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464), the Executors of a minister sued for the stipend of 1663, which had been paid by the Heritors to the successor of the minister in the charge. The minister died in Jany. of that year. The defender pled that "annat is only due to the wife and bairns of the defunct, and this minister had none." The Lords found that the whole year's stipend belonged to the Executor as nearest of kin." This could only have been as annat conform to the decision in Smeiton's case.

As there appears thus early to have been a variance as to the exact amount of Ann payable on the decease of a minister, the following statute was passed 23d Aug. 1672, in the reign of Charles the Second. (The statute will be found quoted on page 462 of Morrison's Dictionary.)

"Act for the Ann due to the Executors of Bishops and Ministers.

"The Kings Majesty, judging it necessary, for the good of the Church, that such a stated and equal course be taken for clearing and securing the Ann due to the Executors of deceast Bishops, beneficed persons, and stipendiary ministers, as may be suitable to the interest of the Executors, and no discouragement or hinderance to the planting of the vacand Benefices; doth, therefore, with advice and consent of His Estates of Parliament, Statute and Ordain that in all cases hereafter, the Ann shall be an half year's rent of the Benefice or Stipend over and above what is due to the Defunct for his Incumbency, which is now settled to be thus, viz. -If the Incumbent survive Whitsunday, there shall belong to them for their incumbency, the half of that year's Stipend, or Benefice, and for the Ann the other half; and if the Incumbent survive Michaelmas, he shall have right to that whole year's rent for his Incumbency; and for his Ann, shall have the half year's rent of the following year. And that the Executors shall have right hereto, without necessity or expenses of a confirmation."

This Act was passed merely to settle the amount of the Ann, and not to provide as to its division amongst the parties who might have right thereto. Though stating that it is due to Executors it as clearly recognises it as not being Executory, and as such not requiring confirmation. The word Executors must, therefore, be taken as meaning next of kin in the absence of relict and children.

The first case which occurred after passing of the Act 1672 is 16th July 1673, Ker v. Parishioners of Morumside, Mor. 471.

The relict pursued for the whole year's stipend, as annat, her husband having died in April. "The defenders alleged no process until the annat were confirmed, because it would belong to the minister's executors, and be subject to his moveable debts. It was answered that the annat being due after the minister's death, was not in bonis defuncti, but was granted to his nearest friends ex gratia. The Lords found no necessity of confirmation of the annat."

The next case in order of time is 22d Jany. 1679, Spence and Clerk v. Craig, Mor. 465. The relict, as executrix of the minister, confirmed the annat, and was sued by the legatees of the minister. The widow pled that "she had the sole right to the annat in respect there were no children, and that it was not in bonis defuncti, nor due to the defunct for his service, but a privilege indulged by law in favour of his nearest relations, so needs no confirmation, and if he have no bairns all belongs to his wife, which excludes his nearest of kin. It was answered that the annat being a favour to the successors of beneficed persons, though it need no confirmation, yet it must belong to the nearest of kin as well as to the wife, which is cleared by the late Act of Parliament 1669 (sic ?) "anent annats," declaring them to belong to executors without confirmation; therefore the executors can only be accountable to the wife for the half where there is no children. The Lords found the answer relevant," thereby sustaining the claim of the executors for one-half of the annat. This decision repeated that given in the case of Scrimgeour, which was before the statute 1672, thereby clearly holding that the statute made no alteration in the law of divisions at least between the wife and the next of kin.

The next case in the order of time is 18th March 1686, Alexander v. Cunningham, Mor. 470. A minister having no children assigned the annat to his brother's son. His sister competed as nearest of kin, and alleged it was not the defunct's but, being given in the time of Popery, when churchmen were neither allowed (?) wives nor children, it belonged to the nearest of kin. "The Lords preferred the nearest of kin." Harcarse in reporting the same case states that it was pleaded for the sister "the annat was not in bonis defuncti, but designed by way of charity to the relict and nearest of kin." Answered for the assignee," by the Act 1672 the annat is mentioned as due to the minister and his executors, and so is at his disposal." Replied, "The said Act clears only

what is the annat, and not whom it is due to, and by the Act 1647 (?) it is due to the nearest of kin. And though the Act 1672 mentions executors, that is upon supposition that the nearest of kin were executors."

The next case is 7th Feb. 1694, Donaldson v. Dr Brown of Dolphinton, Mor. 471, where it was found the annat was a legal gratuity, that could not be burdened with the minister's debts, not being in bonis defuncti.

In the case 8th Feb. 1709, Shiels v. the Town of St Andrews, it was contended for the defenders that as annat was a gratuity introduced by law in favour of ministers' relicts and children left commonly poor, it has only place where the stipend is payable out of the teinds, and not in royal burghs, where the ministers are paid out of the common good." The Lords, by a plurality, found all stipendiary ministers included in the Act 1672, whether paid by money or victual, and therefore found annat due to a brother and executor of the late minister of St Andrews.

The same question, as in the case of St. Andrews, arose between the widow of one of the ministers against the magistrates of Edinburgh, and the same decision was there repeated, 9th June 1714, Mor. 467. In the pleadings it was mentioned that "the annat was in use with us before the Reformation, as appears from the 5th Act of the Parliament 1546, but the extent and boundaries of it were never clearly settled till done by the Statute 1672."

The decision in the case 14th July 1747, Macdermit, is the only one which raises some difficulty as to the division between relict and children. It is very shortly reported by Kilkerran, and repeated by Morrison, p. 464, in these terms-"It being controverted between the relict and the children of Mr. John Macdermit, late second minister at Ayr, whether the annat belonged to the children, per capita, or if the children were only entitled to the one-half equally amongst them, and the relict to the other half," the Lords found the children were only entitled to the one half.

It is matter of surprise that, notwithstanding the diversity of authority in the institutional writers, and consequently the practice throughout the country, there appears no decision in the books since the case of Macdermit in 1747.

Lord Stair, writing in 1681, after the Acts 1669 and 1672 (of which it is not unlikely he was the framer), lays it down that

"the annat divides between the relict and nearest of kin if there be no bairns." But he gives no opinion as to the division between bairns and the widow (B. 2, T. 8, S. 34.) Mr. Brodie, in his edition of Stair, makes no note on the text under this head.

Sir George M'Kenzie, in his Institutes, lays it down that the annat is equally divided between the relict and children (B. 1, T. 5, S. 16.) Sir George repeats the same opinion in his Observations on the Statutes, p. 150.

Forbes, in his Institutes, in 1722, p. 56, states "that the annat is equally divided between the relict and the children."

Bankton, T. 8, S. 204, cites the statute 1672, and declares that, "if the deceased left a wife and children, the annat divides between her and them by equal portions, she getting one-half and they the other."

Erskine, in his Institutes, (in 1733, B. 2, T. 10, S. 66), explains the annat "as borrowed from Germany. In several Protestant churches there, as of Pomerania, Frankfort, &c., a year's rent of each parochial benefice was soon after the Reformation by Luther given on the incumbent's death as a gratuity to his wife and children, besides what was due to himself for his incumbency, to which they gave the name of annus gratiæ. In Saxony, Bavaria, Magdeburg, &c., only six months' stipend was allowed." After tracing the decisions, and noticing the statute 1672, as fixing the extent of the right, the learned jurist adds (S. 67)-" Writers differ about the proportions by which the ann is to be divided between the incumbent's widow and children. Some affirm that the widow ought to draw no more than an equal share with any one of the children, and some that the one-half of the ann goes to the widow by herself, and the other to the children, among whom it is proportioned in capita, which last opinion is supported by a decision July 1747, Children of Macdermit (Dicty. p. 464). But if we set aside that authority, a third opinion may perhaps be more agreeable to the Act 1672, which gives the right to executors, without the least mention either of widow or children; for if it be given to executors, it ought to be governed by the rules of succession in executry, by which one-third of the ann would, like other moveable subjects, go to the widow, where there are both widow and children, and the remaining two-thirds be divided among the children, per capita.” It is worthy of note that Mr Erskine does not cite the authors before his day who held different opinions on the point, and they are now nowhere to be found. Lord Ivory on this passage writes-"This

opinion is contrary to all the authorities, excepting perhaps Stair (B. 2, T. 8, S. 34), where the mode of expression is not free from ambiguity." Lord Ivory cites all the opposing authorities, and seems to think Mr. Erskine, in his Principles, to be of a different opinion. Mr. Erskine, in the earlier work of his Principles, states, "if the annat were to be governed by the rules of succession in executry, the widow, in case of no children, would get one-half; the other would go to the next of kin; and where there are children, she would be entitled to a third, and the other twothirds would fall equally among the children. And the Court of Session, probably led by the general practice, have in this last case divided the ann into two equal parts, of which one goes to the widow, and the other among the children in capita (1747, Children of Macdermit.")

It is remarkable how subsequent authors have been led in the direction indicated by Mr Erskine's doubts.

Hutchison, Writer on Ecclesiastical Law (vol. 2., p. 477, 3rd ed.), adopts Erskine's view of the division of annat in all cases as of Executry.

Bell in his Law Dictionary (1838) states that "the rule for dividing the ann between the widow and the children does not seem to be very clearly fixed. But Erskine inclines to adopt the same rule of division which would be followed in regard to executry, that is, to give one-third to the widow and two-thirds to the children per capita."

Connel on Tythes (p. 91) states—“The right of Ann, as now understood, was unknown in times of Popery, and seems to have been introduced into Scotland in the reign of James the Sixth, by an ordinance of the Bishops, in consequence of a letter to them from the King." For this, he refers to the case of Earl Marischall as reported by Durie. Mr Connel proceeds to observe "that before the Act 1672, it was debated whether the widow was entitled in a question with the nearest of kin, to the whole or the half of the annat, and by the case of Scrimgeour, she was found " right to a half only." He then cites the Act 1678, and the case of Macdermit, and the opinion of Mr Erskine that this decision is not agreeable to the terms of the Act 1672, because subjects which go to Executors, suffer a separate division when there are a wife and children, and a wife gets only a third of this; and the learned author concludes thus, "the ann never belonged to the minister at all, but is declared by the Act to accrue to his

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