Definition
In Scots law, the formal process by which a sheriff determines and assigns to a widow her terce — that is, her legal right to a liferent of one-third of the heritable lands her husband possessed at his death. The kenning is the official ascertainment and demarcation of that proportionate share, carried out under the authority of the sheriff. It is functionally analogous to the assignment of dower in English law: where English practice employed a dower proceeding to set out the widow's portion, Scots practice employed the kenning to fix and deliver the terce.
Why It Matters in Research
This term belongs to a cluster of distinctly Scottish legal concepts governing a widow's heritable rights, and it will appear almost exclusively in pre-20th century Scottish legal sources. Researchers working in historical Scots property law or succession records should understand that the terce itself was abolished as a prospective right by the Succession (Scotland) Act 1964, which replaced the old system of legal rights in heritable property with a unified scheme of prior rights and legal rights in the estate generally. Kenning to the terce therefore has no modern operative significance in Scottish law but remains essential vocabulary for reading older conveyancing records, sheriff court proceedings, and institutional writers.
The term is a compound: "kenning" (the act of ascertaining or fixing) plus "to the terce" (toward or in satisfaction of the terce right). Researchers should not expect to find either component defined in isolation in English legal dictionaries; both are terms of art from the Scots institutional tradition. Sources such as Erskine's Institute and Bell's Dictionary are the primary reference points, and Bouvier's entry is essentially a condensed paraphrase of those authorities rather than an independent analysis. When cross-referencing Bouvier on any Scots law term, treat the entry as a pointer to the Scottish institutional writers rather than as a self-contained authority.
Researchers tracing a widow's interest in historic Scottish title chains may encounter references to a terce without any corresponding kenning, particularly where the widow accepted a conventional provision in lieu of her terce (a discharge by contract) or where the lands were redeemed. The absence of a kenning proceeding does not necessarily mean the terce right was not in play.
Historical Dictionary Support
Bouvier's single entry draws directly on two foundational Scots law sources: Erskine's Institute (II.9.50) and Bell's Dictionary. Erskine describes the terce as arising by operation of law upon the husband's death and identifies the kenning as the sheriff's formal act of identifying and setting off the widow's third from the remaining heritable estate. Bell's Dictionary reaffirms the characterization as a sheriff-administered assignment. Both sources treat the kenning as a necessary procedural step to give the widow possession of her portion, paralleling the English writ of dower that commenced the common law assignment process.
Bouvier's description — "an assignment of dower by sheriff" — is a serviceable translation for readers trained in English law, but it should be used carefully. The terce and common law dower are analogous, not identical: the terce was fixed at one-third by rule, whereas dower at common law also defaulted to one-third but operated through different procedural mechanisms and attached differently to the husband's seisin. Bouvier's gloss papers over these distinctions in the interest of accessibility for American readers.
No English-tradition dictionaries — including Black's — provide meaningful coverage of this term, reflecting its purely Scottish provenance. Researchers should not expect to find it in general Anglo-American legal reference works.
Jurisdictional Note
This term is specific to Scots law and has no application in English, Irish, or American legal systems. It is historically operative only in Scotland and only in relation to heritable property held under the pre-1964 Scots succession regime.