[BILL 98.] COMMITTEE. (Hansard, 7 April 1884)

MR. ARTHUR
O'CONNOR moved, in page 1, line 11, to leave out the words "customaryhold," in order to insert the words "of any other tenure."

§ MR. GREGORY
said, the Bill had come before them so very abruptly that he did not think they were in a fair position to consider it at this time. It was a measure which sought to make a most revolutionary change in the law, and it would affect all landed property throughout the country. Under the existing law, the primary fund from which the debts of a deceased person were to be paid was his personal estate; but his real estate might be brought in in case the personal estate was not sufficient. This Bill proposed to place the real estate and the personal estate exactly on the same footing; and the devisee or heir-at-law could not deal with the real estate until all the debts had been paid. This matter required more consideration than could now be given, to it, and he should, therefore, move to report Progress.

§ MR. ARTHUR O'CONNOR
said, he thought the Committee had already manifested general approval of the provisions of this Bill; and he could hardly understand what reason the hon. Member could have for opposing so moderate a measure. The grounds he now put forward were grounds which should have been brought forward on the second reading.

§ MR. TOMLINSON
said, he thought the hon. Member was not dealing quite fairly in saying that the objections now taken should have been advanced on the second reading. It was understood that the provisions of the Bill would be carefully considered by the Law Advisers, and that the Committee should then have the benefit of their exertions; but it did not seem that they had had time to explain their views. It appeared to 1918 him that the hon. Member (Mr. Gregory) was reasonable in objecting to proceed now.

§ MR. WHITLEY
asked for the opinion of the Law Advisers, because this was a Bill of an extraordinary character. When a person left freehold property to anyone, it did not pass to the devisee as real estate, but to the executor as a personal asset; and it would be a matter of serious consequence that no man who had property should be able to part with it except under the conditions here provided. Such a change ought not to be introduced by a private Member, for such a change respecting the devolution of property was one of great importance. A Bill of this kind ought not to pass except on the responsibility of Her Majesty's Government.

§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL.)
said, the real question was, whether this Bill would improve the law? If it would, then they ought to welcome it even from a private Member. He believed there could be no question, that heavy expenses were caused at the present time by assets being administered under suits only for the purpose of securing that real property should become chargeable for debts. Obviously, if that could be avoided it would be very desirable, because it was not to the advantage of owners of property that it should be wasted in Law Courts for the purpose of administration, which only became necessary through the circumstances of the moment. He had endeavoured to assist the hon. Gentleman opposite with his Bill, by putting before him such Amendments as might meet some of the difficulties that had been raised. This first Amendment, as to the property vest- 1919 ing in a legal personal representative, was drawn in terms which had received the approval and authority of the hon. and learned Member for Christchurch (Mr. Horace Davey), who was no mean authority on the subject; and also of an eminent conveyancer, Mr. William Barber. The scheme was also recommended by a Select Committee of that House; therefore, there was considerable authority in favour of the Bill. All leasehold estates, however long the term, vested in a legal personal representative, and he had not heard that that had caused any real difficulty; and he did not see why there should be any difficulty when freeholds were vested in the same manner. It had been urged that they might be charged with debts; but that charge was, in the first instance, on the property; and although it was vested in a devisee he could not sell it until it was seen that the charge would be met. They could not get rid of that by throwing it into Chancery; they would still be faced with a difficulty; and he did not see that that would be increased by the propositions of the Bill. On the other hand, he believed that they would be relieved of very considerable law costs; and a Committee of that House some years ago held that a provision of that kind would tend very greatly to simplify titles, and would not tend to the contrary result, as hon. Gentlemen supposed. The late Lord Chancellor had stated that although he saw difficulties in the way, he also saw advantages in that scheme. Therefore, he thought that he had shown that the matter had not passed without consideration; at the same time, he thought the hon. Member in charge of the Bill would be well advised to carefully consider and to welcome any suggestions from hon. Members opposite.

§ MR. GREGORY
said, he believed the Bill would cause increased litigation rather than otherwise, because it would lead to continual disputes between the heir-at-law and the personal representative. The real estate would vest, in the first instance, in the personal representative who could not release it until all the debts were ascertained, and who must sell or mortgage it for the payment of them The Solicitor General had referred to leaseholds; but their 1920 case was very different, as they were of the nature of personalty already. He did not see how the Bill could be amended; and as it stood he feared it would lead to a great deal of litigation.