ILLUSORY APPOINTMENTS. (Hansard, 24 February 1830)

Mr. Bernal
, after complimenting the Solicitor General on the trouble he had taken to reform this part of the Law, said, that he thought a measure so important as one affecting the whole landed interest of the country which that did, ought not to be hastily passed. One of the topics which would come under the consideration of the Commissioners appointed to inquire into the state of the Law, was this of Appointments, and it would be better to wait till they had finished their laborious task; they should recommend something different from the Bill of his hon. and learned friend, and to place the House in a situation of embarrassment, and bring the Law into additional confusion. His hon. and learned friend proposed to assimilate the rule of Equity, to the rule of Law. A person might give property, over which he had a power of Appointment, as he chose, giving 100,000l. to one child, and passing over another, and such an Appointment would be valid. But, if it appeared that the share was not substantial, but Illusory; relief might be obtained in Equity. The. Bill of his hon. and learned friend did away the power of so obtaining relief, for it enacted that the Illusory or nominal Appointment should be valid in Equity, as well as in Law. He could have wished too, in framing so important a measure 919 that technicalities had been avoided, and the rule laid down in plain and comprehensive language. He thought he perceived on this point a difference between the Bill of his hon. and learned friend and a recommendation of the Commissioners he had before alluded to, which induced him to think it would be better not to hurry forward the Bill. His hon. and learned friend had another Bill before the House, making real estates liable for the payment of debts, which as it might be said to remodel the whole Law of property, was a most important measure. He did not understand that the Commissioners he had already twice alluded to, had recommended any such measure, but only that they thought it a fit subject of investigation. He was not himself averse from the principle of that Bill, indeed he highly approved of it; but he knew from the opposition Sir Samuel Romilly had formerly encountered on introducing a similar measure, how much it was likely to be opposed, and therefore he should wish his hon. and learned friend to arm himself with all the authority of those Commissioners, before he pressed it to a decision.

The Solicitor General
observed, that the Bill then before the Committee had been introduced to the House last Session, but it had been allowed to stand over, and owing to that circumstance it had become generally known, and he was happy to say was generally approved of. It had been his object not unnecessarily to alter the Law, but to give facilities for administering it. At present if a man left 1000l. to his brother, devolving on him the duty of sharing it among his children, instead of sharing it amongst them himself, that might be not a substantial, but an Illusory Appointment. The brother might give to one child 500l., and to another only 100l., and therefore it was, that he thought such general and Illusory Appointments ought not to be sustained. He wished by the measure before the Committee to induce persons to point out specifically how their property should be applied. That was the object of his measure, and it was one to which he felt himself bound to adhere, and which he thought his hon. friend must approve of.

§ Mr. Trant
objected to the measure being pressed forward in so thin a House, and recommended the hon. and learned Gentleman to postpone it to some other day.

§ Mr. Tennyson
said, he approved of the measure being then discussed, and expressed his approbation of the exertions of his hon. and learned friend in giving up so much of his time to effect improvements in the law,

§ Mr. Doherty
also recommended that the measure should be immediately proceeded with, as all those were present who were at any time likely to take part in the discussion.
After a few words from Mr. Tennyson and the Solicitor General.

§ Mr. O'Connell
said, that he had an Amendment to propose. They were then speaking in a language that was not generally intelligible; and as the law was made to be obeyed by all, he thought that the first reform ought to be in its language, so that all might understand it. He should be glad, therefore, that what was meant by a substantial share, and an illusory share, both in Equity and Law, should be more clearly denned. Passing from that, however, the Amendment he had to propose, would prevent any person having the power to make an Appointment after the passing of the Act, unless he gave to every child a substantial share. His object was, to make it obligatory on the father to provide for each of his children. It might be said, that he was taking from the parent the power of distributing his property, and he admitted that he meant to limit that power, because he knew that it was sometimes put up to auction, as it were in families, and otherwise much abused. He should prefer seeing it so settled on the child, that this could not occur. He was aware that he should differ on that point from the hon. and learned Gentleman, who was probably attached to the law of primogeniture, but he believed that the public would go along with him, in desiring rather to see an equal diffusion of wealth, than an accumulation of it in enormous masses. He gave the hon. and learned Gentleman credit for his intentions, but having himself reflected much on the subject, he was convinced of the propriety of his own Amendment, and he should propose it, though it might not be carried, in order that it might be entered on the Journals of the House, as he thought it well calculated to put an end to needless litigation.

§ Mr. Courtenay
said, the clause of the hon. and learned Member compelling, as he understood it, a parent to divide all his 921 property equally among all the members of his family would prevent him from apportioning his property according to the wants of his children, and would be an unnecessary and unfair restriction. It might be tolerated if the power of a parent were always exercised from whim and caprice; but because that was sometimes the case, the hon. and learned Member would not allow this power to be exercised under the influence of reason which it was in the great majority of cases.

§ Mr. O'Connell
admitted that the inconvenience stated by the hon. Gentleman would sometimes occur; but he thought there was only a choice of evils, and that the Amendment he proposed by getting rid of much litigation, would be the least evil of the two.

The Solicitor General
said, he disapproved of the hon. and learned Gentleman's Amendment which would take away all power from a parent. His own Bill allowed the parent to give either a large or a small sum. One child might be sickly or a cripple, and therefore requiring a larger provision than others. Another might be already provided for by other means, and the clause of the hon. and learned Member would prevent the parent from providing for the wants of his feeble offspring, and would compel him to add to the wealth of a child already rich; because a power of disposing of property might be abused by individuals that was not a sufficient reason for depriving all men of its enjoyment. The same argument would justify every possible restriction, for there was no liberty or power which a man might not and which some men did not abuse. Believing that to adopt the Amendment of the hon. and learned Member for Clare would be a great calamity, he should resist it.

§ Mr. O'Connell
said his object was to prevent abuse by giving aliquot portions of property to each child.

§ Mr. Tennyson
agreed with the Solicitor General. He supposed, he said, that the hon. Member for Clare wished to assimilate our law to that of France, which he believed would be a great and even vital injury to the people of this country. There could, perhaps, be no greater evil than to make children independent of their parents. The latter might sometimes abuse their power, but it was the gift of nature and ought not to be destroyed by the law. The Amendment proposed would destroy 922 the aristocracy and dislocate society. It would have a most prejudicial effect, he also believed, on the industry of the people. Parents would not labour and accumulate to be the mere slaves of their children, and to deprive them of the power of disposing of their property would paralyse all their exertions, and be a more serious blow to our national prosperity than all the commercial restrictions that were ever invented. He should certainly oppose the Amendment, both then and afterwards, should the hon. and learned Member submit it to the House as a substantive proposition.

§ Mr. Trant
again objected to their proceeding with so important a measure.

The Attorney General
supported the Bill, and said he was convinced that no Gentleman acquainted with the subject could object to the Bill.

§ Mr. Alexander Dawson
also supported the Bill. He said he considered it as tending to remove doubts without making any alteration in the law. At present a lawyer could take his fee, but he could not give an opinion on a case of powers which was entitled to any confidence. It was high time, therefore, that the law should be defined and settled, and in doing that, he did not know that it would be of much importance to the community, whether property were equally or unequally divided. The measure merited his support, because it went to remove the doubts in which the subject was involved, and he, in common with others, felt that the country was deeply indebted to the hon. and learned Gentleman who had brought in the Bill.

§ Sir Charles Wetherell
said, that he thought the Solicitor General had pursued a most praiseworthy course by bringing in a Bill to remedy a particular evil, and not proposing any sweeping measure of Reform. The Bill only went to fix the minimum to which any one share in the distribution of property should be reduced, which would prevent litigation and put a stop to Illusory Appointments. At present, if a parent were to divide a sum, say 100,000l. among his children, and was to give one child so small a sum that it bore no proportion to the shares of the other children, the law would hold such an Appointment to be Illusory. When the minimum was fixed every man might at least know, which he could not do as the law now stood, whether or not he were making an Appointment which the law 923 would not sustain. He thought it very undesirable that the clause limiting the power of parents should be introduced. There were various reasons why the parent should retain the power of making a distribution of property suitable to the wants of his children.

Mr. O'Connell's
Amendment, was then put and negatived.

§ Mr. O'Connell
then proposed another clause as an Amendment, leaving half his property at the free disposal of a parent, and compelling him to divide the other half in aliquot parts among all his children. He did not wish, he said, to deprive a man of the power of disposing absolutely of property which he had acquired by his industry. His plan, however, was consistent with the ancient custom of Gavel-kind, which he considered to be a very rational practice. Nor did he think that the inconveniences dreaded by the hon. Member for Bletchingley (Mr. Tennyson) from the equal distribution of property would be very great. Already a large portion of the property of the country was personal, which was generally so distributed and no inconvenience arose.
After a few words from the Solicitor General, opposing the clause on the ground that no rule could be applied with justice to all families, the Amendment was negatived without a division. The Bill then went through the Committee, and the Report was ordered to be received tomorrow.