§ Sir Edward Sugden
moved for leave to bring in "a Bill to suspend for three months, from the end of December, 1837, an Act passed last Session for amending the law relating to wills." His object in making the motion was to give the Government an opportunity of amending the Act passed during the last Session. Any amendments should, in his opinion, emanate from the Government, and he felt inclined to leave to them the introduction of such as may tend to improve the Act. He merely asked the House to grant time, in order that Government might consider what amendments were necessary, and in doing so, he would declare that he was not actuated by any feelings of party policy or personal hostility. He felt much pleasure in bearing testimony to the diligence and skill of the property Commissioners, on whose report the Bill was founded; and he also thought that Mr. Tyrrell, and a noble Lord in the other House, the Master of the Rolls, were entitled to much praise for the zeal and judgment they had displayed. Few measures had received so much attention as the one which was then under the notice of the House. It had been referred to two Committees of that House, and had been twice before the House of Lords. It had received the most calm and judicious consideration. But he still maintained that the act could not meet all the objects for which it was framed. No man was more desirous than he to see those objects carried out, and he felt how important it was to have the measure free from any objections. The most desirable object, in his opinion was to establish security for the transfer of property. The rules for this purpose were few and simple. The leading rule was to leave well alone; and he thought that legal as well as medical practitioners acted wrongly in interfering with it. Another, and very important rule was, not to run counter to the habits and general opinions of the people in making any alterations. There was, however, an instance of this in the Bill to which he referred, for there he found that no man could dispose of property personal or real, without having two witnesses to the execution of his will. Since the time of George 1st, it had been understood that personal property could 522 be disposed of without two witnesses, but not stock or funded property. What, then, would be the consequence of this law? Why, that without two witnesses such will would be invalid, and yet, from not being known, it might never be attended to. It was impossible to turn the current of public opinion in matters of this nature; and the only result arising from this Act would be to bring wholesome laws into disrepute. Another rule was, not to put an arbitrary meaning on words that did not admit of a fixed signification. Some had said, in respect of this, that they did not like judge-made law; but if they did not approve of the judge's putting such construction on the words as he should think right, he (Sir E. Sugden) must say, that he differed from them. Upon this point it had been once said by Lord Camden that it was not in the power of penmanship to meet all questions by any distinct form of words; that rules of construction, therefore, must be framed to cover the defects of human learning, and that, where differences of opinion might exist, the construction of the judges should be received. He thought that it was good reason not to interfere with the judicial power of the judges in what cannot be made certain and fixed. It might be said that the moment you form a system, everything should be made to bend to that system; but the rule he had just mentioned was, he thought, important, and yet had by this act been violated. There was another rule, too, that for the purpose of correcting casual inconvenience, a fixed law ought not to be made. In the Statute of Frauds, the Legislature had imposed various conditions, in order to guard against fraud, which might have been beneficial had they been universally known. The necessity for an alteration of this kind might have been thought strong ground, but surely many more wills had been overturned by it than fixed. There were two other rules also which were worth noticing. The first is, not to alter the existing contracts of wills. This he need only point out to the House, and they would judge for themselves what would be the operation of this new measure. The second is, not to attempt too much by one Bill. When the grasp is too great much may be lost which might have been gained by a more limited effort. It is impossible, in one Bill, to admit of all provisions. For this purpose, the language 523 must be distinct, and the provisions should be made for every case. This could not be done in one Bill, and, therefore, much as in the present one, would be left unexpressed and unprovided for. He could, however, bear testimony to the talents, learning, and efficiency, of the Gentleman who had brought forward and had supported this measure, and if it had miscarried in securing its object, it had not miscarried from any want of care or attention on his part. But he would just consider the effect which this Bill would produce. He had pointed out different rules that should be observed, and it would be seen that this Bill was not in accordance with them. It did not leave well alone. It did run counter to the habits and opinions of the people generally; it did put an arbitrary construction on words that admitted of no determinate meaning; it did make a fixed law for correcting casual inconveniences; it did alter the existing contracts of wills, and it did attempt much more than was practicable in one measure. He thought, therefore, it must operate injuriously, and that it would be an universal clog. It might perhaps be, that too much care had been paid to the measure, or, perhaps that too much change had been made in the; original Bill, and that this Act, as now passed, was very different from that which the noble Lord (Langdale) had introduced into the other House, and that it was, therefore, open to several objections. But although many alterations had been made in the measure in the House of Lords, yet, on its being returned to the House of Commons, it had not met with too much care or received too much change, for no alteration had been made in passing it! through that House. It must be in there- collection of the right hon. Speaker, that in the course of addressing her Majesty on the Throne, at the end of the last session, he had spoken of this Act, and '. said it was to introduce different rules as to the construction of wills, and that he hoped its operation would be satisfactory, because it tended to promote the happiness and comfort of the country, by giving better security in the disposal of property by will. Now, if he (Sir E. Sugden) had thought the measure did answer this object, he would not wish to condemn the operation of some of its clauses. He admitted that there were many which he! approved of— no objection could be made 524 to them; but there were others which he highly condemned, and which he thought would act most injuriously. He would, therefore, without further preface, call the attention of the House to those parts which, in his opinion, required amendment, and would state his reasons for thinking; so, as otherwise he should not be justified in making his present motion. He had called the attention of the House to them in connexion with the other parts of the Act, by stating his general opinion upon the measure; but he would now speak to those parts which should be considered and altered. The first alteration was with regard to infants. In times past, infants had been allowed to make wills of their personal estates, so that any person of seventeen years of age might bequeath his personal estate to whomsoever he pleased. But, by the present law, this was not permitted. If this clause were introduced into the measure, there should have been some restrictions as to its operation. Now, in the case of illegitimate children, it was very hard that a young person who might possess a large fortune should be prevented from providing, if he wished it, for those who were dear to him, although he were not twenty-one years of age. In all preceding times he might have done so, but by the present law he cannot. Again, he may marry and have children. Suppose he has: to whom does his property go if he dies before he is of age? His property goes to the Crown. Now, why take from him the disposal of his property. Why take from him his right, and give it to the Crown? This alteration he thought had not been judicious. There should have been some qualification. Another great point which required amendment was the way in which wills were to be executed. Immediately after the Restoration an Act was passed giving to an infant a right of appointing by will guardians to his children. What objection, then, should there be now to his still appointing by will? They had waited patiently for a century and a half, and why should the law be altered now? Unless he was under a mistake, and he believed he was not, this law certainly took from infants the powers which had been conferred on them by the Act of Charles 2nd, and without any necessity. He objected to removing the powers which existed under the old law. Again, 525 there was section 9, which related to the mode of the execution of wills. It was there said that;— "No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned (that is to say)—that it be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." By this law great alteration had been made as to the number of witnesses necessary for the bequeathment of a personal estate. The law makes it necessary to have two. Formerly it required three for real property, but personal property might be disposed of without. This no doubt was a great inconvenience, but how stood it now? No man could leave even a legacy of 10l. without, having two witnesses, and adhering to all those forms and instructions which were requisite for the disposal of a large property. He must say he could not understand why this should be. He was sure that numbers of legacies would not be given now in consequence of this difficulty. He was not dealing merely with men of property or intellect, but with every small shopkeeper in England, Wales, Scotland, and Ireland, whose property was as dear to him, small as it might be, and his disposal of it of as much consideration to him, as that of the Gentlemen who heard him was to them. Could he be acquainted with the law? Could he know the different forms that he must adopt in order to leave his property as he wished? It was true that the noble Lord at the head of the Home Department had taken great pains to circulate this Act, that extracts from it had been posted on different public buildings throughout the kingdom, and no slight praise was due to the noble Lord for having done so. But could they understand it, even if they saw this? He must admit that he himself could not. He had not read it hurriedly, but with all his care, and he must say, with that experience and advantage which it might be well supposed that he had had, he could not understand it, and he believed no other person could. He by no means understood what the construction 526 of the law was to be. How, then, could the common tradesman understand it? Where was he to get two witnesses? Where could he learn how to make his will? He might be told there was the Act of Parliament; but of what use would that be if he could not understand it? He thought this Act would introduce into the country a sort of pettifogging agent, something between a schoolmaster and an attorney's clerk, either to make wills or pick flaws in them when made. He believed that although from the time of George 1st. to the present moment two witnesses had been required to a will by which real property was bequeathed, no Gentleman in the House was cognizant that he might dispose of his personal estate by will without such witnesses, except funded property or stock. Why was this? Because they had gone with the stream of general opinion, and had not questioned the matter. He had no hesitation in saying that this measure would strike at the root of the disposition of property of thousands of persons who would not think it was beneficial. If they looked to the courts of equity in this country, in the case of a will where two witnesses were required to have signed it, and some omission had taken place, the feeling was so strong, that the court look the circumstances into consideration, and if other proofs of the covenants could be given, the will was allowed to stand. He thought it was impossible that this part of the Act could remain without alteration. He had an observation to make with respect to codicils of wills. Formerly, by the Statute of Frauds, if a person executed a will, properly signed and attested, and added a codicil, signed only by himself, and without witnesses, it was nevertheless valid. Now, however, this could not be done; but every time an alteration is made, there must be in attendance an. attorney and his two clerks to witness the will. The point required great consideration. But again, suppose the two witnesses were there, how was it to be executed? He was by no means certain of the construction of the law, and it was not likely that a country lawyer would be. The clause said, the signature should be made by the testator, in the presence of two witnesses present at the same time, and such witnesses should sign in the presence of the testator. Now, in the Statute of Frauds the testator must sign 527 in the presence of three or more witnesses, who should attest or subscribe in the presence of the testator. There must be actual presence of the witnesses at the time, but why should two constructions be admissible? The judges had held that the witnesses need not sign in the actual presence of the testator, but if they did it where he could see them, it was enough. Now, a man dying, and having signed his will in the presence of witnesses, the witnesses afterwards having gone to a table in the same room to sign it, it was held that the terms of the Act had been fulfilled, because the testator might have seen them do it. There was another case, too, of a lady who called at a lawyer's in Lincoln's-inn to execute a will, and, having signed it in her carriage, as the witnesses were signing it too, the coachman backed the horses, and thus moved her from seeing them; but the judges were induced to say that she might have seen them sign it, and therefore the will was good. There was also the case of the late Duke of Roxburgh. Now, all these questions were left in this Act, and with increased difficulty. Instead of clearing them, they were now surrounded by greater difficulty. The Real Property Commissioners, on whose report this Act had been brought forward, did not propose that witnesses should sign in the presence of the testator, and not in the presence of each other. This was too dangerous; but they suggested that they should sign in the presence of each other, and not in the presence of the testator. When he was in the House before, he had brought in a Bill, which he could not unfortunately carry, which had met this objection in a business-like manner. In that Bill he had proposed that the testator should sign before the witnesses, but if the witnesses signed so as to make it a bonâ fide transaction before they left the House, it should be sufficient. Many authors had written on this Act—he thought no less than nine—and yet, most singular to say, if this Act be so clear, they most of them differ in their construction of it. Now, suppose it necessary for both witnesses to sign in the presence of the testator. A gentleman in his library signs it before his two servants. When he has signed it, they consider the testator's part done, and they then leave the room and sign it elsewhere. This might happen a thousand times. Again, one perhaps signs it, hears 528 a knock at the door, leaves the room, and during his absence the other signs. And yet on these accounts such will would be invalid. He could not say what the true construction of this clause was. It was in his opinion absolutely necessary to strike out the words "in the presence of the testator," and determine in some other satisfactory and more practical way the manner in which the two witnesses should sign. Lord Mansfield, in reference to the same clause in the Statute of Frauds, had said, that was encumbered with difficulty: but this clause is more ambiguous than that. He now came to an important part of the Act,—namely, that which related to the character of the persons who were to be witnesses to the execution of wills. By the Statute of Frauds it was required that the witnesses should be credible witnesses, and a felon or an insane man was not held to be a credible witness, for to make an insane person testify to the sanity of a testator was an absurdity, which it was left to the Act he was now commenting on to commit. A man receiving advantage from a will was likewise considered not to be a credible witness with regard to the execution of that document; and an Act was passed which, in order to render his testimony valid, made void the legacy in his favour. This part of the law, though in point of practice inoperative, was yet consistent. But how did the law stand under the Act to which he was now drawing the attention of the House? Would the House believe that by that Act credible witnesses were not required, and that a madman or a felon might be a witness to the execution of a will? The law provided that no incompetent person should be a witness, and this Act declared that no incompetent person should be examined, and thus all the advantage which might otherwise have been obtained in favour of justice from the contradictory testimony of fraudulent witnesses was lost. It was his opinion that by the Act he was alluding to, the execution of wills was rendered very difficult, and in some cases impracticable. A great evil arising out of the Act was, that by it all existing powers under wills were obliged to conform to the provisions of the new law; and that a court of equity was prevented from giving aid to a defective execution, even in favour of a man's own wife or child. A very grave question also arose 529 under the Act with regard to the revocation of wills; for it enacted that a man' marriage should revoke his will. There used to be an excellent law, which was now repealed, which committed no such absurdity as that. Formerly, when a man married and had a child, his former will was thereby revoked, but it was not revoked until he had a child. But, by the present Act, marriage of itself revoked the will; and though a man might have made a will in contemplation of his marriage, bequeathing certain property to his wife, yet as soon as he married, that very document which he had caused to be drawn up in anticipation of his marriage became null and void. The present Act also threw difficulties in the way of the cancelling and destroying of wills. There were also other clauses of the Act which he thought required revision, but to which he would not draw the attention of the House at any length. The clause relating to persons dying without issue, to whom real or personal property was devised, required re-consideration, as well as the clause relating to any real estate devised to a trustee. On this last clause there was a great difference of opinion amongst those who had written on the Act, and that difference of opinion was an argument in favour of its revision. The next clause to which he would call attention was that which provided, "that when any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person shall die in the lifetime of the testator leaving issue, and any such issue of such person shall be living at the time of the death of such testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will." Now, the meaning of that clause was very ambiguous, and he found that four persons who had written on the subject held that in such a case the property went by substitution. In that opinion he did not agree, but the various opinions expressed as to the meaning of the clause showed that it required revision and alteration. The clause regarding legacies was also ambiguous, and required re-consideration. There was another point to which he wished to call attention. The provisions of the 530 Bill were not extended to the colonies; and the consequence would be that a man having an estate, say in Jamaica, would find that property in that island, given in the very same words as an estate in this country would be given, would not have effect. This was a defect which certainly ought to be remedied, and the same law ought to be extended to the colonies as was enacted for this country. He had now gone over the various points of the Bill which he thought required revision; and he would say, in conclusion, that he had brought forward his motion solely from a sense of duty, and from a desire to give to the community a clear and simple rule for the transmission of property. He wished to afford the Government an opportunity of re-considering the Act of last Session, and he was ready to give every assistance in his power to make that Act perfect. No harm would result from the old law remaining in force for a few months longer; but if this Act went out to the country as a perfect law, it would be found not to meet the wants of the people. He wished again to say, that he made no imputation against any man; for the Bill had been altered here, and altered there, and he well knew the difficulty of framing a law of this description. He had spoken with the best feeling towards hon. Gentlemen on the other side of the House, as his only aim was to have the Act re-considered, and so important a measure rendered as perfect as possible.
§ The Attorney-General
knew, that whatever fell from the right hon. and learned Gentleman upon any legal question was entitled to the highest consideration, and he had no doubt whatever, that the right hon. and learned Gentleman had brought forward this question with the purest and most disinterested motives; but at the same time, he must say, that the course proposed to be taken by the right hon. and learned Gentleman was wholly unprecedented, and, as he thought, wholly unjustifiable. He did not complain of the want of courtesy that the right hon. and learned Gentleman gave him no notice, nor even conveyed to him any communication whatever that could afford him the most distant conception in the world of the course which the right hon. and learned Gentleman intended to pursue; but, setting that aside, he thought he might complain a little that the House should now be called upon to appoint a 531 Committee to sit upon the details of an Act after it had become the law of the land, and to enter into a verbal criticism of particular clauses and particular terms, the tendency of which would be to defeat the great and beneficial operation of what he would venture to call an excellent law. If this Act were not properly framed, he confessed he despaired of ever having an act pass the Legislature that could be called perfect. The principles of the bill and all its main enactments were recommended first by the ecclesiastical commission, and secondly by the real property commission. Many of those points of the bill to which the right hon. and learned Gentleman had most strongly objected, especially those clauses which placed real and personal property upon the same footing, were recommended by the ecclesiastical commission, consisting, as the commission did, not only of several bishops, but of the heads of the courts of justice in Westminster-hall, of all the ecclesiastical judges, and many of the most eminent members of the bar. The real property commission followed. He had the honour of presiding over the deliberations of that commission, and, after a most painful investigation, after taking all the means in their power to come to a just conclusion, the real property commissioners concurred in the opinion pronounced by the ecclesiastical commissioners, and confirmed the recommendation of those principles upon which the bill was framed. They also approved of every one of the provisions which almost, clause by clause, constituted the bill as it now stood. Before the bill was presented to the House it was printed and circulated amongst all the conveyancers and chief legal practitioners both in London and the provinces. The framers of the measure were most anxious to receive suggestions and recommendations from every quarter, and in consequence of the course they took prior to the introduction of the Bill, they received many most valuable communications of which they availed themselves. The Bill was not introduced into Parliament until rather late in the Session of 1834. It was read a first and second time, and then referred to the consideration of a Select Committee. Every lawyer in the House was a Member of that Committee, and they gave to the Bill a most careful and most anxious consideration, going through 532 it clause by clause, and maturely weighing every one of the provisions contained in it. Unfortunately the House was not, at that time, enriched with the presence of the right hon. and learned Gentleman (Sir E. Sugden), and the Committee was, in consequence, deprived of the advantage of his great talent and experience upon these matters. The Session of 1834 concluded before the Bill could be brought to a third reading. In 1835, the Bill was again introduced—again read a first and second time, again generally approved of, and again referred to a Select Committee. It would be remembered, that at the commencement of the Session of 1835, the right hon. Baronet (Sir R. Peel) opposite was in office, and that Lord Lyndhurst was Chancellor. Lord Lyndhurst, at that time, wrote to him (the Attorney-General) stating that he entirely approved of the Bill, and that he should be ready to bring it into the House of Lords. With hardly a single exception, the Bill then stood in exactly the same shape as that in which it was subsequently passed into a law. Having been introduced into the House of Commons, and read a first and second time, it was, as he had already stated, again referred to a Select Committee. Upon that Committee sat Sir Frederick Pollock, Sir William Follett, Mr. Sergeant Jackson, Dr. Lefroy, Mr. O'Connell, Mr. Hogg, Mr. Pemberton, and all the most eminent members of the English and Irish bar. The Committee so appointed went through the Bill clause by clause, and most carefully considered every one of the points which the right hon. and learned Gentleman had alluded to, and partially discussed. The right hon. and learned Gentleman had, in fact, started nothing new; every point that he had raised had been thoroughly discussed in the Committee. Was the right hon. and learned Gentleman, therefore, because he was not at the time a Member of the Legislature, now to come forward and ask the House, after all its labours, to stultify itself, and to declare that an Act upon which so much pains had been exhausted should not be allowed to come into operation? The discussion in the Committee occupied so long a time, that the Bill could not pass in the Session of 1835. In 1836, it was introduced into the House of Lords by that great judge, Lord Lang-dale. It was referred to a Select Committee of the House of Lords, composed, 533 amongst others, of the present Lord Chancellor, Lord Brougham, Lord Denman, Lord Lyndhurst, Lord Wynford, and Lord Abinger. Those noble Lords took the whole of the measure into their consideration, but could not. make up their minds upon several most important clauses. They thought that some further time was required for consideration, and, consequently, the Bill did not pass in 1836. In the beginning of 1837, it was again introduced by Lord Langdale, who in the recess had paid the greatest attention to all its details, having consulted every one within his reach who could give any information or advice upon the subject. It was again referred to a Select Committee, which sat day after day, bestowing the utmost attention to every part of the Bill. Some few alterations were made; but the effect of those alterations was to restore the Bill to exactly the same state as that in which it had originally passed the House of Commons. In 1837, the Lords sent down, without the difference of a single line, the very Bill that was sent up to them by the Commons in 1835. The Bill formed a very leading topic in the speech of the Speaker, when that right hon. Gentleman announced to her Majesty the business of last Session; and it was rash, if not cruel to say, that the very topic upon which the right hon. Gentleman then expatiated was one that would do a great deal of mischief, that it would create nothing but annoyance and confusion; and that her Majesty's Ministers would rue the day when it was passed. Under these circumstances, could the House agree to suspend the operation of the Act, in the belief that it was mischievous—that it wanted amendment? It might want amendment; and whatever his right hon. Friend might hereafter propose with that view would, of course, be most seriously considered. Let him bring in a Bill to amend any of its clauses, and not only would he (the Attorney-General) not oppose it, but would give his right hon. Friend all the assistance in his power; but to say that the Act should be suspended for three months because his right hon. Friend did not approve of it was most extraordinary. He would not follow his right hon. Friend through the several provisions of the Act. His right hon. Friend had said, that the law of wills, as regarded the form of attestation, ought to be left unaltered. The law, as it at pre- 534 sent stood, was a most incongruous and barbarous law,—a law that was never maintained in any country: it was quite a disgrace to any civilised society A will for the disposal of freehold land, however insignificant in value, was required to be executed in the presence of three witnesses; but if the property were copyhold, it did not require any witness at all; and with regard to personal property, any kind of memorandum was construed into a legal disposition of the property. In fact, no man could say what was a will or what was not one. The courts at Doctors' Commons had, for years past, been chiefly occupied in deciding what was and what was not a will; and was it not proper that this state of things should be put an end to, and that there should be some definite criterion as to what was or was not such an instrument? He thought it was; so thought all the ecclesiastical commissioners; so thought all the real property commissioners; although so did not think his right hon. and learned Friend. But then his right hon. Friend said, that they ought not to interfere with the interpretation of words. Now, the great object of the law was to give effect to the intention of the testator; but by the construction of the courts of justice that intention was constantly violated. Where the testator meant to give an estate for life the courts had given the devisee an estate in fee-simple, and è converso. It was for this reason that certain clauses had been inserted in the Act. His right hon. Friend had alluded to forfeitures incurred, and to property devolving to the Crown. He had had the honour to be a law-officer of the Crown for five years, and he could say that whenever any property devolved to the Crown under the circumstances stated by his right hon. Friend, the Crown had always acted merely as a trustee for those who would have been the objects of the bounty of the testator. He asserted that this was the case. Suppose a man died intestate without next of kin, but leaving illegitimate children, the Crown always gave the property to them. His tight hon. Friend had dwelt upon the difficulty of obtaining on all occasions the presence of two witnesses; but he did not conceive that any such difficulty existed. His right hon. Friend had said, that whenever a person desired to make a will, he must now, by this Bill, send for an attorney and two clerks. There was, however, 535 no necessity for the presence of an attorney, much less of two attorney's clerks; because the nurse and the apothecary, the servant or a neighbour might be called in, and fulfil that office abundantly well. He was aware that his right hon. Friend had in a former Session brought forward a measure, the leading principle of which was, that the attestation of the will should be part of the same transaction with the making of the will itself. But who in the name of goodness could tell what was part of the same transaction? Suppose there should be a knock at the door, and the servant went before witnessing the will to answer it? That might put an end to the transaction. Though there might be some difficulty in the operation of the present Act, he could only say the Bill proposed by his right hon. Friend would have been much more liable to difficulty. His right hon. Friend might feel a little disappointment, he (the Attorney-General) would not say irritated, at the circ um-stance, but the fact was, that his Bill had gone into oblivion; whereas the Bill of another has become the law of the land. Another argument of his right hon. Friend was, that under the present law a will might be witnessed by incredible witnesses. What was the sum and substance of this objection? Why, that a will should not be valid unless attested by credible witnesses; that was, unless they were known to the testator as credible witnesses. But it might happen that a man in the service of the testator might many years before have committed perjury unknown to the testator, who for years had known him only as a meritorious servant. Yet according to his right hon. Friend a will attested by such a person would be absolutely void. It was thought that such an objection ought not to be taken against such a witness, and that having attested that which had actually taken place, the will ought not to be rendered void on account of any such circumstance. Another objection made by his right hon. Friend was, as to the mode in which powers were to be executed. Now, he avowed that of all the clauses in the Act that which was the most valuable was the clause regarding the execution of powers. He was quite aware that that clause would render of no importance many decisions of the courts respecting the execution of powers, and he was sorry to say also that it would render of very little value some 536 excellent treatises that had been published upon that subject; because the law had certainly by the new Bill been very much altered, and he thought very beneficially altered. The donor of a power sometimes annexed the most fantastic conditions as to the mode in which the person who was to execute the power was to carry it into effect. The donor might, for instance, say that it should be executed in the presence of seven witnesses, all of whom should have yellow hair, or should have only one eye or one leg. It might then become a question in a court of law whether the hair of the witnesses was yellow, or whether each of them was blind of one eye, and should it turn out that one of the witnesses had brown hair, or had both his eyes, it was quite clear that the power was not well executed. With a view to put an end to this, the law required only certain formalities, which were easy of observance, and which would avoid infinite evils; for his right hon. Friend knew that many persons were deprived of property intended to be given to them because powers were not effectually executed. Again, the terms of the attestation had been heretofore held to be material. This was now altered. Contradictory decisions had occurred on this point. Some decisions required that the words "signed, sealed, and delivered," should be used in the attestation, while others held that they were not material. He was himself counsel in a cause now pending, in which Sir Francis Burdett was interested, where that very question arose. The witnesses to the execution of the power did see it signed, sealed, and delivered, but it was not so stated in the attestation, and the disposition of a very considerable estate depended upon that defect. Now, if the law of last Session had been in operation, the question never could have arisen. This question had been in litigation for four years, and would in all probability go to the House of Lords before it was decided. The case of Fox v. Marsden had been argued by Sir William Follet for three days before fourteen judges, as to the admission of parol evidence with respect to a will republished subsequent to a marriage. Whether the judges would admit parol evidence he could not say, but he would venture to assert, that all the judges would with one voice condemn the present law. A marriage ought either not to revoke a will 537 under any circumstances, or it ought in all cases to invalidate it. It was indispensably necessary to lay down a rule, and the Legislature had accordingly declared that a marriage in all cases should make a will previously executed void. He must, in conclusion, ask the House to have confidence in what had already been clone. Let the House have confidence in the Legislature, in the report of the ecclesiastical commissioners, in the report of the real property commissioners; let them have confidence in Sir William Follett, Sir Frederick Pollock, Lord Lyndhurst, Lord Langdale, Lord Abinger, and Lord Brougham, although the right hon. Gentleman opposite might happen to differ from these high authorities. Let not the House suppose that because his right hon. Friend was a great lawyer, that he was the only great lawyer of which this country could boast.
§ Sir Edward Sugden
said if the House were so perfectly satisfied with the alteration in the state of the law as it appeared to be, he had no objection that the country should have the benefit of the change. He had done no more than his duty in stating his objections to it. He would only beg just to observe that he had not been guilty, that he was aware, of any want of courtesy towards his hon. and learned Friend, in not communicating to him his (Sir Edward Sugden's) objections to the Act, because a book had been published which his hon. and learned Friend must have well known was published with his (Sir Edward Sugden's) approbation, which contained all the objections he had tonight stated to the Bill of last Session. A copy of the book was sent to Lord Lang-dale, but he thought it would have been an impertinent obtrusion on his part, and by no means beneficial, if he had forwarded a copy to his hon. and learned Friend. The right hon. Gentleman concluded by saying that he should carefully watch the operation of the Act, and time would decide whether he was right or not in his opinion respecting it.
§ Motion negatived.