OpenLegislation

Intestates Widows and Children (Scotland) Act 1875

38 & 39 Vict. c. 41 · Enacted 19 July 1875 · Extends to Scotland

Up to date with all changes known to legislation.gov.uk, revised to 4 March 2016.

An Act for the relief of Widows and Children of Intestates in Scotland where the Personal Estate is of small value.

[19th July 1875]C1C2C3C4C5

Annotations to the whole text

Modifications

C1

Act amended by Small Testate Estates (Scotland) Act 1876 (c. 24), s. 6; extended to intestates who have died domiciled furth of Scotland by Customs and Inland Revenue Act 1881 (c. 12), s. 34

C2

Functions of Commissary Courts and Commissary Clerks in Scotland (except Commissary Clerk of Edinburgh) now exercisable by Sheriffs and Sheriff Clerks: Sheriff Courts (Scotland) Act 1876 (c. 70), ss. 35-39, 54, Sheriff Courts and Legal Officers (Scotland) Act 1927 (c. 35), ss. 10, 11(1) and S.R. & O. 1933/1089 (1933, p. 520)

C3

Preamble omitted under authority of Statute Law Revision (No. 2) Act 1893 (c. 54)

C4

Words of enactment repealed by Statute Law Revision (No. 2) Act 1893 (c. 54)

C5

Confirmation of Executors (Scotland) Act cited or referred to by its short title under authority of Statute Law Revision Act 1893 (c. 14), s. 3

Contents

  1. 1Short title.
  2. 2Extent of Act.
  3. 3Where estate does not exceed £36,000 widow or children may apply to commissary clerk to fill up inventory and expede confirmation.
  4. 4Proof of identity and relationship may be required.
  5. 5Commissary clerk may refuse to proceed if not satisfied that whole estate not more than 150l.
  6. 6Commissary clerk may administer oath. “Commissary clerk” to include “commissary clerk depute.”
  7. 7Procedure and fees under this Act to be regulated by Act of sederunt.
  8. 8Inventory duty not affected by this Act.
  9. Schedule AForm of Inventory and Relative Declaration
  10. Schedule B: Form of Confirmation
  11. Confirmation issued under the Act 38 & 39 Vict. cap. 41
  12. Schedule CSchedule C

1Short title.

This Act may be cited for all purposes as The Intestates Widows and Children (Scotland) Act, 1875.

2Extent of Act.

This Act shall extend to Scotland only.

3Where estate does not exceed £36,000 widow or children may apply to commissary clerk to fill up inventory and expede confirmation.F2

Where F1the whole estate of an intestate is of a value not exceeding ; £36,000 an applicant for confirmation thereto may apply to the commissary clerk of the county within which the intestate was domiciled at the time of death; and the said commissary clerk shall prepare and fill up an inventory and relative F3declaration, as nearly as may be in the form of Schedule A. appended to this Act, and F4on the inventory and declaration being signed by the applicant , and F5without requiring the applicant to find caution shall proceed to record said inventory and expede confirmation in the form as nearly as may be of Schedule B. annexed to this Act, and shall deliver the same to the applicant on payment of the requisite fee : . . . F6; and such confirmation shall have the same force and effect as that prescribed in Schedule D. annexed to the M1Confirmation of Executors (Scotland) Act, 1858 . . . F7

4Proof of identity and relationship may be required.

The commissary clerk of the county may require such proof as he may think sufficient to establish the identity and relationship of the applicant.

5Commissary clerk may refuse to proceed if not satisfied that whole estate not more than 150l.

If the commissary clerk of the county has reason to believe that F1the estate and effects of which the intestate died possessed exceed F2the value specified in section three of this Act , he shall refuse to proceed with the application until he is satisfied as to the real value thereof.

6Commissary clerk may administer oath. “Commissary clerk” to include “commissary clerk depute.”

F1. . . The term “commissary clerk” shall throughout this Act include “commissary clerk depute.”

7Procedure and fees under this Act to be regulated by Act of sederunt.

Any rules and orders and tables of fees requisite for carrying this Act into operation shall be framed and may from time to time be altered by the Court of Session by act of sederunt . . . F1.

8Inventory duty not affected by this Act.F1

Provided always, that nothing herein contained shall be construed to effect any duty now payable on inventories of personal estate.

Schedule AForm of Inventory and Relative DeclarationF1

Inventory of the Personal Estate, wheresoever situated, of [name and description of deceased] who died at on the day of 18.

Scotland.£s.d.
1.Cash in the house
2.Household furniture and other effects in the deceased’s house
3.Stock in trade and other effects belonging to deceased
4.Sum in bank; viz., [specify it with interest thereon to date of declaration to Inventory.]*
*[Add any other estate in the usual form.]—

At , the day of one thousand eight hundred and, F2[name and address of applicant] (hereinafter referred to “the applicant”) hereby declares, that the said died at upon the day of , and had at the time of his [or her] death his [or her] ordinary or principal domicile in the county of : That the F3applicant is the [widow or son or daughter of the said deceased , and is desirous to enter upon the possession and management of the deceased’s estate as his [or her] executor: That the applicant does not know of any testamentary settlement or writing relative to the disposal of the deceased’s personal estate or effects, or any part thereof: That the foregoing inventory, signed by the applicant and the said as relative hereto, is a full and complete inventory of the personal estate and effects of the said deceased wheresoever situated and belonging or due to him [or her] beneficially at the time of his [or her] death, in so far as the same has come to the applicant’s knowledge: That the value at this date of the said personal estate and effects, including the proceeds accrued thereon down to this date, does not exceed F4£36,000 sterling: That confirmation of the said personal estate in Scotland [England and Ireland as the case may be] is required in favour of the applicant. F5. . .

Confirmation issued under the Act 38 & 39 Vict. cap. 41

Confirmation Dative of A.B., who resided at [name and description of deceased]

The said A.B. had pertaining and resting owing to at the time of his [or her] decease.

[Take in inventory of estate to be confirmed.]

I, , Esquire, Commissary of the county of , considering that the said A.B. died at on , and had at the time of death his [or her] ordinary or principal domicile in the county of . And seeing that C.D., his [widow or son or daughter, or her son or daughter] has given up, on F1declaration , an inventory of the personal estate and effects of the said A.B., at the time of death, including the proceeds accrued thereon to date of declaration , situated in Scotland [England and Ireland as the case may be], amounting in value to , and has F2declared that the whole personal estate and effects of the said A.B. does not exceed in value F3£36,000, which inventory, as before written, has been recorded in my court books, of date F4.... Therefore I, in Her Majesty’s name and authority, decern, make, constitute, ordain, and confirm the said C.D. executor, [or executors] dative qua [relict or next of kin] to the deceased, with full power to to uplift, receive, administer, and dispose of the said personal estate and effects, and grant discharges thereof, if needful to pursue therefor, and generally every other thing concerning the same to do that to the office of executor dative qua is known to belong: Providing always, that shall render just count and reckoning for intromissions therewith, when and where the same shall be legally required. Given under the seal of office of the commissariot of and signed by the clerk of court at , the day of one thousand eight hundred and

Commissary Clerk.

Schedule CF1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .