheritance process, by going through the Services of Heirs procedure (if the land was held of the Crown), or obtaining the precept of clare constat (if held of a subject superior, or middle man on the feudal chain).

However, an alternative was to take up partial possession of it with some protection against creditors, before the inheritance process was even commenced or completed. To do so, the apparent heir could take up what was known as entry cum beneficio inventarii - entry with the benefit of an inventory.

Within the first year after the predecessor’s death an inventory of the estate’s value could be drawn up and recorded by the local sheriff-clerk within the sheriff court books, which allowed the apparent heir to restrict the value of any debts owed by the estate to that stated in the inventory. After the annus deliberandi expired, the inventory could also be subsequently recorded in the Books of Council and Session (the Register of Deeds) within the next forty days.

Having taken up informal possession, the apparent heir was still an apparent heir, as the title had yet to be completed. As such, he or she could not sell off parts of the land or property, and only had limited rights to its assets. Nevertheless, for some, that was enough, and it would only be many years later when they did decide that they wanted to carve off parts of their estate that they perhaps decided then to complete the inheritance process.

So what's the bottom line? In some cases, this means that you may find that an heir is not recorded in the Services of Heirs indexes, or indeed in the sasines registers, until many, many years later after first gaining entry - and in some cases, not at all, if they left it too late and went off to meet their maker before their time was supposed to be up.

For more on the various methods of land holding, inheritance and other related topics, don't forget my book Discover Scottish Land Records (2nd edition), which might help. Details on how to buy the book from various worldwide outlets is available at http://britishgenes.blogspot.co.uk/p/my-books.html.


I hope it helps!

Chris

A visit to the Scottish Parliament

On Thursday 4th December my wife Claire and I had the pleasure to visit the Scottish Parliament at Holyrood, Edinburgh, with our local SNP branch (www.facebook.com/snplargs). We left Largs at 8.15am, and after picking  up some members at nearby Skelmorlie, made our way east, with lots of good cheer. This was to be my fourth visit to the Parliament, but the first visit by which I would get a better understanding of how our democracy itself works in Scotland. (I had previously visited briefly with an Australian cousin a few years back, whilst in 2014 I spent two days helping with an exhibition in the Members Lobby for the Scottish Council of Archives, which included an evening reception where I had had a chance to talk to the Culture Secretary Fiona Hyslop on issues relating to the archive sector).

We arrived at 11.00am, and after a security check and receiving our passes we were then greeted by our local MSP, Kenneth Gibson, who led us to the main chamber. We did not have a lot of time in here as Parliament was due to start from 11.20, but Kenny gave us a quick overview of the working week at Holyrood, and explained the work of our MSPs, the process by which parliamentary legislation was drawn up and enacted, and more. We were given a copy of the day's Business Bulletin, which is drawn up each day to outline the questions to be asked of ministers, and the various debates and committee meetings in the building, and obviously took a few photos! After a quick look at one of the committee rooms, where Kenny discussed how much of the real work of the parliament was carried out, we then bid him a temporary farewell as we made our way to the visitors gallery, and he to the chamber.

Being a Thursday, the regular session of questions to ministers commenced at 11.40, where various Scottish Government ministers were asked to comment on a variety of questions, ranging from questions on the uptake of grants from the Centenary Memorials Restoration Fund and what discussions had been had with First Group over the closure of a bus depot at Parkhead, to whether the forthcoming Lobbying Bill was fit for purpose, and what measures were being put into place for the protection of a growing elderly population in Scotland for the winter. It was a business like meeting without controversy. The real event, however, was First Minister's Questions, at 12pm. We watched for half an hour as Nicola Sturgeon managed to deal effectively with a range of issues asked by Kezia Dugdale, the leader of the Scottish branch of the Labour Party, and Ruth Davidson, the Tory equivalent. Whilst a huge shadow hung over the proceedings, in that the night before the UK's parliament in England had voted to bomb Syria (against the wishes of the majority of the people in Scotland), this was not dwelt on too much at this session.

With the session over we then caught up with Kenny again and made our way around the building to see various areas, including the main lobby area, the back room areas where the parties are based (they each have different floors), and areas such as the Scottish Parliament Information Centre (SPICE). It was slightly surreal to see folk like Annabel Goldie and other MSPs walking past, it is an extraordinarily open and democratic building. In fact, one of the things that Kenny mentioned was that it is very much a people's parliament, so much so that anybody in Scotland can book the function areas - after all, we paid for it! We then relocated to the member's restaurant, and had an enjoyable lunch, where we discussed much of what we had experienced with Kenny as our MSP.

As if to emphasise how open everything is, we were stunned when the First Minister walked into the restaurant with a small party to have a lunch meeting on the table next to ours. It was surreal, in that we were the only two parties dining, and so we did what any self-respecting parties would do in such circumstances - we bagged her! Specifically, we politely asked if she wouldn't mind us grabbing a quick photo opportunity with our group and with one of our local councillors, and she wonderfully obliged.

With lunch over, we had a final opportunity to have a look around, at which point Kenny had to leave us to get on with some work, but this gave us a chance to see the exhibition area in the main entrance foyer, recounting the history of Scotland's parliaments going back to the 13th century. It was an exceptional day, and although the rain was torrential by the time we had finished, our spirits were not dampened. A raffle on the bus back saw Claire win a bottle of mulled wine, but our friend Dougie failed to win the whisky (which may have upset the balance of the space-time continuum, because he usually does!).

A great day, great company, and a great democratic institution to be proud of!

(With thanks to Davina McTiernan, Kenneth Gibson MSP, and the First Minister) 

Chris