About The Courts
Before the Reformation of 1560, bishops had the power to administer the estates of the deceased in cases of intestacy and to confirm testaments submitted to them by parish priests. For a few years after 1560, the situation was somewhat confused, but in February 1564, the first commissary court was established in Edinburgh by letters patent. Another twenty-one were set up over a considerable period, taking over the duties of the former church courts.
The districts covered by the jurisdiction of commissary courts were termed “commissariots” and the principal court officials “commissars”. The geographical boundaries of the courts’ jurisdiction remained the same as those of the pre-Reformation church courts and largely corresponded to the boundaries of the mediaeval dioceses. They bear no relation to present-day administrative boundaries, nor did they correspond to the old county boundaries. For example, the county of Perth was covered by Dunblane, Dunkeld and St Andrews Commissary Courts. This can cause confusion particularly when the county in which a person died bears the same name as a Commissary Court. Look at Counties & Commissariots List and Courts Map for more information. You may also like to look at Scottish Counties in the Knowledge Base on www.scan.org.uk
The Edinburgh Commissary Court was the principal court and heard appeals from the local courts. It also had the power to confirm testaments of those who owned moveable property in more than one commissariot, of Scots dying outside Scotland (‘furth of the realm’), and of others who held assets in Scotland.
Under the terms of the Commissary Courts (Scotland) Act of 1823, the system of commissary courts was abolished.
Sheriff Courts assumed official responsibility for the confirmation of testaments from 1 January 1824. However, the transfer of duties did not happen overnight. Some commissary courts continued in existence for a number of years after their statutory ‘demise’ and continued to confirm testaments (for example, the Edinburgh Commissary Court continued in existence until 1836). There is therefore considerable overlap between the testamentary records of the commissary courts and those of the sheriff courts. As such, it is advisable to check both courts during this period.
The term ‘commissary’ was not abandoned however. It continued to be used by the sheriff court when it was exercising its executry powers. The descriptions ‘commissary court’ ‘commissary’, ‘commissary depute’ and ‘commissary clerk’ all appear in the records. Each sheriff court had its own method of organising its executry records, so these records are not arranged in a consistent manner.
The commissary office of Edinburgh Sheriff Court assumed responsibility for confirming the executry of Scots abroad who died leaving moveable property in Scotland.