Postdoctoral Researcher in Tilburg Law School, 2017-
PhD Law, University of Edinburgh, 2013-2017
Candidate of Legal Science, Moscow University, 2008-2011
PhD Law, University of Edinburgh, 2013-2017
Candidate of Legal Science, Moscow University, 2008-2011
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2. Scots law of succession in that period was very similar to English law . Nevertheless, my research shows that Scots law of succession was strongly influenced by Jus Commune .
3. This question is largely unexplored in the legal scholarship. The source materials are relatively abundant; however, matters of succession did not take large part of contemporary litigation.
4. Analysis of archives of Commissary Courts , reports of Court of Session decisions and legal writings reveals that lawyers of the period were increasingly tending to cite and refer to Continental authorities, but they did not always understand those authorities correctly .
5. So far, the sources and methodology in use are already providing the answer to the question, when Scots law, unlike most legal systems of the time, ceased to recognize nuncupative wills , and the explanation, why intestate successors in Scots law had very restricted rights of transmission .
6. Comparisons with Continental doctrines are also giving us clues to solve other unresolved issues, like: When did Scots law recognize holographic wills ? What was the basis for unrestricted liability for meddling with a defunct’s goods ? Did Scots lawyers distinguish in practice between testamentary dispositions and contracts ? – and many similar questions.
2. In the doctrine, executor was a successor to all the moveable goods of the deceased. The implications of the doctrine (although not corroborated by known practice so far!) were the following:
a. Executor was appointed either by testator or by a Commissary court in case of intestacy (“executor-dative”). Executors-dative were the continuation of the Church’s authority to supervise succession.
b. In case of intestacy the deceased’s “nearest-of-kin” (in most cases – children, otherwise – siblings) had a preferential right to be appointed “executors-dative”.
c. But before nearest-of-kin obtained confirmation as executors they had no strict rights to the estate. In case they died before confirmation their own executors wouldn’t be entitled to the original deceased’s property.
d. It seems, confirmation originally bestowed upon the executor the right to possess only specific goods the executor included into his inventory. Only after he actually collected them they would be deemed “established” in his person and could be sold or transmitted by succession.
3. Could Civil law influence play any part in changing the aforesaid doctrine?
a. Civil law had a concept of “suus heres”, which primarily included children under parental power of the testator. “Suus heres” had several privileges.
b. Most importantly, “suus heres” by fiction was deemed to become legal owner of the hereditary goods immediately after testator’s death. So, he could transmit his share in the estate without restrictions (C.6.51.1.5).
c. Moreover, if there was a “suus heres”, no one could obtain a title “pro herede” to the estate goods. That means, existing co-heirs couldn’t dispose of estate goods in prejudice of the “suus heres” (C.7.92.2, Bartolus, Commentary ad D.28.2.11, nu. 2).
4. The Scots case-law has undergone significant developments by the mid-18th century:
a. The doctrine appears that a nearest-of-kin starts to possess “chiefly for himself” his whole share of estate goods immediately after its confirmation, irrespective of whether he has collected all the specific goods or not (Erskine III.9.38; Graeme of Claverhouse Case, 1686; Mitchel c. Mitchel, 1737).
b. Nearest-of-kin was found entitled to take physical possession and thus acquire a titular right in the estate goods even before confirmation (McWhirter c. Miller, 1744).
c. Immediately at confirmation as executor, nearest-of-kin was deemed to obtain title to all the goods of the estate, even those omitted in inventory. From that moment he could dispose of his share to all the goods and was protected from other their appropriation by the third parties (Executor of Murray c. Murray, 1745).
d. In a later case, “suus heres” concept was directly referred to by one of the parties in context of nearest-of-kin’s privileges (Ogilvie c. HM Advocate, 1760).
5. Could this influence start in even earlier period, in the 16-17th centuries? Children and the widow of the deceased are natural agents to take possession of the estate goods after death. Research of Commissary courts archives could help answer this question.
Conference Presentations
Scottish law of moveable succession holds a unique niche in pan-European context of the 16-17th centuries. On the surface, it lies within the same paradigms and modi operandi as English Common Law of wills and probate. Handled by the courts of the Catholic Church until the Reformation, it was traditionally governed by the rules of Canon law; but the scarcity of such rules specifically on the matters of succession forced the Church courts to rely on local and national customs. With the Reformation, came gradual secularization and decoupling of the national rules from the traditional practice and the rules of Canon law. Yet, the uniqueness of Scotland was in that the decrease in the
Canon law influence was rather slow, going on for more than a century after the Reformation. Moreover, unlike England, the principles of Civil law were becoming more and more influential. This manifested itself, inter alia, in the gradual assimilation of the executor with the Civilian “heir”.
The presentation was delivered at “Regulae iuris and maxims of law in the legal historical perspective” workshop, on 21 January 2022.
Local practice was reluctant to provide definite solutions of many practical matters. For this reason, the learned lawyers debated and solved practical questions mostly through reference to the Civilian concepts (such as missio in possessionem, curator bonis datum, “praetorian” and “judicial” pledge, etc.) and their divergent interpretations, rather than through reference to the local precedent. The “law of the book”, essentially, provided the protection of the collective rights of the creditors, which the “law in action” failed to provide on its own.
The presentation sums up the most important conclusions of my 2017 thesis on a related topic.
My thesis is dealing with the influence of the doctrines of the Medieval European Jus Commune (Civil law and Canon law, aka “Learned Laws”) on the Scots law of succession in the crucial period of its development. The slideshow provides in a graphical form the subject matter of my research, methodology and the findings, structured according to the fields of the law of succession. My research was able to identify Continental influences in the fields of succession which were previously largely disregarded by the legal historians: constitution and form of the last wills, evidential force of the last wills, donations mortis causa, agreements on future succession, substitutions, office of the executor.
Talks
2. Scots law of succession in that period was very similar to English law . Nevertheless, my research shows that Scots law of succession was strongly influenced by Jus Commune .
3. This question is largely unexplored in the legal scholarship. The source materials are relatively abundant; however, matters of succession did not take large part of contemporary litigation.
4. Analysis of archives of Commissary Courts , reports of Court of Session decisions and legal writings reveals that lawyers of the period were increasingly tending to cite and refer to Continental authorities, but they did not always understand those authorities correctly .
5. So far, the sources and methodology in use are already providing the answer to the question, when Scots law, unlike most legal systems of the time, ceased to recognize nuncupative wills , and the explanation, why intestate successors in Scots law had very restricted rights of transmission .
6. Comparisons with Continental doctrines are also giving us clues to solve other unresolved issues, like: When did Scots law recognize holographic wills ? What was the basis for unrestricted liability for meddling with a defunct’s goods ? Did Scots lawyers distinguish in practice between testamentary dispositions and contracts ? – and many similar questions.
2. In the doctrine, executor was a successor to all the moveable goods of the deceased. The implications of the doctrine (although not corroborated by known practice so far!) were the following:
a. Executor was appointed either by testator or by a Commissary court in case of intestacy (“executor-dative”). Executors-dative were the continuation of the Church’s authority to supervise succession.
b. In case of intestacy the deceased’s “nearest-of-kin” (in most cases – children, otherwise – siblings) had a preferential right to be appointed “executors-dative”.
c. But before nearest-of-kin obtained confirmation as executors they had no strict rights to the estate. In case they died before confirmation their own executors wouldn’t be entitled to the original deceased’s property.
d. It seems, confirmation originally bestowed upon the executor the right to possess only specific goods the executor included into his inventory. Only after he actually collected them they would be deemed “established” in his person and could be sold or transmitted by succession.
3. Could Civil law influence play any part in changing the aforesaid doctrine?
a. Civil law had a concept of “suus heres”, which primarily included children under parental power of the testator. “Suus heres” had several privileges.
b. Most importantly, “suus heres” by fiction was deemed to become legal owner of the hereditary goods immediately after testator’s death. So, he could transmit his share in the estate without restrictions (C.6.51.1.5).
c. Moreover, if there was a “suus heres”, no one could obtain a title “pro herede” to the estate goods. That means, existing co-heirs couldn’t dispose of estate goods in prejudice of the “suus heres” (C.7.92.2, Bartolus, Commentary ad D.28.2.11, nu. 2).
4. The Scots case-law has undergone significant developments by the mid-18th century:
a. The doctrine appears that a nearest-of-kin starts to possess “chiefly for himself” his whole share of estate goods immediately after its confirmation, irrespective of whether he has collected all the specific goods or not (Erskine III.9.38; Graeme of Claverhouse Case, 1686; Mitchel c. Mitchel, 1737).
b. Nearest-of-kin was found entitled to take physical possession and thus acquire a titular right in the estate goods even before confirmation (McWhirter c. Miller, 1744).
c. Immediately at confirmation as executor, nearest-of-kin was deemed to obtain title to all the goods of the estate, even those omitted in inventory. From that moment he could dispose of his share to all the goods and was protected from other their appropriation by the third parties (Executor of Murray c. Murray, 1745).
d. In a later case, “suus heres” concept was directly referred to by one of the parties in context of nearest-of-kin’s privileges (Ogilvie c. HM Advocate, 1760).
5. Could this influence start in even earlier period, in the 16-17th centuries? Children and the widow of the deceased are natural agents to take possession of the estate goods after death. Research of Commissary courts archives could help answer this question.
Scottish law of moveable succession holds a unique niche in pan-European context of the 16-17th centuries. On the surface, it lies within the same paradigms and modi operandi as English Common Law of wills and probate. Handled by the courts of the Catholic Church until the Reformation, it was traditionally governed by the rules of Canon law; but the scarcity of such rules specifically on the matters of succession forced the Church courts to rely on local and national customs. With the Reformation, came gradual secularization and decoupling of the national rules from the traditional practice and the rules of Canon law. Yet, the uniqueness of Scotland was in that the decrease in the
Canon law influence was rather slow, going on for more than a century after the Reformation. Moreover, unlike England, the principles of Civil law were becoming more and more influential. This manifested itself, inter alia, in the gradual assimilation of the executor with the Civilian “heir”.
The presentation was delivered at “Regulae iuris and maxims of law in the legal historical perspective” workshop, on 21 January 2022.
Local practice was reluctant to provide definite solutions of many practical matters. For this reason, the learned lawyers debated and solved practical questions mostly through reference to the Civilian concepts (such as missio in possessionem, curator bonis datum, “praetorian” and “judicial” pledge, etc.) and their divergent interpretations, rather than through reference to the local precedent. The “law of the book”, essentially, provided the protection of the collective rights of the creditors, which the “law in action” failed to provide on its own.
The presentation sums up the most important conclusions of my 2017 thesis on a related topic.
My thesis is dealing with the influence of the doctrines of the Medieval European Jus Commune (Civil law and Canon law, aka “Learned Laws”) on the Scots law of succession in the crucial period of its development. The slideshow provides in a graphical form the subject matter of my research, methodology and the findings, structured according to the fields of the law of succession. My research was able to identify Continental influences in the fields of succession which were previously largely disregarded by the legal historians: constitution and form of the last wills, evidential force of the last wills, donations mortis causa, agreements on future succession, substitutions, office of the executor.