Guides

Property ownership, renting and occupancy

Photograph of properties

Several aspects of Scots law relating to property ownership and use are worth knowing about if you are looking for legal records like wills and testaments and even when using recordslike valuation rolls and church records.
In Scots law, property is either heritable or movable. Heritable property usually means land and buildings. Moveable property is, esentially, anything that can move or be moved and includes money, furniture, clothing, farm livestock, crops, and things like debts. The value of property, in terms of income derived from it, is an important concept in undersatanding records like valuation rolls and wills and testaments. 

Movable property

The rules of moveable succession differed from those which applied to succession to heritable property principally in that there was no significance attached either to primogeniture (the inheritance going to the eldest son to the exclusion of all the other sons and daughters) or to the gender of the children of the deceased. With moveable succession, all children had equal rights.

When a man's property was being distributed it had to be divided into a maximum of three parts:

  •  the widow's part - jus relictae
  •  the bairns' part - legitim
  •  the dead's part - deid's part

If he was survived by both wife and children his estate was divided into three, with one-third going to the widow, one-third being divided equally among the children or all going to an only child, while the remaining third could be disposed of in accordance with the wishes expressed by the deceased in his will or disposition. If the man had been pre-deceased by his wife the division was into two parts, with one half going to the children and the other to persons named by the deceased. If there was a widow but no children again the division was into two - one half to the widow and the dead's part going to other named individuals. Lastly, if the man had no surviving wife or children the whole of his moveable estate was designated as the dead's part, to be bequeathed by him as he pleased. This distribution could be affected by any special provisions already made in a marriage contract or in bond(s) of provision for children of the marriage.

On the father's death the jus relictae and legitim vested automatically in the wife and children so there was no need for their shares of the estate to be presented to the commissary court by the executor for confirmation.
The deid's part had to be confirmed by the court, even if this had not been disposed of by a will. In the latter case, this share had to be taken up by the next of kin by confirmation. If the deceased was survived by neither wife nor children, then his next nearest of kin were deemed to be his surviving brothers and sisters, among whom his estate would be distributed equally.

The strictly equal succession in moveables took place only where there was no heritable property to be disposed of in addition. Where there was "heritage", this by right went to the eldest son, which automatically debarred him from receiving a share of the moveable estate, i.e. that share which formed part of the legitim. However, this son was still entitled to the heirship moveables so that he would not succeed to a house and land completely denuded. These moveables consisted of the best of the deceased father's furniture, horses, cows, farming implements, and so on.

The moveable estate of a widow would be divided into two parts, the legitim and the deid's part.

Rental value of property

In modern times when we talk about the value of heritable property (that is, land and buildings) we normally mean the sale value. But in medieval and early modern times the key value of land was its rental value (that is, how much rental income a property owner could get from the tenants on it). The value of rents is often mentioned in property records and the Scottish taxation system was largely based on rental value until the late 20th century. The rateable value of properties, expressed in valuation rolls, was based on this idea of properties rental value. Even if  a property was not actually tented, the rental value was estimated by comparing similar properties nearby.

Because inventories (in wills and testaments) contain lists of things (especially agricultural produce) it is worth getting to know weights and measures which were used in Scotland between 1500 and 1900. Until the late 17th century a wide diversity of weights and measures were used in Scotland. Standardisation took place from 1661 onwards, and in 1824 an act of parliament imposed Imperial measure and defined the proportions of older measures to Imperial measures. In inventories the most common measure is dry measure, but other measures occasionally appear.