Alexander Colquhoun, 15th/17th of Luss, who died in 1617, left a substantial probate file, some 17 handwritten pages long. The record is of immense genealogical value, and it provides much more than just a list of his children. As Alexander was able to leave a will, the probate is considered a testament testamentar, which contains an introductory clause, an inventory of possessions, a confirmation clause (i.e., a validation of the inventory by the court for the benefit of the executors), and the will itself. The document on file in the National Records of Scotland (and digitized at ScotlandsPeople) is written in “secretary hand,” an old form of cursive that can be challenging for anyone not trained to read it. To make matters worse, the 17th century dialect in which it was written uses archaic Scots spellings, vocabulary, and legalese unfamiliar to many of us.
William N. Fraser, a trained legal scholar, transcribed the will, which appears in volume 1 of his work, pp. 230-232. However, the will forms only the last two of the seventeen pages in the file, and the remainder (primarily the inventory) has not been transcribed or even, to my knowledge, investigated, although I am hoping that will soon change.
Scottish probate in the 17th century categorized property into two types. Heritable property included land, buildings, ownership rights, and other fixed things. Heritable property was not typically dealt with in wills, since by the rules of Scottish succession, all heritable property was automatically inherited by the eldest son by right. Movable property included goods, money, livestock, and other things that could be moved. Movable property was divided into three equal shares: the widow’s part, the children’s part, and the dead’s part. (It would be two equal shares if the spouse was not living.) As with heritable property, the widow’s part and children’s part were determined and distributed automatically by right. All children shared equally in the children’s part except for the eldest son, who did not participate because he received the heritable property. The only part of the estate that the deceased could specify in the will was the dead’s part of the movable property, which could be bequeathed to the spouse or to any of the children (over and above their by-right share of the estate), or to anyone else such as extended family, friends, and associates. Because the spouse and children were dealt with automatically, it was often the case that they were not named in a will, with the dead’s part going to others outside the immediate family.
Provisions of Alexander’s Will
Fortunately, Alexander’s children were named in his will, since all except the oldest son, John, were designated as co-executors, and special provisions were made for several of them, including John. This is not surprising, since Alexander took care to put all of his children on firm financial footing from very early ages. In 1602, at age about 6, son John received liferent income from the Kirk of Luss and chaplainry of Rossdhu, and a charter from King James VI/I of the lands of Auchintorly and Dunnerbuck (Fraser vol. 1, pp. 239-240). In 1607, at age about 5, son Alexander acquired land rights and rental income (Fraser vol. 1, p. 234). In 1617, at age about 11, son George acquired rights to a debt owed by Thomas Fallasdaill through actions taken by his father shortly before his death (Fraser vol. 1, p. 235). At an unknown date before 1617, son Patrick (probably 6 years old or less) acquired a mortgage on property at Aldochlay, worth 200 merks, taken out by the Colquhouns of Camstradden; upon Patrick’s death, it was transferred to his brother Adam (Fraser vol. 2, p. 202). These are just those cases for which Fraser found documentation.
The will transcription can be found in Fraser volume 1, so I will not repeat it here. However, I can summarize it as follows. First, Alexander names all his sons and daughters except John as his executors and representatives with respect to his movable property. Second, he gives to daughter Jean whatever silver and gold are in his chest, over and above what she received by right, and that she could redeem her rightful share to brother John in exchange for £10,000 as dowry. Third, eldest son John, likely the only child of age at that time, was designated “helper and consenter” to his father’s will, and as fiar of Luss, he promised, in the presence of the witnesses, “to perform and do my father’s will in the whole premise above-written, and further to the will of my brothers and sisters, as best I can.” At the time of Alexander’s death, most of the children were much too young to manage their own shares of the inheritance. Perhaps because of John’s own relative youth and potential conflicts of interest, Alexander designated Rev. Andrew Boyd, Bishop of Argyll, and the laird of Buchanan (probably a close relative of his wife’s) as co-guardians of the younger children “with power to settle various matters in regard to the provision which Sir John should make for them.” Sir John made his provisions for each sibling as they came of age, in consultation with Boyd and Buchanan.
Other stipulations in the will were that (1) youngest son Adam was to receive something related to the Irish property, and (2) second son Humphrey was to receive money through various means to help purchase the estate of Balvie for his exclusive use. (Note the bequest to Humphrey was in the form of money [movable] and not of property owned by Alexander [which would have been heritable and therefore disallowed].) Witnesses to the will were John Colquhoun of Camstradden, Mr. Archibald Cameron of Inchcailloch in Loch Lomond, John Colquhoun of Milton (Barnhill), and John Buntein of Ardoch.
There is also an extensive supplement to the will, including the following bequests, most to be paid at the next St. Martin’s Day (11 November).
- To Thomas Falasdaill, 1,000 merks.
- To John Colquhoun of Camstradden, 1,000 merks.
- To Robert Colquhoun of Ballernick, 1,000 merks.
- To John Colquhoun of Milton, 500 merks “in consideration of his part of the hardship of Colquhoun,” i.e., his help in the Battle of Glen Fruin.
- To Patrick Colquhoun of Milton, 500 merks, also for his help at Glen Fruin.
- To Andrew Colquhoun and Beatrix Colquhoun, both servants of Patrick above, 500 merks and £100, respectively.
- Mr. Archibald Cameron’s debt of £100 to be discharged, as a token of goodwill.
- To James Colquhoun, 500 merks.
Witnesses to this addendum were Thomas Fallasdaill of Ardochbeg, Mr. John Campbell, minister of Luss, James Colquhoun at Port of Rossdhu, John Colquhoun “his eldest sone” (it is unclear to me whether this was James’s son or Alexander’s own son), and Duncan McInturnour of Tor.
The beneficiaries and witnesses to the will who were from outside of Alexander’s immediate family are important to recognize, since they were clearly close friends and associates of the laird of Luss in 1617. As such, they are candidates for people who might have settled as freeholders on the laird’s recently acquired property in Ireland. I will deal with them further in a future post.
A Break in the Will
In Fraser’s transcription, he notes a mid-sentence break in the original will, about which he says, “A portion is here evidently omitted.” This break occurs at a crucial point in the text: “Lykas, he ordanes his eldest sone Johne, Mr. Andro Boyd, Bischop of Argyle, the Laird of Buchanan, …. …. His will is, that notwithstanding quhatsumever provisioun is anent the Ireland landis, that Adame haif the same.” This apparently omitted portion (the two ellipses in this quote) I have marked with two red slashes in the image of the handwritten copy above. Note there is no physical break in the paper, no ink stain, and no acknowledgment on the part of the transcriber that anything is missing. It is possible that this is in fact a transcription or memorial of an original copy where there is such a physical break, but there is no way to know.
In any case, the missing portion probably included details of how his eldest son John was to make provisions for his younger siblings, as he began to describe just before the break; Fraser makes some attempt to address this in his book (vol. 1, p. 248). Right after the break is some provision to be made for youngest son Adam regarding the recently acquired Irish estate. It seems likely that the missing portion would have included equivalent provisions for the middle sons, Alexander, George, and Walter, since there is no reason to think they should have been neglected.
It is also likely that the missing portion included some further details about the Irish estate vis-à-vis Adam. The surviving sentence on this topic has often been interpreted as Alexander bequeathing the estate of Corkagh to Adam. However, this is probably incorrect, since by Scottish inheritance law, Corkagh would have been considered heritable property and passed by right to the eldest son, Sir John. This appears to be what happened, since later documents show Corkagh in the possession of Sir John, with Adam’s name never mentioned. This sentence must instead mean that Alexander made some provision whereby a certain portion of income derived from the Irish lands was to go to Adam, given as part of the “dead’s part” of his movable property.
There is an interesting twist to this. Alexander was a Scottish citizen, and prior to 1707, England and Scotland were separate kingdoms. As England was in control of Ireland, for Scots to buy and sell property in Ireland, they needed to obtain letters patent of denization. This granted them the status of “English denizens of Ireland,” an intermediate status between citizen and alien. Alexander obtained his letter of denization from King James VI/I on 20 May 1617, just three days before his death. (He is called in the patent roll, “Sir Alexander Colquhon [sic], of Corkagh, in Co. Donegal, Kn’t,” although he was not in fact a knight, as I mentioned previously.) This may have been done to make his acquisition of Corkagh retroactively legal.
As I understand it, denizens could buy and sell Irish property, but they could not inherit property (see here). Oddly enough, however, it seems that they could still bequeath property to non-denizen heirs. Among the instructions to the Lord Deputy of Ireland and Council promulgated on 24 May 1629 was the stipulation that “All Scotishmen, Undertakers in Ulster, and in other Places there, ar to be made Free Denizens of that Our Kingdom; and no Advantage for want of Denization to be taken against the Heirs or Assigns of those that be dead.” (Sir Richard Cox. Hibernia Anglicana, or, The History of Ireland, from the Conquest Thereof by the English, to This Present Time…., p. 51.) I take this to mean that the heirs of denizens, whether denizens themselves or not, could inherit property from denizens who are deceased. This explains why Corkagh was subsequently in possession of Sir John, for whom no letter patent of denization has been found. I invite help with this interpretation from any expert in old Scottish probate law.
As I mentioned above, I intend to deal further with the topic of Corkagh in a future post.
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Genealogy of the Calhoun Family 