MR. LOCKE KINGsaid, he would now beg to move for leave to bring in a Bill "to amend certain rules of law and equity relating to the administration of deceased persons." The object of the Bill was to prevent the heir or devisee of a real estate from claiming the payment of any call or debt out of the personal estate of the deceased testator. In this, he was only seeking to carry out the principle which was laid down by Sir Samuel Romilly with regard to the payment of debts out of real estate. That great man, in a comparatively unenlightened age, got this House repeatedly to assent to the proposal—which, however, was rejected as repeatedly in the House of Lords—that real estate should be made liable to the payment of simple contract debts. Now, he asked that the same principle should be extended to debts which the deceased had incurred by way of mortgage. Cases of great hardship frequently occurred on the death of the head of the family through claims being made upon the personal estate, which repeatedly left the children quite destitute. He had been induced to bring this question before the House by the noble Lord the Member for the City of London, who, when on a former occasion he (Mr. Locke King) had introduced a much larger measure, expressed his opinion that this subject ought to be treated in a separate Bill, which accordingly he had now asked permission to introduce. Another point he wished to include in this Bill was, where the testator had by his will desired that his real estate should be converted into personal estate for the purpose of paying off his debts, that the residue, if there was a residue, should be considered as personalty, and not, as at present, be looked upon as part of the realty.
THE SOLICITOR GENERALsaid, he hoped that the introduction of this Bill would lead to a discussion which would result in an amendment of the law. The first point to which the hon. Member referred was undoubtedly one of great anomaly, but he could have wished that it had been considered in connection with a much larger subject—namely, the general state of the law with regard to the administration of assets. It was unquestionably connected with what he would term the barbarous and absurd distinction between legal and 579 equitable assets. With regard to the other point to which the hon. Member referred, namely, the effect of a charge in converting real property into personalty, as long as the general law remained what it was that point must be more doubtful; but the subject was one deserving of discussion. He looked for improvement, however, chiefly from the abolition of the distinction between legal justice and equitable justice.
§ MR. MALINSsaid, he would point out the absurd distinction which at present existed between a special debt and a simple contract debt, the preference being given to one piece of paper because it had a seal upon it, and the other had not. If his hon. and learned Friend the Solicitor General would endeavour to do away with this most absurd distinction, he would have his most cordial support.
MR. LOCKE KING, in reply, said, he had introduced this small measure because he knew, if he had brought in a more extensive one, he would be told that he was dealing with too great a subject.
Leave given; Bill ordered to be brought in by Mr. Locke King, Mr. Headlam, and Mr. Massey.
Bill read 1°.