§ Order for Committee read:—House in Committee.
§ Clause 1.
§ MR. BETHELL
felt obliged to detain the Committee for a few minutes upon this important measure, while he stated the reasons which had necessitated the bringing in of the Bill on the propriety of which they had now to determine. The law of this country in respect to wills, as it stood before the 1st Vict., c. 26, required that every will, as far as it respected real property, should be signed, although it did not require that the signature should be affixed to any particular part of the document. Great difficulties arose from the application of that law. The Committee would understand the mischief that resulted, if they bore in mind that, if the signature was prefixed to the will, or contained in the first line, and that it was a signature acknowledged by the testator, and attested by the witnesses, it left room to the testator to add at any subsequent time a 1235 further clause to the will. It therefore occurred to the Commissioners for the improvement of the law, that the signature of a testator should be placed "at the foot or end of the will." They recommended a provision to that effect, and that provision was accordingly embodied in the Act passed in the first year of the reign of Her present Majesty, which was recited in the Bill before the Committee. Unfortunately the words "at the foot or end thereof" had led to as much difficulty, litigation, and distress as any other similar number of words that had ever been introduced into a statute; and they had made that plain enactment "a delusion and a snare" to a great number of persons who believed they were making and executing their wills according to a plain rule which was intelligible to ordinary capacities. The construction put upon these words had been that if the signature was not actually put at the end of the last clause of the will—if the signature was placed at the foot of the clause, or outside, or occupied any other position on the face of the will than that which strictly corresponded with the words "at the foot or end thereof," the will was pronounced to be informally executed. Now that evil had increased to so great a degree that it was hardly possible for any man to tell whether his will was signed in the manner required by the strict interpretation which those words had received—no man could possibly tell whether his will was legally signed or not. That interpretation had unfortunately been carried down by such a long series of authorities, and confirmed by the Judicial Committee of Privy Council—the court of ultimate appeal—that there was no possibility now of altering it by a contrary decision, and the only possible mode of relief was a resort to the Legislature of the country. The present Lord Chancellor, perceiving the evil, with that care for the administration of the law which had always distinguished him, and for which his countrymen owed him a large debt of gratitude, had come to the relief of the subject by the introduction of the present Bill. But whilst he (Mr. Bethell) gave that eulogy and approbation to the intent and purpose of the Bill, he could not but express his surprise and regret that it should have been framed in the manner in which he found it to be framed, which, if adopted by the House, he would venture to predict would not only not remove the mischief that had arisen, but would mul- 1236 tiply and augment that mischief to a painful degree. The Committee were now concerned in laying down a plain ordinary rule for the guidance of plain ordinary persons in discharging an important duty. But with regard to every solemnity, and every rule requiring solemnity, if they made such rules or solemnities complicated, and if they expressed them in language either techical or difficult to be understood or interpreted, then, in point of fact, they dug so many pitfalls for the ordinary people of the country, whilst they multiplied the causes of litigation and the chances of defeating the intentions of testators. He should have thought that the plain and ordinary mode of remedying the mischief would have been to repeal the clause containing the obnoxious words so liable to misinterpretation, and substitute for that clause another clause or section containing words having a plain ordinary import. But instead of adopting that ordinary and plain mode of proceeding, the Bill had recourse to this singular mode or attempt to redress the supposed evils; it left the original enactment, the source of the mischief untouched, but it made that enactment more complicated by a very long section, which was to be taken into their hands as a rule, partly for expounding, partly for remedying, the evils produced by the interpretation of the existing statute. And that was sought to be obtained by the use of a collection of adverbs, which he thought was unmatched, even in the structure of English Acts of Parliament. The first clause of the present Bill directs that every will shall be deemed valid "if the signature shall be placed at or after, or following or under, or beside or opposite to the end of the will;" and then it proceeds to remedy the confusion and difficulty thus occasioned by stating in an interpretative manner," so that it shall be apparent on the face of the will that the testator intended to give effect to the writing signed as his will by such his signature;"—thus introducing, as he (Mr. Bethell) contended, all the elements of future difficulty and litigation. He did not think this part of the Bill could be passed into law with any security or safety. He proposed, as an Amendment, that the will should be valid if the signature of the testator were so placed, and in such a manner, as that it should be apparent that the testator intended to give effect by such signature to the writing as his will. He had adopted words which were sufficiently 1237 explicit and definite to furnish a general rule—namely, that the will should he valid when, from the position of the signature and from the attestation, it was apparent that it was the intention of the testator to give effect to the instrument as his will. The only object of the signature was to authenticate the will. That might be done in a variety of forms; and the reason why a particular position was required by law was, that the signature should be so placed as to authenticate the will, and to prevent any additions being made to it after it had been signed by the testator and attested by witnesses. These objects, he believed, would be accomplished by the Amendment which he was about to submit to the House. But the mischief in this case was not confined to that part of the clause to which he had referred. To show the extraordinary system of drafting which had been pursued, he might mention that the latter part of the clause entirely nullified the former part. For instance, there was first an enumeration of particulars, in his opinion perfectly useless; and then there were some general rules which followed that enumeration. If the general rules were useful, then he must contend the enumeration of particulars was altogether useless. The signature was still to be at "the foot or end" of the will, for the original Act remains unrepealed; but then the clause went on to say that the signature, wherever placed, was sufficient, if it was apparent that the testator intended to give effect to the will by such signature; but notwithstanding this, it further went on to say that no will should he invalid in the great variety of cases which were enumerated, although in each of those cases the rule previously laid down was violated. Nothing, he must be permitted to say, could be more inconsistent than the clause as it stood at present; and the effect of this jumble of enactments would be that the very commentary which was furnished in the clause, would abrogate the existing law, by the terms which were expressly introduced for the purpose of preserving it. Such a mode of legislation was pregnant with evil. Nothing could be a greater vice in the composition of Acts of Parliament than that they should take part of an Act of Parliament and leave that standing, and alter it by a subsequent enactment, so placed as to throw on the Judge an obligation of taking the two statutes in his hand, and yet the one 1238 which is altered is left in force, and you must ascertain from the second Act the extent of the alteration. The Judge had thus to construe the existing law, and then the alteration of that law, and to derive the rule of law from the combination and comparison of two separate things, which to a certain extent were contradictory and at variance with each other, the one being introduced for the purpose of altering the other. What he proposed to do was to repeal the existing rule, and to substitute a new one which would he plain, intelligible, and perfect in itself. He proposed to repeal the particular clause in the existing Act of Parliament, and to substitute the words which were in his Amendment. The Committee must recollect that the question now before them was one of the deepest moment, and be should be happy if this discussion gave rise to the conviction in the minds of hon. Members of the necessity of having the House provided with some tribunal, or with some set of men to whom might he referred questions of this kind, in order that the great opprobrium which now accompanied the Legislature as far as regarded the structure of their statutes (the worst, perhaps, which existed in any country) might be removed; for, however admirable the mode of their legislation in some respects might be, it was certainly miserably deficient in providing for the correct expression, in point of language, of the Acts passed by them. The language of these Acts was often left to mere chance or caprice—provisos were added at a late stage, negativing, or altering, in the most extraordinary way, all that had been done before; and the consequence was, that the Judges could not put any intelligible construction on the jumble of inconsistencies thus submitted to them for interpretation. He had spoken freely of the Bill; but he had the greatest possible respect for the noble and learned Lord who had introduced the measure into the other House, and who, he must be permitted to say, was entitled to every credit for his exertions to amend this branch of our law. He believed that this Bill was not the workmanship of the noble and learned Lord—that he had trusted to some other person to prepare it; but even if it were the workmanship of his Lordship, then it was not the first instance in which a man of the highest eminence in the profession, had failed as a Parliamentary draftsman. He (Mr. Bethell) remembered reading in 1239 the memoirs of the late Sir Samuel Romilly, that Lord Eldon had sent for that great and accomplished lawyer, and read over to him some clauses which he had prepared to alter an existing law—a matter of very ordinary difficulty—and that Sir Samuel, after reading the clauses, was obliged to tell the Lord Chancellor that he was totally unable to apprehend or divine what was the meaning of his clauses. He (Mr. Bethell) must say, that whoever read the first section of this Bill, would find himself in a maze without plan, and would toil in vain to discover any meaning. He hoped that his attempt to simplify the Bill would render it more intelligible, not only to the Judges who might be called upon to interpret it, but to the public at large, who would be so greatly affected by its provisions. He would move to omit the whole of the first clause, for the purpose of inserting in lieu thereof the following:—That so much of an Act passed in the first year of the reign of Her Majesty Queen Victoria, intituled, an Act for the Amendment of the Law with respect to Wills, as enacts that no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned, that is to say, it shall 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, and no form of attestation shall be necessary,' be, and the same is hereby repealed: And in lieu thereof, be it, and it is hereby enacted, that no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned, that is to say, it shall be signed by the testator, or by some other person in his presence and by his direction, in such manner as that it shall be apparent that the testator intended to give effect by such signature to the writing as his will, 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.
said, that the hon. and learned Gentleman had better move that the original clause be negatived, and then bring up his Amendment in the shape of a new clause.
The MASTER OF THE ROLLS,
not concurring in the opinion that the Bill would correct the evils which at present existed, or in the Amendment of the hon. and learned Member for Aylesbury, desired to express as shortly as he could his 1240 view of the difficulties which affected the question, and the course which it appeared advisable to take. This was a question which ought to be decided on the principles of common sense, and in which it was of the greatest possible consequence to avoid anything like technicality. The question related to a matter to be performed only once in a man's life, frequently by uneducated persons, and was one which was of vital importance to them; and it was the incumbent duty of the Legislature to enable persons of common understanding to perform it in such a manner that the law might carry into effect their last wishes. The Act regulating the law, as it stood, was a remarkable instance of the evil arising from so much legislation in a matter of great importance, and when little interference of the Legislature was required. The existing law arose out of the fourth Report of the Commissioners of Real Property, who, referring to the evils of technicality, suggested various remedies; but in the attempt to carry their recommendations practically into effect, they brought a still greater number of technicalities into play. Before the existing law was enacted, men, so far as regarded personal property, might make a will without a witness; they might sign in the first line, or in any part of it; but it was constantly found that men began to write wills who never intended them to be wills until they were completed, and, leaving certain papers which contained merely the commencement of something meant for a testamentary disposition, those papers were established as wills contrary to the real intention of the testator. The Commissioners tried, he thought wisely, to put an end to that. They required that a will should be attested in every instance by two witnesses: this was quite right, and was a very simple, plain, intelligible course. An attestation by two witnesses was a thing perfectly intelligible to all common understandings; but in addition to this rule they suggested further rules, which had produced considerable mischief, the first of which was only important in the case of a will being unattested; but unattested wills, and what were called "holograph" wills, were properly put an end to. The rules suggested were three: first, that the signature should be at the foot of the will; secondly, that the signature should be made in presence of both witnesses; and, thirdly, that the witnesses should both attest in the presence of each other and of the testator. There was one clear 1241 and plain principle which, in his opinion, ought to be kept in view by the Legislature in regard to all instruments which required any authentication: the rule ought to be perfectly uniform, so that there should not be one species of rule for one species of instrument, and another rule for another species of instrument. And another principle equally clear was, that every rule of law which went to nullify any instrument, should be permitted to exist only where there was some clear, distinct, special reason which rendered it absolutely necessary to nullify the instrument unless that form were adopted. Try these rules by these principles, and they would all three be found to be injurious. It was difficult for Gentlemen not acquainted with what took place respecting probates in Doctors' Commons to conceive the evils produced by framing rules at variance with the principles for which he was contending; but he spoke without exaggeration when he used the language of the late Sir Herbert Jenner Fust, who told him that every week there was a basketful of bonâ fide wills which had not been admitted to probate. Now, after pointing out the defects which the existing law and the present Bill were equally chargeable with, he would ask the Committee whether they were confident that they were competent, without further inquiry, sitting there as they were then, to deal with the subject, and to cure the evils which had been introduced into the law of wills, without occasioning others to an equal or greater extent, by the legislation which they might substitute. He wished to submit to them whether a subject of that kind would not be better considered in a Select Committee, composed of persons conversant with the law, who could call before them persons familiar with the mischief to be dealt with? Now, as regarded these evils, the Bill before the House only attempted to deal with the first of these rules, leaving the defects arising from the other untouched; and, with respect to the first of these rules, both the Bill and the Amendment of his hon. and learned Friend did so imperfectly, for they left untouched the provision which required signing at the foot. The words "signed at the foot" must have been inserted by the Commissioners with the idea of a deed present to their mind, which it was usual to sign at the foot, and therefore under the impression that it was proper to insert these words. They did not foresee that these words 1242 would necessarily raise a question in every instance, what was the foot—whether the will was signed at the foot. He believed if they had simply required that the will should be attested, they would have done all that was required for the authentication of the document. For instance, a sign-manual by the Crown must he attested, but the Queen signed at the head of the document; and the authenticity of it was ascertained by the proper authority attesting it at the foot. What was an attestation was a very simple matter, about which there could be no difficulty in arriving at the proper conclusion. He was of opinion that no such provision should ever have been inserted as that requiring the "signature at the foot thereof," and that nothing more should be requisite than that the will should be signed and attested, which would leave the Judge free to determine whether what had been done was a sufficient compliance with the law, which required signature and attestation of that signature, and nothing more. Then the Amendment of his hon. and learned Friend proposed to enact that the testator "shall sign it in such a manner that it shall be evident that he means to give effect to it as his will." The effect of that would be to institute a lawsuit on every will, to determine whether the testator had sufficiently evidenced his intention on the document; it would be a source of profitable employment to the lawyers, and of serious calamity to the public at large. Test this by the case of deeds conveying an estate: all that is now required is execution and attestation; if the law required that the execution and attestation should be in such a form as to show that the gentleman meant thereby to convey an estate, great expense and litigation would be the consequence; but the law only required execution and attestation, and he was of opinion that no more should be required in a will. The present Statute of Wills positively stated that no form of attestation should be requisite; and it would be naturally thought that was the effect of the statute. The fact, however, was, that since it was required that the testator should sign or acknowledge his signature in the presence of the witnessess, these must attest it in the presence of the testator; but unless the written form of the attestation stated these facts, each of them must be proved before the will was admitted to probate, and to prove these facts was generally found to be a very difficult thing to accomplish. As 1243 an evidence how this worked, he would mention one case. A will had been executed in India with all the due formalities, and two witnesses were present, both natives of India. It was suggested that it would be desirable to have one European witness, and one was sent for. Before he arrived, however, the testator had executed the will—he did not acknowledge it in the presence of this witness, and it was in consequence declared to be invalid, arising from excess of caution in endeavouring to comply with unnecessary rules. Nay, he believed it sometimes led to fraud; for the heir who wished to overturn a will had merely to say to the attesting witnesses that he was displeased with the provision made for them—that something better should be given them; and then he would ask whether they had signed it in the presence of the testator. It might happen that they would not recollect, or could not, and it was found on these occasions very difficult to refresh the memory of the attesting witness when his interest was opposed to his recollection. He confessed that he had considerable doubts as to the propriety of requiring the witnesses to be present when the testator's signature was affixed. The main object to be effected was to secure the greatest possible amount of uniformity, and the absence of anything like a series of questions and decisions hereafter upon the subject. Would the present Bill have that effect? He ventured to say that not a single lawyer conversant with wills in the courts of probate had been consulted who had expressed his belief that such would be the effect of the Bill; and, for himself, he believed that the clause, as it stood, could not possibly obviate the existing evils. The defect of the Bill was, that it left the evil principle untouched, but it pursued the various decisions made to enforce that principle, and repealed them; but new cases and fresh decisions would arise which the Bill did not, and could not, meet. The law should be such that every man might be able to make a will, which, being signed by him and attested by two witnesses, should be binding. If they had that, they would require nothing more; the law would be perfectly intelligible, and it would give effect to every will intended to be bonâ fide. Forged wills were fortunately very rare; but where they did exist it was the unanimous testimony of all acquainted with the subject that in such the formalities were most strictly observed, 1244 and that all these technicalities only affected bonâ fide wills. Under these circumstances he begged to press upon his right hon. and learned Friends the Home Secretary and the Solicitor General the propriety and importance of referring this Bill to a Select Committee, that it might receive that due consideration which would enable the House to pass a measure to remedy the existing evils. If the Committee could go through the clauses in the present Session, and agree upon the framework, there would be no difficulty in passing a Bill speedily through Parliament; but even if the delay of another Session should be the consequence, the evil would not be so great as passing a crude and imperfect measure which should give rise to a new series of decisions in courts of probate, and the necessity of amending it again in a future Session of Parliament. Upon these grounds he would suggest that the Chairman should now report progress, in order that the right hon. Gentleman might consider the propriety of referring the Bill to a Select Committee.
The SOLICITOR GENERAL
agreed with the hon. and learned Member for Aylesbury (Mr. Bethell) that it was impossible to overrate the importance of this subject; but regretted that he was obliged to differ from his right hon. Friend the Master of the Rolls as to the expediency of referring the Bill to a Select Committee, or interposing any delay whatever to its passing into law. Let them consider the state of the law when the Bill was brought in, and remember what was the object of his noble and learned Friend in another place, and they would then see how necessary it was at once to carry out that object, and to perceive that delay would only tend to introduce confusion into the law, and to prevent any immediate remedy being applied to the existing evils, which were of a most serious character. While they were debating on this Bill, people were making their wills, and some of them were paying the debt of nature; and it was quite possible that many wills had been made in the interim, which, unless this Bill pass, would prove to be inoperative. For a moment he would call attention to the present state of the law. A great and important amendment had been introduced into it in 1837 by Lord Langdale. By it wills of reality and personalty were placed on the same footing: both were required to be executed by the testator at the foot, and to be attested by two Wit- 1245 nesses; and it was thought that by that Act the object of the Legislature had been attained, and that no doubt could arise. Nothing could be apparently more clear and simple than the provisions of that Act; but unfortunately a series of decisions had taken place upon the particular clause which required the will to be signed at the foot, which had had the effect of defeating the will of a great number of testators. It had been held by various Judges in various courts that where an interval was left of an inch or an inch and a half between the end of the will and the signature of the testator, such will was not valid; so also if it were written on one side, or in fact anywhere except immediately following the last word of the will. In consequence of this, and the evils and difficulties which arose under it, the noble and learned Lord who now sat upon the woolsack had felt it to be his duty at the earliest possible moment to bring the subject under the consideration of the other House of Parliament, and to suggest what he hoped would prove a complete and efficient remedy. He had heard with great surprise the observations which had been made upon the structure of this Bill by his hon. and learned Friend the Member for Aylesbury; and he had heard with equal surprise the disapprobation which had been expressed by the Master of the Rolls. He could not but remind the Committee that the noble and learned Lord who had performed the great service to the country of undertaking this task, was not only the greatest of living Equity lawyers, but that he possessed more extensive experience in that practice and administration of the law than any man now existing. Moreover, he was eminently familiar with the subject. He had published a work upon it, and had long dedicated his attention to it both at the bar and on the bench; and, above all, he was the author of some of the most useful Acts of Parliament relating to the disposition of property. Bringing all these great qualifications to the task, he had framed the Bill which was now submitted to the Committee for its approbation. He would just call the attention of the Committee to what the effect of the Bill was. Seeing that by the Act of 1837 it was enacted that no will should be valid unless signed at the foot or end thereof by the testator, and seeing that those words had given rise to doubts and to numerous decisions adverse to the express provisions of the wills of the testa- 1246 tors, what his noble and learned Friend proposed was this, that every will, so far only as regarded the position of the signature of the testator, or of the person signing for him, should be deemed to be valid, whether the signature should be placed at, or after, or following, or under, or beside, or opposite to the end of the will. Now, what was the grievance intended to be remedied? It was this—that whereas the statute contained the expression "at the foot of the will," and unless the signature appeared at the end of the last word of the will, the will itself was declared to be invalid. The remedy proposed was, that whenever the signature should be placed upon or to the will, so that it should be apparent upon the face of the will that the testator intended to give effect by such signature to the writing as his will, it should have that effect. He apprehended it was not the intention of the noble and learned Lord, nor the intention of that House, to enter upon the general subject of the making and execution of wills, but to remedy a specific grievance. He would not say that much that had fallen from the Master of the Rolls was not entitled to the serious attention of the Legislature; but the question at present before them was this—that whereas, there being one specific grievance that required to be remedied, was the remedy proposed an effectual remedy? He apprehended that it was. With regard to other defects of the law of wills which required amendment, he should be happy to concur with the Master of the Rolls in any proposal he might hereafter bring forward to amend the law in those respects. His hon. and learned Friend considered the specification of the particulars which should not affect the validity of a will to be superfluous; but since those particulars were in fact the decisions of the Courts on account of which wills had been declared invalid, unless they were particularised, in order that it might be declared that they should not in future invalidate a will, even the adoption of the Amendment proposed by his hon. and learned Friend would not prevent the Prerogative Court to-morrow again declaring a will to be invalid, if similar objections were to be raised against it as any of those which had formed the ground of such previous decisions. He apprehended, therefore that the whole of the clause was necessary to supply a sufficient remedy to the specific evil that existed; but he by 1247 no means affirmed that all the evils arising out of the Act of 1837 would he remedied by this Bill. He would add one word more. His right hon. Friend the Master of the Rolls, and his hon. and learned Friend (Mr. Bethell), seemed to suppose that these Acts of Parliament were intended only as a guide to those who made a will as to how they were to make it. But that, he apprehended, was not the intention of an Act of Parliament. The great mass of the makers of wills seldom looked at an Act of Parliament to learn how to make their wills. It was not the province of Parliament to teach people how to make their wills; it was rather to inform Courts of Justice how they were to interpret wills when they came before them, and how they were to pronounce upon the validity or otherwise of the execution of those wills. The true question was this, would an Act of Parliament thus framed enable a Court of Justice which had to pronounce upon a will to do justice and give effect to that which was clearly the intention of the testator? With regard to this clause, he thought, as it was now-framed, it was calculated most effectually to remedy the evil which existed under the Act of 1837; whereas the Amendment of his hon and learned Friend would leave all future wills open to the very objections which it was the object of this Bill to put an end to. He, therefore, hoped the Committee would agree to the clause without any alteration whatever.
§ SIR WILLIAM PAGE WOOD
said, that no person could dispute the gratitude which the public ought to feel towards the noble and learned Lord for attempting to remedy a grievance which was pressing with great severity upon a large portion of the people. No person could dispute the magnitude of the evil, or the necessity of the remedy; but it was quite another thing to say that the Bill in its present imperfect form should be placed upon the Statute-book. He only regretted that the Bill had not long ago been referred to a Select Committee. Very little time would have been lost; but when it was proposed, the Solicitor General said, the delay would be fatal. He recollected that the Bankrupt Bill, which contained 280 clauses, had been passed through the House in about six hours after it had been referred to a Select Committee. In this instance the Bill only contained four clauses; it might therefore be disposed of in Committee in two days, and pass through 1248 Parliament in a couple of hours. He could not concur in the hon. and learned Gentleman's statement, that it was not necessary for the public to understand the Bill, if it became law. If anything came home to men's bosoms, the making their wills did so; and it was very well known that in the great majority of cases wills were made without professional assistance. It appeared to him that the measure, as it stood, was so encumbered with a farrago of words, that, instead of making the matter clearer to ordinary apprehensions, it involved it in additionsl mystification. A whole string of words—"at, or after, or following, or under, or beside, or opposite"—were set forth to indicate the position of the signature; all of them simply meaning, as was admitted by the Solicitor General himself, "wherever" such signature was placed. Why, then, instead of this string of words, not have the word "wherever?" Or, why the string of unmeaning "ors" which followed? Why not simply adopt the proposition of his hon. and learned Friend to omit from the present statute those words which had created all the difficulties—"at the end or foot?" Then followed a set of words, the reason for whose introduction into the Bill he was quite at a loss to conceive. The Solicitor General indeed said that unless they were inserted they could not tell that, if any one of the cases referred to occurred again, the same decisions which were now condemned might not be given again, and the same evils which it was now sought to remedy might not again arise. But it was plain that all these decisions and these evils had arisen from the words "at the end or foot" in the existing statute, and that when they were removed, the difficulty would cease. The noble and learned Lord who introduced the Bill, seemed indeed to have felt that the enumeration of these circumstances, which were not to affect the validity of the signature, was not sufficient; for the clause went on to say that their enumeration should not affect the generality of the enactment. Why, then, insert them at all? for the only effect of their statement would he to confuse the minds of simple persons. But then followed a portion of the clause the effect of which would be absolutely mischievous, for it declared that "no signature under the said Act, or this Act, shall be operative to give effect to any disposition or direction which is underneath, or which follows it." Now, suppose a person after signing his name, fancying he 1249 had concluded, thought of something additional, and wrote it at the side, and a little below his signature, this will would be invalidated by the words to which he had referred, although the witnesses might have signed their names below it, and although the testator might have acknowledged it as his disposition in their presence. Now this would be a most unjust proceeding, and would create very extensive mischief. All that they wanted to know was, whether a man, by his signature, really meant to attest the document to which it was placed as his will. It would be a discredit to the Statute-book to adopt such a farrago of words as this clause contained; and he begged Her Majesty's Government to assent to the Bill going to a Select Committee, that this clause might be considered, and the Bill sent back to them in a proper
§ MR. WHITESIDE
said, this Bill came down to them from the House of Lords, from a Select Committee of very distinguished lawyers, and he thought it was therefore a very extraordinary thing for the hon. and learned Gentleman who had just addressed them to propose that it should be referred to a Select Committee of that House. What was the mischief which this Bill proposed to remedy? The Act of Victoria requiring the signature to be at the foot of the will, the question of validity of the will came to be decided not by a rule of law but one of space; and this Bill, therefore, provided that wherever the signature was placed, the will should be valid, if it was apparent on the face of the document that it was the intention of the person signing to attest it as his will. The next part of the Bill negatived every bad decision heretofore made condemning the wills of honest men; declaring that none of the objections which had prevailed heretofore should do so hereafter. But lest it should be contended that only the enumerated defects were remedied, the Bill went on to say that the enumeration of these circumstances should not affect the generality of the enactment. He contended that the clause was therefore sufficient to remedy the mischief complained of—first, because it provided where the signature should be placed; second, because it negatived every bad decision; and, lastly, that the particularity of the language employed should not impair the generality of the enactment. The Bill was not intended as a general statute on the subject of wills, 1250 but it would be a useful reform; and it expressed, not by a jumble or a labyrinth of words, but very clearly and distinctly, what it intended to accomplish; and he therefore hoped that it would receive the support of the House.
§ MR. JOHN STUART
said, that in the course of the present debate, it had been proposed to strike out all those words which had been placed in the Bill in the other House of Parliament, and to insert another clause. It was also admitted that the original clause was the work of a noble and learned Lord, the greatest lawyer now living; and was not only his production, but had also received the sanction of the whole House of Peers, comprising the eminent Judges who sat in that House. To hear it said, therefore, that what had thus passed the House of Lords, was a mere farrago of words, showed the debate had declined into something very far from the real debate on the clause. The principle of the clause was plain; it declared what should be a sufficient authentication of a will, and what was called a farrago of words was a plain and accurate description of what certain Judges had declared not to be an execution of a will under the existing law, and a declaration that in so doing they had proceeded on a misinterpretation of the existing law, or, at all events, of the intention of the Legislature. Could they proceed on a safer principle than to say that the existing law should remain in force, but with a distinct correction of the misinterpretations? He thought it was not reasonable to refer this Bill, which had passed the House of Lords, and had received the sanction of the Lord Chancellor and of all the law Lords who sat in the Upper House, to a Select Committee, seeing that no two of the lawyers who had criticised it had agreed with respect to the language in which another enactment ought be framed. Neither the Master of the Rolls nor the hon. and learned Member for the City of Oxford (Sir W. P. Wood) would adopt the Amendment before the House; and yet the latter had promised that if the Bill were referred to a Select Committee, it would be brought into a better shape in a couple of days. He believed that if that Committee were composed of the lawyers who had addressed the House that night, the only conclusion to which they could come would be, that some authority should decide between their different views, and that they would take as the best the authority of the House of 1251 Lords, from which the measure had emanated. All were agreed that there ought to he an Act passed this Session. The object of the Bill was, that these objectionable decisions of the ecclesiastical courts should not continue the law of the land, and every body was agreed that these decisions ought not to be the law of the land. If, then, the Amendment were adopted, they would have, instead of a legislative enactment annulling those decisions, a new set of decisions, a new mode of construction, and something would be required ten years hence for the very purpose which his hon. and learned Friend the Member for Aylesbury asked the Committee to repudiate. A safer principle he never saw in any Bill. The late Solicitor General had shown so little of his usual accuracy that he had misapprehended the scope of the Bill. He seemed to think that this Bill repealed the law as to wills being signed at the foot or end; but was it not a safer thing to take the existing law passed in 1837, and, with ten years' experience, add this explanation, than to repeal the most important section by which the whole authority of that Act would be set at nought? He was not prepared so to deal with such a question. The same criticism might be made upon any enactment as had been pronounced upon this. The House would consider that the referring to a Select Committee was, in fact, only a mode of rejecting the Bill for the present Session. Instead of two or three days being occupied in discussion, if it went back to the House of Lords altered by a Select Committee, it would be referred to a Select Committee of the House of Lords, and would not pass this Session. The proposal to send it to a Select Committee was, therefore, a proposal to leave the law in the disgraceful state to which it had been brought by decisions contrary to the spirit of the Statute of 1837.
§ MR. MULLINGS
observed, that the reason why the words "signed at the foot of the will" were originally introduced, had been lost sight of. It was done to prevent fraud, for it was well known that by inserting dispositions on the second sheet after the will had been signed, great frauds had been committed on the families of testators. He knew a case where a person had lost a large fortune by a fraudulent insertion of a disposition contrary to the wishes of a testator on the second page. If, therefore, the Amendment of the hon. and learned Gentleman were 1252 adopted, those fraudulent practices could not be guarded against, and the law would be left open to all the difficulties that now existed.
The MASTER OF THE ROLLS
said, his object in referring the Bill to a Select Committee was not to prevent its passing this year, but to obtain the assistance of some of the learned Judges and those most conversant with the practice of the Courts of Equity, to put the Bill in a proper form. He reminded the House that a Report of the Ecclesiastical Commissioners recommended the course with respect to wills which was now suggested. He would move that the Chairman report progress, with the view of having the Bill referred to a Select Committee; but if he should not succeed, he would not trouble the House further.
§ MR. WALPOLE
was understood to say he was sorry his right hon. Friend the Master of the Rolls should press his Amendment to a division, because the effect of sending the Bill to a Select Committee would be to send it to a Committee of lawyers, who would all differ on the subject. He thought they were more differing on the peculiar mode in which the Bill should be worded, than upon the effect it would have when brought into practical operation. The law relating to the execution of wills would remain as settled in the year 1837—namely, that the testator should sign in the presence of two witnesses, and those witnesses should sign in the presence of the testator, and in presence of each other. The effect of this Bill would not be to alter the law of wills with reference to their execution, but would simply say that the Judges were not to put that forced construction upon the Act of Parliament which had had the effect of leaving a vast number of wills unadministered. He hoped the Committee would pass the clause.
§ Motion made, and Question put, "That the Chairman do report progress, and ask leave to sit again."
§ The Committee divided:—Ayes 64; Noes 121: Majority 57.
|List of AYES.|
|Anstey, T. C.||Brown, W.|
|Arkwright, G.||Bunbury, E. H.|
|Bass, M. T.||Carter, S.|
|Bell, J.||Cavendish, W. G.|
|Berkeley, C. L. G.||Clements, hon. C. S.|
|Bouverie, hon. E. P.||Cowan, C.|
|Brotherton, J.||Crowder, R. B.|
|Dalrymple, J.||Monsell, W.|
|Douglass, Sir C. E.||Morris, D.|
|Duncan, G.||Muntz, G. F.|
|Ellice, E.||Murphy, F. S.|
|Ewart, W.||Norreys, Sir D. J.|
|Fox, W. J.||Parker, J.|
|Greene, J.||Pechell, Sir G. B.|
|Hall, Sir B.||Rawdon, Col.|
|Hardcastle, J. A.||Ricardo, O.|
|Hastie, A.||Rice, E. R.|
|Hastie, A.||Romilly, Sir J.|
|Hayter, rt. hon. W. G.||Scholefield, W.|
|Headlam, T. E.||Scully, F.|
|Hindley, C.||Seymour, Lord|
|Hutchins, E. J.||Slaney, R. A.|
|Jackson, W.||Strutt, rt. hon. E.|
|Keating, R.||Tancred, H. W.|
|Kershaw, J.||Thompson, Col.|
|King, hon. P. J. L.||Thompson, G.|
|Kinnaird, hon. A. F.||Thornely, T.|
|Langston, J. H.||Tufnell, rt. hon. H.|
|Mackie, J.||Wakley, T.|
|Mangles, R. D.||Wilson, M.|
|Milnes, R. M.||Wood, Sir W. P.|
|Moffatt, G.||Bethell, R.|
|List of the NOES.|
|Adderley, C. B.||Filmer, Sir E.|
|Archdall, Capt. M.||Floyer, J.|
|Bailey, C.||Forbes, W.|
|Baillie, H. J.||Forester, rt. hon. Col.|
|Baldock, E. H.||Forster, M.|
|Bankes, rt. hon. G.||Freestun, Col.|
|Barrow, W. H.||Freshfield, J. W.|
|Benbow, J.||Galway, Visct.|
|Bennet, P.||Gaskell, J. M.|
|Beresford, rt. hon. W.||Gilpin, Col.|
|Blair, S.||Goddard, A. L.|
|Blandford, Marq. of||Greenall, G.|
|Booker, T. W.||Grogan, E.|
|Booth, Sir R. G.||Guernsey, Lord|
|Bramston, T. W.||Gwyn, H.|
|Bremridge, R.||Hale, R. B.|
|Bridges, Sir B. W.||Hallewell, E. G.|
|Brockman, E. D.||Hamilton, G. A.|
|Brooke, Sir A. B.||Hayes, Sir E.|
|Bruce, C. L. C.||Heard, J. I.|
|Buck, L. W.||Henley, rt. hon. J. W.|
|Butler, P. S.||Herbert, H. A.|
|Butt, I.||Hildyard, R. C.|
|Cabbell, B. B.||Hope, Sir J.|
|Carew, W. H. P.||Hotham, Lord|
|Chandos, Marq. of||Hudson, G.|
|Child, S.||Jolliffe, Sir W. G. H.|
|Christopher, rt. hn. R. A.||Jones, Capt.|
|Clive, H. B.||Kelly, Sir F.|
|Cocks, T. S.||Knight, F. W.|
|Collins, T.||Langton, W. G.|
|Colvile, C. R.||Lennox, Lord H. G.|
|Corry, rt. hon. H. L.||Lockhart, W.|
|Cotton, hon. W. H. S.||Long, W.|
|Dawes, E.||Lowther, hon. Col.|
|Deedes, W.||Lygon, hon. Gen.|
|Dod, J. W.||M'Taggart, Sir J.|
|Duncombe, hon. A.||Mahon, The O'Gorman|
|Duncombe, hon. W. E.||Mandeville, Visct.|
|Dunne, Col.||Manners, Lord J.|
|Edwards, H.||Miles, P. W. S.|
|Farnham, E. B.||Miles, W.|
|Farrer, J.||Milner, W. M. E.|
|Mullings, J. R.||Sullivan, M.|
|Mundy, W.||Tennent, Sir J. E.|
|Naas, Lord||Tollemache, J.|
|Napier, rt. hon. J.||Trollope, rt. hon. Sir J.|
|Newdegate, C. N.||Tyler, Sir G.|
|Pakington, rt. hon. Sir J.||Tyrell, Sir J. T.|
|Portal, M.||Verner, Sir W.|
|Renton, J. C.||Vesey, hon. T.|
|Repton, G. W. J.||Villiers, Visct.|
|Seaham, Visct.||Villiers, hon. F. W. C.|
|Seymer, H. K.||Vivian, J. H.|
|Sibthorp, Col.||Waddington, H. S.|
|Smollett, A.||Walpole, rt. hon. S. H.|
|Spooner, R.||West, F. R.|
|Stafford, A.||Whiteside, J.|
|Stanford, J. F.||York, hon. E. T.|
|Stuart, H.||Mackenzie, W. F.|
|Stuart, J.||Bateson, T.|
§ Clause agreed to.
§ Clause 2.
§ MR. BETHELL
moved an Amendment making the clause applicable to the wills of all persons departing this life after the passing of this Act.
The SOLICITOR GENERAL
opposed the Amendment as unnecessary, the clause having already a prospective effect.
§ SIR WILLIAM PAGE WOOD
objected to legislating on so important a subject in so hurried a manner. He feared the system of legislation upon which they were entering would lead to endless ligitation, and place the law in such a state as to be unintelligible to anybody.
§ MR. NAPIER
said, the Bill had been in the hands of hon. Members a long time; and as no lawyer except the hon. and learned Member for Aylesbury had offered an Amendment, which the House had negatived, he thought there was no reason why the Bill should be delayed. He considered the Act ought to apply to every will already made in cases in which vested rights had not been acquired.
§ The Amendment was then negatived without a division, and the clause agreed to, as were the remaining Clauses.
§ House resumed. Bill reported without Amendment.