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THE FOURTH REPORT OF THE to Wills, which, we are bound in fairness to
say, is a clear, correct, and able treatise on REAL PROPERTY COMMISSIONERS.
w the subject. We consider it as a highly valu
able authority; and we cannot help thinking, We have now before us the fourth portion of that in future times these Reports, emanating the labours of the Real Property Commission as they do from persons so well qualified to ers. It is devoted to the inportant subject of direct professional opinion, will be considered Wills, which had previously engaged the atten- only inferior to the decisions of the Judges. tion of the Ecclesiastical Commissioners, whose | In the present Report, particularly, an abstruse suggestions are already before our readers a. and difficult subject is treated at once scientifi. The present Commissioners encountered a pre-cally and simply. The Commissioners first point liminary difficulty, in the restricted nature of out the various conflicting rules respecting the their authority, which in strictness warrants execution of Wills, according to the property to only amendments in the law of Real Property. which they relate, and shew the evils which They declare, however, that they could not arise from the present state of the law. They take “ a just or comprehensive view of the conceive that no good reason can be found for subject of Wills, with respect to Real Property, any difference in their execution; and they without considering the rules which relate to propose that all wills, of every kind of property. Wills generally;” and they proceed accordingly should be in writing, signed at the foot by the to treat generally of the whole subject; there- testator or some other person by his direction, in following the example of the Ecclesiastical and in the presence of two witnesses. This Commissioners. In fact, we have repeatedly recommendation, it is to be observed, is in conpointed out the advantages which would have formity with the recommendation of the Ecfollowed the consolidation of all the present clesiastical Commissioners. commissions, under the general title of “A The Commissioners next propose, that no Commission to enquire into the Law of Eng- wills made by infants or married women shall land,”—which, possessing the present advan- | be valid, except as to the latter class under a tage of having in its number persons skilled power, or as to personal estate with the conin the different branches, would have been able sent of her husband. to have allotted the most efficient men to the Next, that all freehold and copyhold estates. several subjects of enquiry, and thus have and estates pur auter vie, where there is no prevented much unnecessary labour, and dou- special occupant, and all estates capable of ble enquiries on the same matter, which have being conveyed or transferred by any act inter hitherto frequently occurred. Passing this vivos (except estates tail), and all rights of enmatter, however, let us proceed to state the try, inay be devised and bequeathed by will. principal recommendations contained in the That all property acquired by a testator subpresent Report. For the details and minor sequent to his will, may pass by it, unless a points we must refer our readers to the Report contrary intention appears. itself.
That no will shall be revoked otherwise than The learned Commissioners commence by an by another will or codicil, or by some writing elaborate statement of the present law relating executed and attested in the same manner as is
required for the validity of a will, or by burna 2 Monthly Record, p. 162, et seq. | ing, cancelling, or tearing with the intention NO, CXLI.
The Fourth Report of the Real Property Commissioners.
of revoking it, by the testator, or in his pre- the Register Office to be cancelled, and shall sence and by his direction.
| direct some officer of the Court to send a copy That the proof of wills and the grant of lets of the decree to the Register Office, which tcrs of administration, in the Spiritual and shall forthwith be entered on the register, with other Courts now entitled to grant probate of its proper date, and noticed or referred to in wills and letters of administration, shall be dis- the book, where the entry of the registration continued, and that all the jurisdiction of such of the will shall be made in the margin of the Courts, with respect to legacies, accounts, in- page in which such registration shall be enventories, and other matters relating to testa- tered. ments and administrations, shall be abolished. That in suits for carrying into execution the
That a General Register Office for wills shall trusts of a will with respect to real or personal be established in the metropolis, and that wills property, or for the administration of assets, of every description shall be registered.
it shall not be necessary to establish the will, That upon the registration of the will, an nor to make the heir or next of kin defende office copy thereof, and of the affidavit, (which ants; and in such suits the original office copy shall be distinguished as the original office of the will shall be received as evidence of its copy), shall be issued to the person or persons validity; but the decision in such a suit shall by whom the saine shall be registered, accord- not be binding on any heir or next of kin, not ing to the plan contained in the report. | being a party to the suit.
That the stamp duties which are now pay. That the jurisdiction of granting and recallable on a probate of a will, shall be made pay-ing letters of administration, now exercised by able on the original office copy of it, and that the Courts of Probate, shall be transferred to a penalty be imposed on an executor who ne- the Court of Chancery. glects either to prove or register a will.
That the same parties as are now entitled to That before a will shall have been registered, have letters of administration of any effects any person interested in disputing it may de- granted to them by any Court of Probate, shall posit at the Register Office a caveat, in writing be entitled to have letters of administration of under his hand, to prevent the registration of the same effects granted to them by the Court the will, which caveat shall be in force for the of Chancery. space of two calendar months, unless before That where there is no dispute respecting the end of that time the same shall be with the right to letters of administration, the same drawn, or a will shall be established by the de- may be granted by a Master or Master Extracree of a court of equity; and no office copy ordinary in Chancery. of any will of the testator named in such caveat That when any executor refuses to act, or shall be issued while such caveat shall remain any next of kin refuses administration, a dein force.
claration of such renunciation in writing, That the original office copy of the will and signed by such executor or next of kin, shall of the affidavit shall, unless the will shall have be registered in the Register Office for Wills, been declared to be invalid by the decree of a and an office copy of such declaration shall be Court of Equity, be received as conclusive evi- admitted as sufficient evidence of such renundence of the validity of the will at law and in ciation, to enable a residuary legatee, or next equity, with respect to personal estate and the of kin, or a creditor, to obtain letters of adtitle of the executor, except in suits in equity, ministration. brought for establishing or setting aside the That letters of administration shall be regiswill.
tered in the Register Office for Wills, by deThat Courts of Equity shall have jurisdic- positing the same, with affidavits in duplicate, tion to determine the validity of wills with re- in the same manner as above proposed with spect to personal estate, in any suit instituted respect to the registration of wills." either by an executor or administrator, or any That caveats against the registering of letters legatee claiming under a will to have it esta- of administration may also be entered at the blished, or to have the trusts of it carried into Register Office, in like manner as caveats effect under the decree of the Court, or by against the registering of wills. any next of kin, or other person claiming ad- That all wills, documents, and indexes, versely to the will to have it declared void, and which are now deposited in the registries of the registration of it prevented or recalled the different Courts of Probate, be transmitted
That in any such suit, when the validity of a to the Register Office. will is disputed, an issue shall, if the Court in That every probate or administration hereits discretion shall think fit, but not otherwise, tofore granted, and not adverse to the title of be directed to a Court of Law, in like manner any party in possession of any property of the as an issue may now be directed to try the va- testator or intestate, notwithstanding it may lidity of a will with respect to real estate; and now be void or voidable, in consequence of the conduct of the prosecution and defence having been granted out of a wrong Court, upon such trial at law shall be respectively shall be as valid as if it had been granted out given to such parties as the Court of Equity of the proper Court, or each of the proper shall think proper.
Courts, except where another probate or adThat every decree of a Court of Equity which ministration has been obtained out of the proshall declare a will which has been registered per Court, or each of the proper Courts. to be void, shall also order the executor to 1 That when any person, to whom any real carry in the original office copy of the will to property shall be given by will for an estate
Real Property Commissioners' Report.-Reasons against the Local Courts Bill.
tail, or an estate in quasi entail, shall die in the That all acts done by an administrator under lifetime of the testator, leaving issue who letters of administration which shall be voidwould be inheritable under such entail, and able, shall be valid, notwithstanding such such issue shall be living at the death of the letters of administration shall afterwards betestator; and also where any person, being a come void or be revoked; but persons who child or other issue of the testator, to whom shall have received any property as next of any real or personal property shall be given by kin, shall be liable in equity to account for will, for any estate or interest not determin- and transfer the same to the legatees, or perable at or before his or her death, shall die in sons entitled thereto under the will, without the lifetime of the testator, leaving issue who prejudice to the rights of purchasers for vashall be living at the death of the testator, such luable consideration. gift shall not lapse, but shall take effect as if That a Court of Equity may discharge an the death of the testator had happened before executor or administrator from his office, in the deaths of such tenant in tail, or child or like inanner as a trustee may be discharged; grandchild.
and upon any such discharge, may grant let. That where the devise of any real property ters of administration to any other person or shall fail, in consequence of the death of the persons, which letters of adıninistration shall derisee in the lifetime of the testator, or be- he as valid as if the executor or administrator cause it is contrary to any rule of law, or other so discharged had died. wise incapable of taking effect, and there shall be a residuary devise in such will, the property It will be seen that inany most important comprised in the devise which shall fail shall changes are proposed in this branch of the pass by the residuary devise, unless an inten- law,—the reasons for which are stated at length tion to the contrary shall appear by the will. in the Report. We shall print this important
That when any real property shall be devised | document in an Appendix, and thus enable our to any person, who, at the time of the testa- readers, if they please, to see whether sufficient tor's death, shall be his heir or one of his co- grounds for the intended alterations are given; heirs, such heir or co-heir shall be deemed and we cannot take leave of this Report withto take as a devisee, and not by descent. out repeating, that the profession is indebted to
That the assent of an executor or adminis- the present Commissioners for the learning trator shall not pass the legal title to any le- and ability which they have displayed in the gacy, and that such title shall pass from an investigation of the subject. executor or administrator to a legatee without assignment or release, except as to chattels, which pass by delivery.
That the executor of the executor, or of the survivor of two or more executors, shall be the BEASONS AGAINST THE LOCAL personal representative of the first testator, in preference to any administrator, notwithstanding the first executor or surviving executor
[Continued from page 3.] shall have died without having registered the will.
16. That the costs of proceeding in the That where an executor who has registered the will shall die, leaving any other executor | Local Courts will be greater, in the majority or executors surviving, who shall not have then of instances, than they need be in the Superegistered the will, such surviving executor rior Courts, because the London and Counshall be the personal representative of the tes-try practitioners, by transacting much of tator, and be entitled to register the will the same kind of business, are enabled to
That any executor, notwithstanding he has divide the amount of the charges, and thus registered the will, may at any time before he lone set of fees only is paid by the suitor: a has intermeddled with the assets, or acted as 1 ° the personal representative of any person of saving which
son of saving which cannot be effected in the whom his immediate testator was executor, Local Courts : on the contrary, the suitor renounce and disclaim being the personal re- must pay his own attorney for preparing presentative of such other person, by making the cause for trial, in addition to the costs a declaration in writing to that effect, and re-l of the local attorney. gistering the same at the register office for 17. That since the number of Judges has wills. That letters of administration granted at a
tal been increased, and many improvements time when there shall be an executor who has | effected in the law and practice of the not registered the will, shall be voidable only Courts, for reducing the expense and delay and not void, notwithstanding there may be of actions at law, the business at the assizes an executor living and not discharged, who and at nisi prius may be effectually demay have acted, or may afterwards register the spatched by proper arrangements. will; but such letters of administration shall 18. That the greater the facilities of become void when a will has been registered \1:.:. by an executor. or when such letters of admi. I litigation, the greater will be its extent, nistration shall be revoked by order of the especially amongst the more numerous Court of Chancery.
classes of society; and if the costs to be
36 Reasons against the Local Courts Bill.- Amendments in Real Property Bills.' allowed are of very moderate amount, the | AMENDMENTS IN THE REAL PRO. effect will be a vast increase of petty litigation and animosity, especially as every step of the cause is to be taken on the spot, and
LIMITATIONS OF ACTIONS. hostility will thus be constantly fomented.
19. That an inferior order of practition. The following clause has been added to this ers will establish themselves in the local
| Sect. 37. That when, on the 31st day of districts, and excite and continue nitigation, December, 1833, any person who shall not instead of effecting arrangements, which, in have a right of entry to any land, shall be engeneral, the country solicitors are now titled to maintain any such writ or action as ready to promote; and the present mode of aforesaid in respect of such land; such writ or practice, which affords many opportunities action may he brought at any time before the of adjustment before the expense of a trial said 31st day of December, 1834, in case the is incurred, will be at an end.
same inight have been brought if this act had
not been made, notwithstanding the period of 20. That the proposal of limiting the
he twenty years, hereinbefore limited, shall have plan, in the first instance, to two counties, expired: will not afford an adequate trial of its İn sec. 44 it is provided, that the act shall efficiency, as it may be easy to obtain two not extend to advowsons in Ireland. And a competent Judges, and to render the prac- clause is added, authorising the amendment of tice of two Courts uniform.
the act during the present session. 21. That the remedy which the suitors
DOWER. now have of proceeding in the Superior The clause as to the commencement of the Courts, is attended with the advantage of operation of the act remains as before, viz., bringing their debtors to terms of early that the act shall not extend to the dower of settlement, in almost every instance of an any widow whose husband shall die before the undisputed debt, whilst the proposed plan
Ist day of January, 1834, nor to dower out of holds out encouragement to delay justice.
land in which any widow would have been
entitled if her husband had died before the lst 22. That by compelling the plaintiff to
of January, 1834 ; and shall not give to any bring his action in the Local Court where will, deed, contract, engagement, or charge, the defendant resides at the time of bring- executed, entered into, or created, before the ing the action, it affords him an opportunity 1st of January, 1834, the effect of defeating (after contractingadebt) of removing to a dis- / any right to dower. tance, or into the jurisdiction of some Local! The 6th sec., as the bill stood, which proCourt supposed to be more favorable to to ho mora favorable to vided that charges might be apportioned by
a Court of Equity between the widow and beir, debtors; and, in fact, gives the defendant
has been struck out, as well as the 15th see. the choice of the Court and Jury before which provided that the act should not extend whom the cause shall be tried.
to gavelkind, or borough english, or copyhold 23. That the very imperfect and un- lands. satisfactory manner in which justice is now
CURTESY administered in many of the County Courts,
The clause providing that the act should in Courts of Request, and other Local Courts,
not take effect where the wife shall have died has deterred claimants from proceeding before the 1st of January, 1834, has been therein; and it is not probable the proposed amended by the following addition : “ Nor new Courts will be better conducted. shall the act extend to any tenements or here.
24. That it is impossible to obtain a ditaments in which a husband would have sufficient number of barristers to abandon / been entitled to an estate as tenant by the their practice and expectations in the Su
curtesy of England if his wife had died before
the 1st of January, 1834, having had issue by perior Courts, who will be competent to him
ni ! him born alive, and capable of inheriting the decide all the questions before them in same tenements or hereditaments." all kinds of actions at law, in bankruptcy The section which provided that the act and in equity, so as to secure the respect of should not extend to gavelkind, or borough the community.
english, or copyhold hereditaments, is now also 25. That the large diminution which the omitteil in this bill. Bill will occasion in the business of the
INHERITANCE. Superior Courts, will gradually impair the The commencement of the act remains the efficiency of the Bar, and ultimately that of same; and limitations made before the 1st of the Bench.
January, 1834, to the heirs of a person then living, shall take effect as if the act had not been made.
The following clauses in the last bill are now struck out: Sect. 5, That land may be limited
Amendments in the Lunatics Commissions Bill.-Notices of New Books.
after the 31st of December, 1833, to any person and carefully executed the plan of his and his heirs, on the part of any of his lineal book. ancestors of whom he shall be the heir; and
the heir; and The first part treats of the constitution in every such case the land shall descend, and
Jand jurisdiction of the Courts, and the apthe descent thereof shall be traced as if such ancestor had been the purchaser.
I pointment of the judges and officers. These Sect. 12. That after the death of an alien
sections are followed by the Rules of Court, who has not been passed by in the descent, his and practical remarks. The interest which descendants may inherit.
now prevails regarding Local Courts, induces us to extract the following account of the origin of those which exist in the city of
London, AMENDMENTS IN THE LUNATIC COMMISSIONS BILL,
“ It has been considered, and probably witle
some degree of discrimination, as being proThe following are the amendments of the bable, that these Courts assumed their funccommittee, according to the bill as last re- tions in the reign of King John, and about the printed on the 10th instant:
1 time of the division of the Aula Regis into The visitors to be appointed by the Lord different judicatures, or in the reign of Edward Chancellor are to be two physicians and one I., when, in pursuance of the example set by barrister of a certain number of years standing. John, the whole frame of the judicial polity of The salaries of the medical visitors are not this country was new modelled. In support to exceed 5001, a year, and the other 3001., 1 of this position, it will be seen, that in the year besides such travelling expences as the Lord 1199 King John granted, or rather confirmed, Chancellor may think reasonable.
the sheriffwick of London to the citizens; and Lunatics, &c., to be visited once or oftener it seems to have been considered, that anterior every year by one of the medical visitors. to the year 1293, the Courts were exercising
The visitors to report to the Lord Chancellor their functions with a tolerable degree of firmon the case and treatinent of lunatics, &c.
ness, inasmuch as in that year three men had The secretary of the visitors to have a salary their right hands cut off at the Standard in not exceeding 3001. a year, and the clerk 2001. Cheap, for rescuing a prisoner arrested by a a year,
city serjeant. A fund for payment of the salaries and ex * It is by no means improbable that these pences, to be raised by a per centage on the Courts, in their primitive state, were better income of the lunatics, &c.
known as the Sheriffs' Torn, than the Sheriffs' Committees to pay such per centage to the Courts, the former being à Court in the darker Bank, upon receiving notice.
ages, where all matters demanding judicial The Masters of the Court of Chancery to interference were held, usually before the shecertify the amount of income, &c.
riff: of this fact, however, we have no direct Payments out of the fund to be by checks evidence; yet it does appear that they were signed by the Lord Chancellor.
designated and known as the Sheriffs' Courts The accounts to be audited yearly and filed. shortly after, inasmuch as in the year 1318,
when King Edward II., at the instance of the citizens, " for bettering the same, and to per
petuate certain things in the same city, to be NOTICES OF NEW BOOKS. observed and had,” by the 4th article contain
ed in the said charter, prohibited the Mayor
(whose court, although not before mentioned On the Constitution, Jurisdiction, and Prac- as an existing court of judicature, appears at
tice of the Sheriffs' Courts of London ; 1 that time to have been exercising its functions) with Tables of Costs of prosecuting and from “ drawing to himself the sheriff's plea in defending Actions therein; and an Ap
an And the Chamber of London, or holding other pleas pendix, containing an Abstract of the City
than those the Mayor, according to the an.
cient custom, ought to hold.” Charters, &c. &c. By Thomas Lewis, I the Mayor had been accustomed to hold, are
What pleas Gent., many years connected with the at this day incapable of being demonstrated said Sheriffs' Courts. London: A. Max-with accuracy." well. 1833.
Our author states also, that these Courts *This is a useful book for the practitioners are mentioned in the charter of Edward 4, of the city, and those who have occasion to in subsequent charters, and finally in 2 W. resort to the Sheriffs' Courts, which are & M., passed for reversing the judgment on now likely to be called into more general quo warranto, of Trinity Term, 31 Charles 2, use. We understand that these, as well as and for restoring to the citizens of London the Lord Mayor's Court, are to be excepted all their ancient rights, &c. from the operation of the 19th section of The second part of the book describes the the Local Jurisdictions Bill. Mr. Lewis Practice of the Courts, from the commenceappears to have arranged his materials well, ment to the conclusion of the action, except