IN SCOTLAND.
The Scottish law applicable to wills has had an ecclesiastical history as well as that of England. The clergy were permitted to exercise jurisdiction in regard to divorce and succession because they were supposed to be ‘just persons,’ as also because they knew the art of writing better than most other ancient judges. Modern probate law does not differ materially in the two ends of the island, except in nomenclature. The chief distinction is that in Scotland a will does not require any ‘probate’ or proving; it proves itself, if it be signed before witnesses; and if it be holograph—that is, in the handwriting of the testator—its authenticity or validity is assumed, so long as not impugned. The Scottish analogue of English probate is obtaining confirmation of the executor. If the executor be named in the will, he takes it to a lawyer: the lawyer makes up an inventory of the estate of the deceased. This inventory is stamped at a revenue office by a stamp corresponding in cost to the amount of the estate. The stamped inventory, after being sworn to before a justice of the peace, is presented to the sheriff-clerk of the county in which the deceased had his ordinary domicile. The sheriff-clerk, in the interests of the revenue, satisfies himself that the stamp is correct as to pecuniary amount, and then grants confirmation under the seal of the court. That confirmation is equivalent to a judicial warrant to collect every debt and realise every asset specified in the inventory. If there be no will, or no executor named in the will, the sheriff appoints an executor, or executors, according to a recognised order, those equally near in blood, or having an equal interest in the estate, being appointed jointly; a proceeding which corresponds to the granting of letters of administration by the English Probate Court.
Scotland, of course, as well as England, enjoys the benefit of the statutory provisions applicable to estates under three hundred pounds. The persons entitled to succeed, or one of them, can do all that is necessary to transfer the estate from the dead to the living without the intervention of a lawyer or the burden of his bill of costs. He can go to the sheriff-clerk of the county of the domicile, give the requisite information; and the sheriff-clerk will do all that is necessary towards the giving of confirmation, for a fee that is regulated by the amount of the estate, but which is a merely nominal fee compared with what would fall to be charged by a regular professional man.
The courts of Scotland, as a rule, decline to interfere with the administration of the estates of deceased foreigners, among whom Englishmen are included. It is a necessary condition to a Scotch court confirming an executor or appointing one that the domicile of the deceased shall have been in Scotland. Some of the English courts are guided by much more expansive ideas of their duty, and will take charge of the estate of any man, if it be large enough to promise remuneration to Chancery and Probate practitioners. Within the last few years, the English Court of Chancery extended its long arm to administer the estates of Sir W. Stirling-Maxwell, formerly M.P. for Perthshire; and for years the officials of Chancery directed the management of his large Scotch heritable properties of Keir and Pollok, of course with such copious intelligence as Chancery persons have in regard to every property out of which money can be extracted, but perhaps not at a rate of remuneration quite so moderate as would have sufficed, had the greed of English lawyers and the benevolence of English judges permitted the estates of this eminent patriotic Scotchman to be administered according to the law of his own country. A similar stroke of usurpation was more recently attempted in regard to the estate of Orr Ewing. Less than the hundredth part of that estate, which exceeded in value a quarter of a million, had been left to a young man resident in London. This young man was under twenty-one, and therefore an English ‘infant,’ unable to take care of himself. Some officious person, calling himself a ‘next friend’ of this infant, attempted to have all this large estate transferred from Scotland to the Court of Chancery; and the Court of Chancery very kindly did what it could to gratify the zeal of this ‘next friend’ for the interest of the infant—and perhaps of some lawyers—of not very tender years. But this usurpation was resisted by the Scotch beneficiaries and by the Scotch courts. The House of Lords decided distinctly that the English Courts acted according to their precedents when they made this usurpation of jurisdiction over Scotch estates; and they decided also, but a good deal less distinctly, that the Scotch courts did not exceed their jurisdiction in resisting this usurpation. The courts of law in London and Edinburgh are thus in conflict; and the claims of each have so far obtained the sanction of the supreme tribunal of the country, that hereafter, unless the legislature interfere, no large Scotch succession can be considered safe from the purely benevolent but somewhat expensive supervision of the English Court of Chancery.