§ The Attorney General moved that this Bill be recommitted.
§ The House went into a Committee. The clauses to the 13th were agreed to.
§ On the 13th clause being read,
§ Sir William Follett moved as an amendment that the words "as well as real property" be omitted; the effect of which would be to leave the law as regarded real property as it at present stood. The object of the Bill was to allow persons of the age of seventeen to dispose by will of real as well as of personal property. He wished the law as far as concerned real property to be left in its present state.
The Attorney Generalwas very desirous that there should be one age named at which both sorts of property should be disposable by parties. He would agree to the feeling of the majority of the Committee, whether the age should be twenty-one in reference to both, or twenty-one in reference to realty, and seventeen as to personalty, but he certainly thought individuals should not be allowed to dispose of personalty under seventeen years of age. As the law at present stood, children of ten, twelve, or fourteen years old might will away money to any amount, provided they were of sound mind.
Dr. Lushingtonsaid, there could not be a greater anomaly in the law than that which told them that a person might not dispose of real property to the amount of 40s.; and told them in the same breath, that he might dispose of personal property to the value of 500,000l. There was just the same temptation, just the same probability of deception as to personal, as to real estates. But his hon. and learned Friend, (Sir W. Follett) proposed to remove a part of the anomaly: he said, "I prohibit you from devising real property till the age of twenty-one." But, in his opinion, as he had often observed, the law ought to be the same with respect both to personal and real estates, and that it was infinitely better at twenty-one, than any other age; and he had no objection, therefore, to imposing a restriction up to twenty-one.
Mr. O'Connellsaid, that the law, as it then stood, was a disgrace to national justice. There was no rule as to personal property: the court decided whether the party was competent: that was certainly the worst mode of legislating upon the case: that state of the law had been endured to the present year; and really it was not creditable to England that it had been suffered so long. Now they had come to remedy it, by striking out the anomaly which had been adopted for ages. A person could dispose of personal property, or chattel interest, to any amount whatsoever. It was proposed now to correct the anomaly by diminishing the power, that is, by keeping from a person the disposal of his property so far as related to chattel interests, till he was seventeen, and increasing the power so far as related to real property by lowering the age at which it could be disposed of to seventeen. The only question for the House was whether it were better to give the dominion over real property, or to take it away from chattel property. The hon. Member had convinced him that the method proposed by this Bill was the best way to remedy the anomaly, and he should certainly oppose the Amendment.
Dr. Nicholsaid, that he thought the present law fixed a very fair age, and he should support the Amendment of his learned Friend.
Sir George Stricklandobserved, that the reason the age of twenty-one had been recommended by some Members was plainly this, that that age was fixed on for a variety of other purposes, that in the minds of the community at large it was regarded as the age of competency, and that the grounds of any departure from it would not be admitted as valid by people in general, and would lead to uncertainty and dissatisfaction. He preferred the Amendment, leaving the law as it stood, or making the age twenty-one for all, to the alteration proposed by the Bill.
§ The Solicitor Generalwas sensible of the difficulty of drawing a line, but he thought that the suggestion of his hon. and learned Friend, the Member for Exeter, would put the law on the best footing, that is, if the age of twenty-one were fixed upon as the disposing age for both species of property. He agreed that seventeen would not satisfy the community at large, because it would be comprehensible to very few. As to the idea 1285 that any privilege at present enjoyed ought to be looked upon as a vested right, he repudiated it altogether, and he therefore fully concurred in the substitution of twenty-one for seventeen.
§ Mr. Cutlar Fergussonprofessed himself favourable to seventeen or eighteen, rather than to twenty-one. There was no analogy between the act of disposing of property by will and by contract, since it was one thing for a man to indulge his inclinations, and quite another to form a sound judgment respecting the equivalent which he might receive in any given contract. As to the mischiefs that might arise from capricious and absurd wills, experience had proved that they were much more frequent amongst the very old than amongst the very young. Inasmuch as a minor might become a parent, the privilege of disposing of his property as he thought proper amongst his own offspring ought not to be denied to him.
§ Mr. Lynchsupported the Amendment. He admitted that it took away a right, but it did so for the purpose of conferring a general advantage, making the law what it should ever be, uniform.
§ Mr. Bernalcontended that they ought to deal with personal property in the same manner as with real. It should be recollected that in modern times the great mass of the property of the country was personal; the national debt leases for 999 years were all chattels. In former times, personal property existed only in name; consisting only in a few hoarded ingots of gold and silver, or anything of that kind; but now personal property was often more valuable even than real. He agreed with the Member for Dublin as to the necessity of uniformity, but they must fix upon an arbitrary period: he thought the age of twenty-one was best, because it opposed a greater barrier and security against undue influence. Looking at the habits of the youth of both sexes in this kingdom, he would put it to the Committee whether it would not be more consistent with the general welfare of the community to restrain the power of disposing chattel property until the age of twenty-one, rather than extend it? At twenty-one it was probable that a great many of the errors of sixteen or seventeen would be seen and avoided, for two or three years caused a great change in the mind of young people at that period of life. Every parent and guardian knew that at seventeen their 1286 charge was not safe, nor even twenty-one; but as there should be a period to nonage, and as twenty-one was nearer to ripe reason than seventeen, he thought there could be no hesitation which to choose in the mind of any man who looked at human nature as it actually existed. He could not see why there should be any distinction between personal and real property in the present state of society. Personal property in 1835 was quite as valuable as freehold property. Why then should not both have equal protection against the errors of youth or the efforts of designing individuals?
§ Mr. Charles Bullerobserved, that wills and contracts were matters essentially different, and the feelings of the young were as much in accordance with those of persons of mature age, as the feelings of those far advanced in life. Besides that, the power of making wills often operated most advantageously on the Law of Primogeniture; he was therefore unwilling to agree to anything tending to circumscribe that power.
§ Sir William Follett,in reply to the hon. and learned Member for Kircudbright, said, that the Amendment certainly went to take away a vested right; but then the original clause, which the hon. and learned Member supported in opposition to it, was to precisely the same effect. With respect to the age of seventeen, nothing could be urged in its favour. It was entirely unknown to the law of the country, while twenty-one was recognised in almost every legal Act referring to person or property. If, therefore, the law, in a majority of cases, fixed upon twenty-one as the age of perfect capacity, why depart from it in the present instance? Why not equalize that to the other? There was no more magic in the age of twenty-one than in that of seventeen; but as a time should be drawn somewhere, it would, for all useful purposes, be best to fix it at a period which everyone recognized, and which common-sense acknowledged.
§ Mr. Warburtonsaid, the real question at issue was the age at which individuals were competent to devise their personal property; and it was one which, whether lawyers or not, hon. Members would find no difficulty in resolving. In adopting the Amendment of the hon. and learned Member for Exeter, he was clearly of opinion, that the Committee would be legislating against the natural feelings of 1287 humanity. A case in point would convince them of the fact. A man might marry under the age of twenty-one; he might have children under the age of twenty-one, and he might die under the age of twenty-one. Was he to be deprived of the power of bequeathing his personal property because he had the misfortune to die before a certain age? To suppose so would be doing a violence to the feelings of human nature. If, however, the Committee should decide upon adopting the Amendment, and fixing twenty-one as the age, he trusted that they would make the case he adduced an exception to the general rule, and provide for it and others of an analogous nature accordingly.
§ Mr. Lawsuggested, that the introduction of the word "unmarried" into one part of the clause, would meet the view of the last speaker—giving the testamentary power to married, and taking it away from unmarried persons under the age of twenty-one.
§ The Attorney-Generalthought, that under the age of twenty-one, there was great danger of an improper disposition of property. For that reason, as well as the universality of twenty-one, and the uniformity it gave to legal processes, he should support the Amendment.
§ The Committee divided, when there appeared for the Amendment 82; for the original Clause 38—Majority 44.
§ The Clause as amended, was ordered to stand part of the Bill.
§ On Clause 16 being read, which provides that every will be in writing, and signed by the testator in the presence of two witnesses,
§ Dr. Nicholl moved as an Amendment, that the following words be added:—"Where such will is wholly in the handwriting of the testator, and it purports to apply only to the personalty, it shall be dated and signed by the testator in his own hand-writing, or if the same is not wholly in the hand-writing of the testator." To papers written, he said, wholly by the testator, and signed and dated in his own hand-writing, he would give the same effect as such documents had in other countries. He did not see why a difference should be made between the disposition of real and personal property, but what he proposed with respect to the latter might not be readily admitted in the case of the former, and he therefore, confined his Amendment to personalty. The effect of it would be, that if a will dispose of real and personal 1288 property both, it must be attested by two witnesses; but if it disposed only of personalty, and was in the hand-writing of the testator, and signed and dated by himself, it shall be held valid. He was aware that the hon. and learned Gentleman had the recommendation of the Commission in favour of the clause; but he begged to say, that considerable doubts were entertained on the subject by individuals of high authority in the profession. The Bill required that every will and codicil should be attested by two witnesses—which, in many cases, would be attended with great inconvenience. In some instances, alterations in wills might be prevented by such a provision. It might be said, that holograph wills were liable to fraud, but not so liable as the ordinary attested wills. In his opinion no person would ever attempt to forge a holograph will. It might be easy to forge a signature, or a few words, when it would be impossible to forge lines, or pages of a document, so as to resemble the hand-writing of any individual. Holograph wills, therefore, must be more free from danger of fraud than the common attested wills. With these views he would propose his Amendment.
§ The Attorney-Generalsaid, the object of the Bill was, to remove the reproach arising from the anomalous condition of testamentary law and power at present existing. A will, conveying a trifling freehold, was not good unless attested by three witnesses, while copyhold might be conveyed by a will to which there were no witnesses, or by a will sufficient to bequeath personalty; and a will disposing of l,000,000l. would be good if in the handwriting of the testator although unsigned. There was as much danger of fraud in wills conveying personal as in those conveying real property, and each species of property required to be guarded alike. The clause as it stood declared that every will should be in writing, and signed by the testator in the presence of two witnesses at one time, who shall subscribe their names in his presence. To the clause, the hon. and learned Gentleman offered no opposition, but he proposed, in addition, to allow a holograph will to stand valid, if signed and dated in the hand-writing of the testator. He could not consent to this proposition. It might appear a hardship upon a testator to oblige him to employ a professional man, and to call in two or three of his 1289 neighbours to attest his will; but this was the best practice, and holograph wills, such as the lion, and learned Gentleman proposed, ought not to be allowed to stand. The learned Civilian admitted that, as regarded real property, they could not allow of holograph wills; and he did not see why a rule which could not be applied to realty, should be adopted in the case of personalty. Doubts sometimes arose whether property of a certain description was real or personal; and if a testator should by mistake dispose of real property, thinking, at the time, that he was merely bequeathing personal property the will would be void, in the event of the learned Civilian's Amendment becoming embodied in the will. Some danger and confusion, then, would by the hon. and learned Gentleman's proposition be introduced. If holograph wills were allowed at all, they ought to be allowed in every case; but for this the hon. and learned Gentleman did not at present contend. Men ought not in his opinion to make their own wills, but should have the assistance of professional men. A clearer and calmer disposition of property would be effected in this way. Upon the whole he thought that they ought not to render wills valid unless duly signed and attested.
§ Mr. Cutlar Fergussonthought, that a holograph paper, duly signed and dated by the testator was a more solemn act than any will which could be drawn by professional men. Such documents too afforded little room for fraud; and he had never heard of a holograph forgery. It was clearly much easier to force a single signature than an entire instrument, which was in favour of holograph wills. Exclusively of this consideration, a holograph was the authentic will of the testator, not dictated by others. He approved therefore of giving validity to holographs.
Dr. Lushingtonsaid, that as he understood the Amendment of his learned Friend, (Dr. Nicholl) it was, to recognize the validity of a will, signed and dated by the testator himself, in his own hand writing, purporting to be his own words; and that such Bill, should be valid, and of full effect. He objected to it, inasmuch as it created a distinction, with respect to the disposition by will of real and personal estates, which had no foundation whatever. He objected also to the words in his hon. and learned Friend's Amendment—"purporting to bequeath personal estate," for 1290 in respect, to any sort of property, if any doubt arose, as to the nature of the property, the will would be, to all intents and purposes, void. If there was any one act of life which ought to be done with more solemnity and deliberation, than another, it was the making of a will: but, the necessary consequence of a man's making his own will, would be that, while supposing as he thought that he was disposing of his property in a certain way, he would be doing no such thing. On all those grounds, then, he opposed the Amendment.
Mr. O'Connellsaid some alteration must take place, the clause gave only the same power in both kinds of property: it simplified the case, as it respected real property, and established that which related to personal, and on these accounts was very advantageous: learned Members wished to facilitate the making of wills: he did not. A man was called upon to make a will, just at the time when he was least able, and most liable to undue influence. He thought, therefore, the clause as it then stood, was an excellent one, as simplifying the process and diminishing the number of wills.
The remaining clauses of the Bill were agreed to, and the House resumed.