HC Deb 18 May 1854 vol 133 cc538-42

Order for Second Reading read.


in moving the second reading of this Bill, said, he regretted that the whole of the law, more especially the common law, relating to real property was so involved in technicalities and difficulties that but comparatively few men could understand it. Its subtleties, indeed, were so great and so cunningly devised that even professional men themselves very often could not comprehend them. The consequence had been for a great number of years that the public had suffered severely. Under the present state of the law, the heir or the devisee to a real estate which had been left to him mortgaged had a right to claim payment of that mortgage out of the personal estate of the deceased owner. From that system great hardships often arose; for it frequently happened that the whole of a deceased person's personal estate, which was all that stood between his widow and the younger members of his family and destitution, was entirely swept away in order to swell up still more the already disproportionate share of a single heir or devisee. What reason could there be for saying that the real estate was not to bear the onus which the owner himself had placed upon it by mortgaging it, but that this debt should be paid out of the whole personal property, leaving the family of the devisee in many instances destitute? Estates were frequently mortgaged in order to effect improvements in them, and the heir who succeeded to an estate, with its improvements, ought not to be able to throw the expense of making them upon the personal estate of the deceased owner, whose family might thereby be reduced to penury. It was said that every one knew the law, and that these inconveniences might be obviated if persons would make a will, but, unfortunately, great ignorance prevailed upon this subject. He would state one of the cases of hardship to which the present state of the law had given rise. A gentleman had left by will the bulk of his personal estate to his wife; he also possessed some real estate, which was heavily mortgaged, and which descended to his nephew; and if the nephew had not been an honourable man and effected a compromise, the whole of the property would have gone to him, as the mortgage would have been paid off out of the personal estate. Another case was that of a man who had purchased a freehold public-house for 1,500l., mortgaged it for 800l., and, after carrying on business for some time, died intestate, leaving a son and two other children. The son took out letters of administration, sold the personal property, and appropriated the proceeds to paying off the mortgage on the freehold estate which descended to him, while the other children were obliged to have recourse to the parish. All he proposed by this Bill was to prevent the heir or devisee of a real estate from claiming the payment of a mortgage on that estate out of the personal assets of the deceased owner. The second clause of the Bill was intended to enable the wishes of a testator, who desired that his real estate should be converted into personalty, to be carried into effect. He hoped the House would not object to the second reading of the Bill after the explanation he had given of its objects.

Motion made, and Question proposed, "That the Bill be now read a Second Time."


said, he strongly objected to the Bill, as it now stood, for it might in certain cases go to disinherit the heir-at-law, which could surely never be the intention of the hon. Gentleman who had brought it in. According to the second clause, in certain contingent circumstances, so far from the heir-at-law taking that portion of the estate which was not converted, he himself, if not within the line of the next of kin, would lose the whole of his estate, instead of gaining it to the exclusion of others. If it was necessary that the law should be altered, let it be done by the Solicitor General; but the present Bill attacked a great and settled principle of law, which ought not to be altered by a measure of this kind, under the pretence of dealing with an abstract proposition. He should move that the Bill be read a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


said, that the two clauses of the Bill related to two totally different subjects. He should vote against the whole Bill, because he did not think that it had been introduced in a plain and intelligible manner. The first part of it was well enough, but the second clause had no connection whatever with it.


said, it was with him a matter of regret that the hon. Gentleman (Mr. Locke King) had not addressed himself to a much larger evil, of which the evil complained of in the first part of the Bill was but a portion—namely, the different rules that now existed in our laws touching the administration of real and personal estate. What the hon. Member had complained of was nothing in the world more than the result of one of those rules, because it was a rule of law that all the debts of a testator should be first paid out of his personal estate. If a man made a charge upon his real estate, and gave the estate to one of his children, devising it by will in the ordinary way, in nineteen out of twenty cases of that kind it would be found that he had given the estate cum onere, intending that the devisee should take it subject to the payment of the encumbrance. But the law said to the parties entitled to the personalty, "You have given a bond for the payment of that debt, among other liabilities of the testator, when you proved the will or administered in the Prerogative Court, and therefore you are bound to pay it." The same rule applied to the case of an intestate. It was an anomaly remaining in our law, and which had descended to us from feudal times, that in the administration of assets we must exhaust the personal before we had recourse to the real estate. He hoped to live to see the time when that rule would be abolished, and when all kinds of property would be equally applicable to the payment of the debts of a testator. But in the meantime he would be sorry to oppose any impediment to any suggestion for the removal of the existing evil; and he was by no means inclined to discourage legislation for that purpose, although it was directed to a portion, and not to the whole evil. It was impossible, however, for human legislation to meet all the obstacles in the way of settling disputes; they could lay down general rules with great care and precision, but the difficulty was to make them applicable in practice to every variety of case. He would therefore accede to the second reading of the Bill, on the distinct understanding that the second clause would require considerable modification in Committee before he could consent to it.


said, he did not collect from his hon. and learned Friend (the Solicitor General) that he intended to support the Bill when it got into Committee, and if it was not his intention to do so, it would be a waste of time to proceed further with it. The principles involved in the Bill were of the greatest importance. He would state to the House that for centuries it had been a settled rule of equity that a man who mortgaged his estate did not thereby manifest his intention to increase the liabilities on his personal estate, but that he did so for a temporary purpose; and the law now was that any man who desired to continue a debt on his real estate could do so by his will, and could, moreover, in that way pass that real estate in aid in the payment of his debts. He thought, when the hon. Member (M. Locke King) proposed so extensive an alteration in the law, the House would agree with him (Mr. Malins) that this was a subject which deserved the greatest possible consideration, and ought not to be dealt with in a hasty and casual discussion in that House, unless it had received the most careful consideration of those who were well conversant with the matter. He thought the House would be acting upon a sounder principle if it adhered to the settled rules of the law, rather than act upon the suggestion of any private Member of that House, who, not connected with the profession of the law, was unable to see the practical working of the measure which he proposed. Entertaining this opinion, he should feel it his duty to vote against the second reading of the Bill.


said, he agreed with his hon. and learned Friend the Solicitor General in approving of the first clause and disapproving of the second clause of this Bill. It was quite clear that the law, as it at present existed, was susceptible of improvement by the Bill before the House, and for that reason he should vote in favour of the second reading. At present the law undoubtedly operated very hardly upon individuals who could look only to the personalty of a deceased man for any provision for themselves. The members of a family frequently found that the personal estate was swallowed up by charges upon the real estate, while the real estate went to the heir-at-law.


briefly replied. Question put, "That the word 'now' stand part of the Question."

The House divided—Ayes 166; Noes 124; Majority 42.

List of the AYES.
Anderson, Sir J. FitzGerald, Sir J.
Atherton, W. Fitzroy, hon. H.
Barnes, T. Forster, J.
Bass, M. T. Fortescue, C. S.
Beamish, F. B. Fox, R. M.
Beckett, W. Fox, W. J.
Bell, J. Franklyn, G. W.
Bellew, T. A. Freestun, Col.
Berkeley, Adm. French, F.
Berkeley, C. L. G. Gibson, rt. hon. T. M.
Bethell, Sir R. Glyn, G. C.
Biggs, W. Goderich, Visct.
Blackett, J. F. B. Goodman, Sir G.
Bland, L. H. Graham, rt. hon. Sir J.
Bouverie, hon. E. P. Greenall, G.
Bowyer, G. Greene, J.
Boyle, hon. Col. Gregson, S.
Brady, J. Greville, Col. F.
Bright, J. Grosvenor, Lord R.
Brotherton, J. Grosvenor, Earl
Brown, W. Hadfield, G.
Cardwell, rt. hon. E. Hall, Sir B.
Cavendish, hon. C. C. Harcourt, Col.
Cavendish, hon. G. Hastie, Alex.
Chambers, T. Hastie, Arch.
Chaplin, W. J. Hayter, rt. hon. W. G.
Cheetham, J. Heard, J. I.
Clay, Sir W. Herbert, H. A.
Clifford, H. M. Herbert, rt. hon. S.
Cockburn, Sir A. J. E. Hindley, C.
Collier, R. P. Horsfall, T. B.
Craufurd, E. H. J. Howard, hon. C. W. G.
Crossley, F. Howard, Lord E.
Dalrymple, Visct. Ingham, R.
Davie, Sir H. R. F. Johnstone, Sir J.
Denison, E. Keating, R.
Devereux, J. T. Kennedy, T.
Drummond, H. Kershaw, J.
Duncan, G. Kinnaird, hon. A. F.
Dunlop, A. M. Kirk, W.
Ellice, rt. hon. E. Langston, J. H.
Elliot, hon. J. E. Langton, H. G.
Esmonde, J. Lee, W.
Ewart, W. Lindsay, W. S.
Fagan, W. Luce, T.
Feilden, M. J. Mackie, J.
Ferguson, J. Mackinnon, W. A.
M'Cann, J. Roebuck, J. A.
M'Taggart, Sir J. Rumbold, C. E.
Maguire, J. F Russell, Lord J.
Martin, J. Russell, F. W.
Matheson, A. Scholefield, W.
Milligan, R. Scobell, Capt.
Milner, W. M. E. Scully, F.
Milnes, R. M. Scully, V.
Michell, W. Seymour, W. D.
Mitchell, T. A. Shelley, Sir J. V.
Moffatt, G. Smith, J. A.
Molesworth, rt. hn. Sir W. Smith, J. B.
Monck, Visct. Stafford, Marg. of
Monsell, W. Stanley, hon. W.
Morris, D. Stirling, W.
Mulgrave, Earl of Strickland, Sir G.
Norreys, Lord Strutt, rt. hon. E.
North, F. Sullivan, M.
O'Brien, Sir T. Swift, R.
O'Brien, C. Thesiger, Sir F.
O'Connell, D. Thicknesse, R. A.
O'Connell, J. Thompson, G.
O'Flaherty, A. Vernon, G. E. H.
Oliveira, B. Vernon, L. V.
Palmerston, Visct. Villiers, rt. hon. C. P.
Patten, J. W. Vivian, H. H.
Pechell, Sir G. B. Walmsley, Sir J.
Pellatt, A. Watkins, Col. L.
Percy, hon. J. W. Wilkinson, W. A.
Perry, Sir T. E. Williams, M.
Phinn, T. Williams, W.
Pigott, F. Wilson, J.
Pilkington, J. Wyvill, M.
Pollard-Urquhart, W. Young, rt. hon. Sir J.
Potter, R.
Price, W. P. TELLERS.
Ricardo, O. King, hon. P. J. L.
Robartes, T. J. A. Massey, W. N.

Main Question put, and agreed to.

Bill read 2o, and committed for Tuesday 30th May.