Great, no doubt, in the opinion of the hon. Member, was the privilege of being at liberty to go into the Court of Chancery; but he (Mr. Henley) did not think it was necessary to enact that any man might go into the Court of Chancery, because he always had the weakness or the prejudice of believing that the gates of the Court of Chancery, like those of some other place that should be nameless, was always open. Let the House pass what laws it pleased, there always would be some hardship in the distribution of property to be endured; but as he believed that this Bill would increase at least twenty-fold the cases of cruelty among the poor, he had always opposed it, and until he had better reasons than he had yet heard for supporting it, he should resist its progress. SIR GEORGE LEWIS said, he confessed that he was unable to assent to the view taken of the probable operation of this Bill either by the hon. and learned Member for Yarmouth (Mr. Mellor) or by the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) whose opinion upon questions of this sort had deservedly great weight in that House. It had been argued on both sides of the question as if this were a narrow and limited Bill, as if it did not affect the whole mass of real property, but would in its operation be confined only to a small portion of that class of proprietors. As he understood the Bill, its effect would be to assimilate the law of descent of real property to that of personal property. It proposed that in cases of intestacy all real property should go to the administrator. He apprehended that the effect of that would be that all real property under this Bill would be distributed according to the Statute of Distributions. Was that or was it not, the effect of this Bill? Therefore it would apply in all cases of real property, whether held in large or small portions. The effect would be to extinguish that class of persons who were denominated heirs. There would be no such thing as inheritance. No person would hereafter be heir to landed property. That, he apprehended, would clearly be the effect of the Bill. The measure, too, would extend to all clases alike. It would not affect merely the owners of cottages or the holders of small portions of property; it would extend to the largest estates in the kingdom, and of course to the estates of those who sat in the House of Peers. Now, what was the effect of the existing law of the descent of personal property in this kingdom? If a man did not make a will with respect to his real property, the whole of it would descend to his heir, subject to the right of his widow to dower during her life-that is to say, to the third part of the rent of the estate. Therefore, he confessed that to him the sentimental argument with respect to the case of the widow seemed to be wholly inapplicable. Under ordinary circumstances, ample provision was made for the widow. [Mr. MELLOR: There are the uses to bar dower.] He was quite aware that where a settlement was made dower was barred. He was speaking of the cases where there was no settlement and where there was no will, but where the landed estate descended according to the course of common law. Therefore he apprehended there was no doubt the widow would have her dower. And that disposed of the arguments with respect to the case of the widow. But in the case of personal property, if there were no settlement and no will, it would be distributed, as they knew, under the Statute of Distributions, among the next of kin. That being the state of the law, when a person made a settlement or a will, whatever provision he made for younger children out of his real property was so much for their benefit in addition to what the common law would give them, and therefore, if a large portion was given to the eldest son and smaller portions to the younger sons and daughters, no feeling of injustice arose, because the portions under the ordinary marriage settlement for the benefit of the younger children were so much in addition to what they would have by descent according to common law. They could have no reason for complaining of injustice or partiality on the part of their parents. But if this Bill became law that feeling would be entirely inverted. A person who made a marriage settlement according to the present system of marriage settlements would be robbing the younger children of the rights which the common law would give them. He would be accumulating upon the head of the eldest son property which was given to him as it were capriciously, arbitrarily. and unjustly in addition to what he would derive in case of intestacy under the common law. Perhaps in our time no great practical change would arise out of that state of things. He durst say the custom of making marriage settlements might be extended to another generation; but he apprehended that the younger children would feel that they had been robbed of their rights, and that after a time the custom of distributing real estate equally among the children would obtain. He was not now inquiring whether that would be a good or a bad custom. The Bill, then, was not limited, as the description of it by the hon. and learned Member for Yarmouth might lead the House to suppose, to the owners of small portions of real property and to the prevention of vexatious litigation with respect to that property. It was, in fact, a Bill to alter the whole custom of this country with respect to the devolution of landed property. He thought it would be very desirable, before they proceeded to vote upon the Bill, that they should understand what was the question on which they were about to vote. They knew that in France since the Revolution the state of the law had been quite different from the provisions of this Bill. Real property in France was distributed compulsorily, by the operation of law. That was not the state of things now proposed to be introduced. There would, no doubt, be the liberty of making a will under the operation of this Bill, but in future the custom in this country would be to divide landed as well as personal property equally among all the children. The House, therefore, had to consider what would be not only the economical, but the political effects in this country of distributing real property equally among all the children. They must be aware that, if they abolished the name of heir from our law, if they got rid of the idea of hereditary landed property, even for a single generation, and even if they retained the other portions of the constitution, there would be a want of harmony between the working of the different parts of our system which would lead to most important political consequences. They ought also to consider what would be the economical effect of dividing estates on which houses had been erected of a magnitude suitable to those estates, and of introducing great changes of proprietorship, altering altogether the customs of the country with respect to the tenure of land. He was quite aware that much might be said in favour of the system of dividing landed property equally among all the children. There were many countries in which that system had produced a large class of small proprietors, and had led not perhaps to their enlightenment or civilization, but at all events to their prosperity. But, looking to the state of things which existed in this country, and to the manner in which our tenure of landed property was mixed up with our political constitution and the established order of things, he was not prepared to assent to the second reading of this Bill without any expression of public opinion in its favour, and without any discontent, so far as he could see, with the existing law and custom as to the devolution of landed property. MR. HENLEY: One word in explanation. The right hon. Gentleman is mistaken if he thinks I am not aware that the Bill is applicable to all landed property. I merely argued that the higher and middle classes are better guarded than small proprietors. MR. MONCKTON MILNES said, he thought the law of intestacy deserved the serious consideration of every able and philosophical statesman, and he should give his vote for the second reading of this Bill. What the House had to consider was, whether they would assimilate the statute law of this country to the real political feelings and desires of the large class of small proprietors in the country. The privilege of making a will was held most dear in this country and the free disposition of property was one of the great causes of our prosperity. A great orator had argued in that House that the descent of real property to the eldest son was part of the constitution; and he (Mr. Milnes) had often corrected the mistakes of foreigners as to their notions of primogeniture in this country. He had always taken a pleasure in informing them that although the devolution of real property to the eldest son had greatly obtained in this country, yet in point of fact its disposition was as unfettered as the disposition of personal property. He believed, however, the operation of the law as to the descent of property in cases of intestacy was unjust, and contrary to the wishes of the middle and lower classes. He could mention honourable instances of Members of that House who, in cases of intestacy, had distributed the property to which, as eldest sons, they became entitled, they believing that the consequences of intestacy were not intended. He would not go into the question as to the compulsory distribution of landed estates. This Bill had nothing to do with the political effects of the division of real property; but there was a view of the case to which he might allude, inasmuch as France had been referred to, and that Не was, that, in the opinion of many, the subdi- made no provision. Among cases that vision of real estate in France had in reality came into litigation it not uncommonly proved its safeguard amidst the numerous happened that there was a will and an convulsions to which it had been subjected. executor as to personal, but intestacy with In fact the operation of the French law had regard to the whole of the real estate; gone far to create a Conservative public the consequence of which was that, inasopinion there, and he might also point, as much as there was a-will and an executor, an instance where distribution of property in the eye of the law there was no inteswas advantageous, to the garden of Bel- tacy. But to such a case as that the Bill gium. The right principle was that in before the House would have no application case of intestacy the land should go, as it whatever. There was also another case might be judged it would have gone if there which might occur. Indeed, it was by no had been a will, moreover having due re- means a rare occurrence that a testator gard to the interests of the body politic. who had made a will devising his real proHe could see no social advantage of hu- perty, nevertheless died intestate with remouring the vanity of a man who wished gard to his personal property. Now under to enrich one son at the expense of all the the present Bill administration would be rest, in order to perpetuate his name. That granted of the effects of the man who made was a motive which he thought the Legis- such a disposition, and under that adminislature ought not to encourage. The protration and in defiance of the will the real perty in case of intestacy ought to be dis- estate would be taken by the administrator tributed fairly, as was the case with the and divided amongst the next of kin. rest of the human race-leaving a man the could multiply instances of this kind, for power still to will as he pleased-even the their name was legion. The view taken whole-of his property to his eldest son, if by the right hon. Gentleman opposite (Sir he so thought fit. He thought the argument George Lewis) was therefore perfectly corof the right hon. Gentleman opposite with rect that the Bill destroyed and put an end respect to the cottage property was a fal- to the descent of real estate, as the term lacious one, and that the Bill would not was generally used, and the consequence affect its inheritance to the extent to which would be that every trust estate in the some hon. Members seemed to apprehend. kingdom would pass to an administrator, Believing that this Bill was sound in prin- to be sold by him for the payment of the ciple, and that its effect would be to give debts of the trustee. But it did not stop there. the greatest freedom in the disposition of The hon. Gentleman (Mr. Locke King) real property, he should, as on former occa- might tell him that he did not intend it; sions, give his vote against the remnant of but there was no doubt that his measure a bad system. would have that effect. The hon. Gentle. THE SOLICITOR GENERAL said, he man had told the House the other night, felt glad this Bill had reached a second and those who supported the Bill had rereading, for two reasons, first, because it peated it that day, that the case which would enable the promoters to discuss and they considered to be a hardship was the explain its principles fully; and secondly, case of the younger children. But was because if, as he hoped, it was rejected, it this Bill confined to younger children? On would set the question at rest for a long the contrary, it applied to next of kin time. It was also an advantage to have generally. Again in this country there the real scheme of the Bill before the was a difference in the law with regard to House in a printed form. He should, the descent of estates which came from however, regret if the measure were re- the father's and of those which came from jected on technical grounds, because he de- the mother's side. If a man inherited sired to consider it on its broad principles, from his father and died intestate, the yet it was impossible not to make a passing estate went to his father's relations; and allusion to the form in which the hon. if he inherited from his mother and died Member had embodied his principle, and intestate, it went to the mother's relations. to the consequences which would flow from There was no community between the the adoption of that principle in the form father's relations and the mother's reproposed. In the first place, then, thelations, and certainly no moral right as Bill was one which would fall short of the object the hon. Gentleman wished to obtain, for there were two cases, of no extraordinary occurrence, to meet which he had between the two that they should share in the property. What, then, would be the consequence of this Bill on the present law? He would take the case of a man who possessed an estate acquired by descent from his mother. Suppose he had one cousin on her side, and nineteen cousins upon his father's side, who had nothing whatever in a moral point of view to do with the estate. Under the Bill the result would be the division of the estate into twenty portions, and while the cousin on the mother's side, who had a moral right to the estate, would get only onetwentieth, the cousins on the father's side, who had no moral right whatever, would get nineteen-twentieths. Another consequence of the Bill would be this, that whereas by the present law, when there was no heir, the Crown took the estate by escheat, the rights of the Crown by escheat would be destroyed, and, in the absence of an heir, given to an administrator, who was no heir by blood. The next result he would mention was a singular one, when contrasted with the views of the hon. Member for East Surrey. Take the case of an estate-a large family estate-descending to a married woman. She had one or more sons; she died, and if she had no power to make a will she had no power to devise, and must, of necessity, die intestate. What would be the effect of this Bill in a case of that sort? Why, it would take away the estate from the children, who had the moral right to it, and give it to the father, who had a statutory right to be her administrator, and who would be entitled under this Bill to take her personal and her real property. These were some of the consequences which would flow from a Bill of this kind-a Bill, too, not now introduced for the first time, but which had been considered and brooded over year after year, and which the House was asked to read a second time this day. He (the Solicitor General) freely admitted the principle that mere inaccuracies or defects in a Bill which could be easily remedied in Committee ought to constitute no objection to its second reading; but when he found a measure based upon the principle of turning land into money, and passing it through the hands of administrators, and that the consequences he had described would result from that principle, he did not believe that the House would be prepared to give the Bill a second reading. Upon the introduction of the measure the hon. Member for East Surrey had certainly put a case of great hardship in the present state of the law. He mentioned the case of a man who might have contracted for the purchase of an estate, but died before the purchase could be completed. If he died intestate, his heir-at-law could come in, and, as against the rest of the family, require the personal property of the deceased to be applied in payment of the purchasemoney of the estate. Therefore, said the hon. Member, the heir-at-law took the land contracted to be purchased, and the purchase-money was paid for him to the detriment of the other members of the family. That such was the law of the country at the present day, he (the Solicitor General) was ashamed to admit. He agreed with the hon. Gentleman that it was a very great discredit to the law. He agreed with the hon. Gentleman that it ought to be remedied. But why they should change the whole course of descent in this country because there was that grievance connected with the payment of the purchase-money of an estate he was utterly at a loss to conjecture. Of all men in the world the hon. Gentleman was the last who ought to use such an argument in support of this Bill; because, in 1854, the hon. Gentleman proposed, and he was glad to say carried through this House, a Bill which remedied another injustice which formerly existedthe injustice which authorized the heir-atlaw or the devisee to have any mortgage money due upon a real estate paid out of the personal property of the testator. That Bill of the hon. Member was a very wholesome amendment of the law, and he (the Solicitor General) had not been able to understand clearly at the time why the hon. Gentleman had not included the case of hardship of which he now complained, which was identical in principle, in that Bill. If he might presume to make a suggestion to the hon. Gentleman, it would be that he should bring in a Bill to amend his former Act in this respect; but Parliament ought not to be asked to convulse the whole country, and alter the rules of descent for that simple purpose. But to come to the general question. He maintained, and he thought the House would agree with him, that those who came forward and proposed to Parliament to make what every one admitted to be a very grave and important alteration in the law of descent in this country, were bound to show three things. In the first place, they were bound to show that there was a strong desire entertained for legislation upon the subject; in the second place, that the present law occasioned hardships; and, in the third place, that the change which they proposed was consistent with expediency and sound policy. In the first place, then, he would ask, who it was that desired this change? Some of them, indeed, he knew, and their motives also. The hon. Member for Sheffield (Mr. Hadfield), for instance, on the introduction of the Bill the other night, told the House what his motive was in desiring it. He said he supported the Bill for this reason only, that it put an end to all differences between land and money. [Mr. HADFIELD: Hear, hear!] That hon. Member, no doubt thought that, if carried, it would enable the State to levy a probate duty on land, and treat it in every respect as so much money in the Funds. At all events, the reason for the hon. Gentleman's support to the Bill was not so much to remedy any hardship occasioned by the present law as to carry out a wild theory which he entertained, that there ought to be no difference for any purpose whatever betwen land and money. What were the reasons of the hon. Member for East Surrey himself for proposing this change? His argument was this. He said, and very plausibly and adroitly said, "if you look at this Bill you will see that it does not touch any of he great proprietors of the country, or med lle with your entails or settlements; it merely effects the simple object proposed on the back of the Bill, and provides for the case of a man who dies intestate." But the hon. Gentleman had written a book, and it was always a great advantage to have the detailed and well-considered opinions of the person who proposed a change on a matter of such gravity as the one before the House. Well, what did the hon. Gentleman say in his book, which he (the Solicitor General) had had the greatest pleasure in perusing? He said, "I am opposed altogether to the principle of entails and settlements." Ile said, "It has been suggested that my Bill affects entails;" and, he added, "I do not think it will directly; but if it does, it will only make me like it the better. It will be an advantage from the Bill that I had hardly calculated upon." Therefore the hon. Gentleman stood committed to this in his own recognized publication-that his desire went beyond the passing of the Bill; that he looked upon the Bill not only as a measure for the relief of younger children, but as ensuring, if it passed into a law, another object which he had equally at heart-namely, the abolition of the laws of entail and settlement in this country. MR. LOCKE KING: I beg the hon. and learned Gentleman's pardon. I do not "I feel there is no reason to object to this measure lest it should tend to increase the number of landed proprietors. If it did so if it should cause a decrease in the size of some of the benefit than even I expect from it. I have already already overgrown estates-it will confer a greater shown that it cannot interfere with entails; that entails are an evil; and that this measure ought not to be refused from an imaginary fear that it might tend to correct what seems to me so great an evil." That was the hon. Gentleman's desire therefore in passing this Bill. Well, who asked for the measure out of doors? True, some hon. Members opposite had laid petitious upon the table that day, but what he wanted to know was this. The question was one which concerned all the owners of land in the country, and in considering what the State ought to do for the owners of land when they died intestate, the very first object ought to be to ascertain what the owners of land would do themselves, for everybody admitted that they would have a perfect right to dispose of their land as they pleased. What was their view, then, as evidenced either by their practice or their expressed opinions? What petitions had been received from those whose wills or intestacy were really concerned in this measure? He was at a loss to understand that in this manner there had been the least expression of opinion upon the subject. And if they had not petitioned respecting it, the natural way to judge of the opinions of the proprietors of land was to look at what was their practice. Was it, or was it not, the practice, then, of the greater body of the owners of land to dispose of it in a manner more or less consistent with what the law did in case of intestacy? He said, and said without fear of contradiction, that unquestionably it was. Settlements were just as much the expression of the wishes of the owners of land in the disposition of their property as wills. There was no great difference between the two. He took their practice as a body, therefore; he took their habit and custom as the expression of an opinion that they were satisfied with the existing state of the law in the country; for they |
