LEAVE. FIRST READING. (Hansard, 17 February 1859)

MR. LOCKE KING
^* Sir, It is now some time since I asked the House to take into consideration, the propriety of altering the law of succession to real estate in cases of intestacy, and to make a law more in accordance with the age of progress in which we live. My reason for not having brought this subject under the consideration of the house during the last two years is simply this, that having introduced a variety of other measures which I felt confident would be attended with success, in which I have not been disappointed, I was unwilling to trespass too largely on that kind indulgence which the House has invariably shown me; not that I think any question can be of much greater importance than that a uniform, and above all, a just law should settle the estates of intestates.
When I first brought this question forward, I was indeed surprised to find the vast amount of ignorance which prevailed generally among all classes, as to the state of the law which settles how the real and personal estates of intestates shall descend. I also found there was something even worse than ignorance on the subject to contend with; for, after all, one may easily inform those who are unacquainted with the working of a law as to its consequences. They then frequently become warm advocates of a change in that law, when they see that it is unjust and cruel. I found, however, there was such a deepseated prejudice in favour of the existing law of succession to real estate, not supported by argument, or even by common sense, wrapped up and shrouded as it were in itself, that it seemed next to impossible to uproot it. I am happy to say that this prejudice is dying out, and that the present state of the law is beginning to be understood by those whom it injuriously affects, namely, the small owners of land or houses; they see that a change in the existing law is essential for the happiness of the families in the class to which they belong. On the other hand, the owners of large landed estates see the proposed alteration in the law will not affect them; it will not diminish the size of their estates, or compel them to divide those estates where they had rather not do so. They will be as free as they are now.
I shall endeavour to explain to the House, in a very few plain words, the state of the law, the complaint I make against it, and the alteration I propose. If there are 475 honourable Gentlemen who are still in favour of the existing law, I ask them for a few moments to give me their attention; and I think I shall be able to convince them, that the Bill I ask leave to introduce is just, and that the times we live in really do require that laws which were intended for a very different state of society, should now at all events be modified.
The Statute of Distributions, which passed in the reign of Charles II., "for the better settling intestates' estates," is, on the whole, a satisfactory law, simple in its operation, well understood, and, above all, it is just.
We have now, as far as personal estate is concerned, since the Bill which I had the honour to introduce for abolishing the customs of London, York, and other places, has been placed on the Statute-book, an uniform law throughout the kingdom. The law, on the other hand, which regulates the descent of the landed estate of an intestate, is founded on the very opposite principle, if it has any principle at all. It is a perfect chaos, inconsistent with itself, and generally admitted to be oppressive and unjust, whenever it comes into operation.
Under the Statute of Distributions, where a parent dies intestate, leaving a widow and children, his property being personal is distributed in a very equitable manner; one-third goes to his widow, and two-thirds go to his children. Or in the event of a person leaving a widow and no children, then one half goes to the widow and the other half to the next of kin.
If we turn to land, in a similar case, we find that where a parent dies intestate, leaving a widow and children, if his estate be freehold land, the whole of it descends to the eldest son, and the remaining children and the widow are, under the sanction of the law, left destitute.
Such is the law where the intestate dies possessed of freehold land; but where the land is leasehold, and there is a great deal leased for 99 years, 500 years, or even 1000 years, or 10,000 years, in value quite equal to freehold,—here a most happy quibble of the law steps in and distributes it as personal estate.
Again, leasehold differs from leasehold; for if the leasehold be for lives, and not for a term of years, then a most unhappy quibble of the law steps in, and determines that such a leasehold shall descend as real estate does, and not as personal estate. I have only as yet mentioned the anomalous, 476 absurd, and inconsisent state of the law, as far as freehold and leasehold estate is concerned; I will now call the attention of the House to a series of other most glaring anomalies, which affect the landed property of intestates. As I am not a lawyer, and always tremble lest I should be caught up by those honourable Gentlemen who belong to that learned profession, I will read the description which was once given in this House by one of its brightest ornaments:— Is it fitting or consistent with reason, or indeed with justice, that merely crossing the river, or travelling a distance of some miles in this neighbourhood, should make so great an alteration in the law of real property, as that to the eastward of us all the sons inherit equally,—to the westward the youngest alone,—and here the eldest? But these rules of the Common Law, of Gavelkind, and Borough English, are better known and operate within more defined limits. What shall be said of the Customary Tenures in a thousand manors, all different from the Common Law that regulates freehold estates, most of them differing from each other? Is it, I ask, fit that this multitude of laws, this variety of codes, the relics of a barbarous age, should be allowed to exist in a country subject to the same general bonds of government. … In some manors the eldest daughter succeeds to the exclusion of her sisters, as the eldest daughter (in default of male heirs) succeeds to the Crown of England; in other manors, all the daughters succeed jointly, as copartners after the manner of the Common Law. In some manors, the wife has her dower one-third of the tenement, as in the case of freehold; in others, she has for her 'free bench' one half; and again, in some she takes the whole for life, to the exclusion of the heir. The fines on death and alienation vary; the power and manner of entailing and cutting off entails vary; the taking of heriots and lord's services varies. There are as many or more of these local laws than in France, in the Pays de Coutume, of which I have seen four hundred enumerated, so as to make it the chief opprobium of the old French Law, that it differed in every village. Is it right that such varieties of custom should be allowed to have force in particular districts, contrary to the law of the land? Now, the Bill which I ask the House to allow me to introduce would, in cases of intestacy, do away with all these absurd distinctions; it would make one uniform law for all the property of intestates, whatever that property is, whether real or personal; and it would, above all, be founded on a principle, and would be in its nature just.
It has been the habit with persons in favour of the present law, to accustom themselves to believe that it was a part of the ancient institutions of the country. This is quite a mistake; for in those days of freedom, of which we are justly proud, our Saxon forefathers not only had no such law, but the very opposite was in force, for 477 all the land was divided equally among all the sons and daughters. The present law was introduced by the Normans, the more effectually to subdue and break the spirit of a conquered nation. I admit that, in those days, there may have been reasons which made it expedient to have such a law, and not to be unjust. It was expedient then that the descent of land should form a part of a vast military system. But I ask, do you want the descent of land to be so ordered for such a purpose now? We do not require now great lords and knights, with their retainers and vassals, as a part of our military system. Those laws show what were the habits of a people who knew not the true principles of legislation, and who were ruled in such a way as to make them seek to be conquerors abroad rather than to be happy at home.
Adam Smith remarks with great force:— When land was considered the means not of subsistence merely, but of power and protection, it was thought better that it should descend undivided to one. In those disorderly times every great landlord was a sort of petty prince. Laws frequently continue in force long after the circumstances which first gave occasion to them, and which could alone render them reasonable, are no more. In the present state of Europe, the proprietor of a single acre of land is as perfectly secure of his possession as the proprietor of a hundred thousand. Certainly this law has continued in force long after the circumstances which first gave occasion for it, and alone rendered it reasonable, have ceased.
I ought to say, that, from my having repeatedly brought this question forward, I have become acquainted with a vast number of cases of real hardship and suffering to widows and fatherless children, through the state of the law, and solely from the father not being acquainted with it. I make bold to say, that among the middle classes there is scarcely one in a hundred who knows the law; they always imagine that land descends as money does. I am able to say that the discussions in this House have done good, for I know of several cases where fathers have made wills, and felt most happy that they have rescued their children from the cruelty of the law, from misery and ruin.
It must not be thought that these cruel cases occur only where there are children
I myself have had, among many others, a case of peculiar cruelty to a widow, brought under my notice. A small tradesman married a woman with some money; no settlement was made on the marriage, 478 he would not invest her money in his business, lest it should run any risk of being lost. After they had lived very happily together for some years, the house they resided in was for sale; he told his wife that it would be a very good investment for her money, and accordingly he bought it. He died intestate, ignorant of the law; his own nephew, his heir-at-law, claimed and took the house, and the widow is now destitute, a menial servant.
Such was the barbarous state of the law in this civilized country only a year ago, that the wife was deprived of her honest earnings. The wife even now is obliged to have a settlement made, because, unless that is done, her husband may rob her of all the property she had. The husband again, the owner of freehold land, is obliged to make a will, solely because the law would rob her and all her children, except one, of perhaps their all.
It is the fashion with some to say, for want of better argument, that this Bill should do away with what they call the law of primogeniture. Now I think this is altogether a mistake; for, seeing that there is no law which compels a man to give all his property or land to his eldest son, there cannot be a law of primogeniture. Under the Norman dynasty there was, no doubt, a law of primogeniture, for no man could leave land by will, or even alienate it, or part with it in any way. Kent in his "Commentaries on American Law," shows us pretty plainly what was the feeling in the feudal times. He tells us:— This restraint on alienation was a violent and unnatural state of things, and contrary to the nature and value of property, and the inherent and universal love of independence. It arose partly from favour to the heir, and partly from favour to the lord; and the genius of the feudal system was originally so strong in favour of restraint upon alienation, that, by a general ordinance of the 'Book of Fiefs,' the hand of him who knowingly wrote a deed of alienation was directed to be struck of. The stringency of these laws was modified about 300 years ago, when Henry VIII., for the first time, allowed by statute land to be devised by will.
It was then that the law of primogeniture was repealed; from the Norman Conquest up to that time it had been in full force. It was then that the first inroad was made on this great military system. All I ask is, in the event of a person dying without a will, a uniform and just law should apply to all property, that land should not differ from land, that land 479 should not differ from all other property. It is the duty of society in such cases to make a just law, and to see that those who have a natural right to be provided for, out of the property of a deceased, should not be left to starve, solely because he has not made a will: society is bound in such a case to make a will, founded at all events on the principle of justice.
I hope, hon. Gentlemen, the possessors of landed estates will not be alarmed at this proposed modification of the law, for it cannot affect them. Their estates are almost invariably settled or entailed in such a way that they have not the trouble of making a will; their wills are generally made for them, not uncommonly before they were born. But in any cases where they happen to be free, they can always enforce the present law; they can make their own law, by merely expressing that wish in writing,—their alarm is after all imaginary.
There always have been in Parliament great difficulties in making any change in the laws relating to landed property. I would refer in proof of this to the difficulty the great Romilly had to contend with when he proposed to make freehold estates assets for the payment of debts. A man could incur simple contract debts to any amount, and yet his freehold estate was in no way liable for their payment. The alarm was so great that for ten years Parliament actually refused him this simple and just proposal. All that this great man could do, after ten years' labour, was to get Parliament to make the freehold estates of traders liable for the payment of their simple contract debts. The remark in his "Diary" is very forcible. He says:— Many of the objections which were made to the former Bill are applicable to this—that it is an innovation; that it is to affect land without evidence in writing; that it holds out a delusive credit, &c. There has not however been a single word uttered in opposition to the Bill in any stage of it. Country gentlemen have no objection to tradesmen being made to pay their debts; and to the honour of men in trade—of whom there are a good many in the House—they too had no objection to it. And we have long since acknowledged the principle that the personal estate of intestates should provide for the maintenance of children; but we maintain the law that one child should, where real estate is concerned, as it were rob all the other children, as well as his own mother. The debtor, the owner of freehold land sanctioned by law, could rob and defraud all 480 his creditors, in the same way that a son and a brother can now rob the whole of his family and make them dependent upon charity—perhaps on the Union workhouse. It was not until 1827 that freehold estates were made assets for the payment of debts of all classes generally. The Act was passed by the present Master of the Rolls, Sir John Romilly. The law is so cruel, and so much in favour of the heir-at-law, that where a person has only contracted to buy land, intending to make a will when the purchase is completed, but dying before the purchase is completed, his executors would be obliged to complete the purchase and hand the estate over to the eldest son. I take the following illustration, as to the unsatisfactory state of the law, from a work published some years ago by Lord St. Leonards, when Sir Edward Sugden. A moment's reflection will show what serious consequences may follow from a neglect on your part; for suppose you purchase an estate with the £50,000 in the Funds which you have given by your will to your younger children, and which constitutes the bulk of your personal property, and should neglect to devise the estate, the money must go to pay for it, at the expense of your younger children, who would be left nearly destitute, whilst your eldest son, to whom the estate would descend, would have an overgrown fortune. He says that distressing cases of this kind are continually occurring. There appears also a difficulty as to how the person who is about to change his property from personal into real estate is to make a will.
I myself have had some experience as to the alarm that exists among certain persons when it is proposed to alter a law respecting real estate; for two or three years ago I brought in a Bill, to effect a change with regard to mortgages, that a mortgaged estate should descend with the burthen, the debt, imposed upon it. That Bill happily has become law; but, although it only carried out the principle of Sir S. Romilly's Bill, that freehold estates should be assets for the payment of debts, it only passed the other House by a majority of three.
Sir, I hope we shall not have that very trite saying adduced, that the effect of this Bill will be to destroy the House of Lords. The House of Lords stands on something better, I hope, than an unjust law; if it is to be supported by injustice, it will very soon fall. You could not say anything harder, or more cruel, of that august assembly than that the present law of succession is necessary for its support. 481 In point of fact, this law could not affect the Peers in any way; for I must repeat, their large estates are in almost every instance entailed in such a way, that they have no power to make a will. I would remind the House that this absurd objection of injuring the House of Lords was used against Sir S. Romilly, when he brought in his Bill to make owners of real estate pay their debts, and was refuted by him in a masterly manner.
I hope also that I shall not be told that I seek to introduce the law of Succession as it is in France. No such thing; I disapprove of the law as it exists; the parent has there a very limited power of willing. I propose, on the contrary, that he should have the fullest possible power of willing his property; but that in those cases, and those only, where he has made no will, all his children should be provided for.
There are other reasons of a special nature which ought to induce the House, and above all Her Majesty's Government, at the present moment, to pass this Bill. You are by degrees applying the principles of free trade to land. You have broken down many of the barriers which existed between real and personal property. You have, during the last few years, because it was convenient, applied the legacy-tax, under the name of succession duty, to the soil. The Solicitor General is about to break down and remove the difficulties which exist in regard to the alienation of land. He is about to carry out the principle of giving a Parliamentary title to the land, and tread in the footsteps of the present Master of the Rolls, to whom we are so much indebted for having originated the plan, and who in times of great difficulty established the machinery, which has been beyond measure successful in Ireland. If then you are about to apply the commercial principle to the soil, and to make land as easily transferable as money in the Funds; if you show by your doing so, that you have no respect for those laws which made alienation difficult and almost impossible, how can you, with any consistency, refuse to let land descend in the same way as other property does, particularly when, by refusing to do so, you cause great distress and suffering? All that I ask by this Bill is, that, in the event of a person dying intestate, a uniform, and, above all, a just law, should apply to all property.
Depend upon it, the day is not far distant when a demand will be made upon you to pass this Bill; the people are beginning 482 to feel that, having submitted to the authority of this feudal law, it is time that it, in its turn, should be submitted to the authority of reason; that, having been hitherto the slaves of it, and suffered from the consequences of its injustice, they in their turn will also become its judges.
I beg to move, for leave to bring in a Bill for the better settling the Real Estates of Intestates.

THE SOLICITOR GENERAL
said, he had but very imperfectly heard the observations of the hon. Member in introducing the Bill, but so far as he could gather he understood that the hon. Gentleman did not wish in any way to interfere with the disposition of landed property by will, but that he merely desired to provide for cases in which no will had been made by the owner. [Mr. L. KING: Hear, hear!] That sounded a very plausible proposition when so put; but he thought that the hon. Member would find that he would have to consider a great number of cases which had found no place, so far as he (the Solicitor General) had heard, in the observations which the hon. Member had offered to the House. He would suggest, however, that the hon. Member should be permitted to lay his Bill upon the table, in order that they might see how he proposed to deal with difficulties which, in his mind, presented themselves by the score to any measure such as had been proposed. With this view he should offer no opposition to the introduction of the Bill; but he hoped that the hon. Member would not suppose that the Government wished in the slightest degree to lend any countenance to the idea that the order of succession to landed property in this country was to be changed, or that on the death of a person who had made no will the landed property would be divided among all the family, as was the case on the Continent, instead of descending, as at present, to the eldest son. When, however, the hon. Member said that he did not desire to prevent the free disposition of real property he did so in effect; because, whereas at present a man knew that if he died intestate his freehold estate would go by natural descent to his eldest son. he would under the proposed Bill be required to make a will to effect that same object. He believed when the hon. Member came to consider the various difficulties that arose in this matter, he would see that it was by no means so simple a thing as he appeared to think. However, until the Bill was before 483 them, it was impossible to know how these questions were dealt with, and therefore he should offer no opposition to its introduction.

§ LORD H. VANE
said, that he had no difficulty in gathering from the observations of his hon. Friend the Member for East Surrey that his object was altogether to alter the law with respect to the descent of real estate in cases of intestacy. He (Lord H. Vane) contended, in opposition to the principle sought to be established by his hon. Friend, that in providing for cases of intestacy they were bound to look to what in all probability would have been the wills of the individuals, supposing them to have made wills; and if they found that in the great majority of instances settlements were made in a particular manner, they were bound to infer that such was the opinion generally prevalent among all classes. He believed that the hon. Gentleman was mistaken as to the law on this subject. If a man died intestate, leaving landed property, his widow was entitled to a third of it. She could not be deprived of that unless her husband had by a special bar taken it away from her. In the case of a man without children dying intestate, leaving personal property. his widow was entitled to half of it. He had no great confidence that the hon. Gentleman would produce such a measure as would meet the case, or receive the approbation of that House or of the country; but he should offer no opposition to the introduction of his Bill.

§ MR. MELLOR
said, his hon. Friend did not propose to interfere with settled estates. His hon. Friend simply proposed that where a man had omitted to make a will for himself the State should make a will for him, by distributing his estate according to the principles of equity and justice; and he (Mr. Mellor) hoped that Her Majesty's Government would find them selves able to support the Bill. He thought when they came to consider it they would find it had been most accurately described by his hon. Friend, He wished to correct an error into which the noble Lord had fallen, and he was sure the Solicitor General would agree with him. There was scarcely a conveyance in modern times in which the property purchased or acquired was not conveyed to uses to bar dower. Therefore the widow could scarcely ever derive benefit from such property; and where it was not so conveyed, and was small, just conceive what was her position. Suppose the pro- 484 perty was not worth £300, and the yearly income derivable from it only £9, the widow would be entitled not to a third of the property, but merely to one-third of the £9 during her life. He believed that many petitions had in former Sessions been presented in favour of his hon. Friend's proposition. He did not believe that intestacies arose because people were content with the existing law, but because, fancying they would never die, they continually postponed the making of their will, and at length died suddently without having made it.

§ MR. HADFIELD
approved the Bill, because it would go a great way towards accomplishing most desirable object—namely, the doing away with all distinction between real and personal property. It was idle to say, as an argument against the Bill, that there would be great inconvenience in distributing real property, because, even at present, leasehold property was distributable like moveable goods.