[BILL 98.] COMMITTEE. (Hansard, 24 March 1884)

§ SIR R. ASSHETON CROSS
asked the hon. and learned Gentleman the Solicitor General whether he approved; of this measure, which seemed a most; extraordinary one?

§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
said, that he had intended asking the hon. Member in charge of it to explain its object.

§ MR. ARTHUR O'CONNOR
said, that the last time the Bill was before the House he had purposely abstained from doing more than move Mr. Speaker out of the Chair, in order to afford an opportunity to certain hon. Members, whom he understood were interested in the Bill, to put down such Amendments as they might think good. He was informed by the hon. and learned Member for Christchurch (Mr. Davey) that he had examined the Bill, and only proposed to move an Amendment to Clause 2, which 714 alteration he (Mr. Arthur O'Connor) should be prepared to accept. The other Amendments the hon. and learned Member for Christchurch had originally contemplated that hon. and learned Member had embodied in another Bill. As the Amendments to be moved had not been put on the Paper, the Committee would, perhaps, excuse him if he gave a short statement as to the object of the Bill. By the Common Law the debts of a deceased person were primarily chargeable to his personal estate. From the time of Edward I., if a person bound himself and his heirs for the payment of a debt he had contracted, on his death the lands that descended to his heirs were charged as that debt, and they became assets in the hands of the heir for payment; but if the debtor had alienated his lands in his lifetime, or devised them by his will, then the remedy of the creditor, so far as the real property was concerned, was gone. That blot on the law was removed, he thought, in 1691, when the devisee of personal property was made jointly liable with the heir, unless the deceased had, by will, charged the land with payment. For more than a century the matter stood in that way; but, in 1847, Sir Samuel Romilly, after great efforts, managed to pass into law a Bill opening up a series of reforms, in the direction of assimilating the law relating to real property with that relating to personalty. By Sir Samuel Romilly's Act, fee-simple estates were made liable for payments, and the origin was given to the priority of special debts over simple contract debts. In 1830, by the 1st of Will. IV., the law was amended, by allowing the creditor to bring his action against either the legatee or heir; while, at last, in 1833, by an Act of Will. IV.—Act 3, chap. 104—known as Lord Romilly's Act, all real estates, freehold or copyhold, were made assets to be administered in equity for the payment of debts; but in that Act, as in the Act of 1826, priority was secured for special debts in preference to simple contract creditors. And so the law remained, until, in 1861, Mr. Joshua Williams declared his opinion that the largest class of cases before the Court was the administration of the estates of deceased persons. In 1869 a most salutary and just measure was passed, through the instrumentality of an hon. Member after whom it was 715 called Hinde Palmer's Act, which abolished the distinction between special and simple contract debts. So the present state of the law was this—that all property was liable for the payment of the debts of the deceased; but real property was only available by bringing an action in the Court of Chancery. Lord Romilly made real property assets to be administered in equity; and he (Mr. Arthur O'Connor) proposed to carry out the principle of that Act by a simpler and less expensive machinery, thereby securing the rights of the creditor. To use the language of a leading Jurist of the day— If a man dies intestate and leaves an heir, an infant, or one who declines to concur in the realization of the estate; or if he makes a will without an express charge of debts, the action of Chancery is necessary to enable the estate to be administered for the payment of debts. Even if the will contains a charge of debts, it is often so doubtfully expressed that the executor is compelled to seek the protection of the Court, and often the estate is administered by the Court, and there is nothing to distribute among the creditors. That was also the statement of a gentleman whose authority on matters of the kind would be admitted by all acquainted with this branch of the Legal Profession, Mr. Barber, in a paper read before the Judicial Society, of which He was President, that— A very large proportion of the administrative actions brought in the Chancery Division were brought on behalf of creditors of deceased persons. Now, he (Mr. Arthur O'Connor) had consulted the judicial statistics, and he found that of 907 originating summonses taken out in the Chancery Division in 1881–2 no less than 284, or more than 25 per cent, were for the administration of estates of deceased persons. And how did this work? Mr. Barber said the almost invariable rule was that the Court, having made a decree, assumed direction and carried it through until the estate, or what was left of it, was distributed among the creditors who had to prove their debts, and the only reason for coming to the Court at all was to obtain a decree that the real estate was charged. The Court, having seizin of the matter, kept it, and the action ran its usual course; claims were vouched by numerous affidavits, the estate was sold by order of the Court, and when, at last, the chief clerk made 716 his certificate, the case could be held over for further consideration, and the creditors, after taxation and payment of costs, got a small dividend, or often none. The delay and expense to creditors was enormously out of proportion to the benefit they derived from the intervention of the Court; and it was that intervention of the Court he desired to make unnecessary. Nor was the loss to creditors the only evil. The Chambers of Judges in the Chancery Division were blocked by the mass of administrative business that could be done just as efficiently, more expeditiously, and with far less expense out of Court. Other suitors, whose delicate affairs required to be investigated by the chief clerk before justice could be done, and to whom delay might be of disastrous consequence, were kept waiting, and so this was a question that affected the whole country. The scheme he proposed, to make real estates assets in the bands of the personal representative of the deceased, had been adopted or supported by most of the legal authorities who had addressed themselves to the subject. Some years ago there was a Committee appointed, of which the right hon. and learned Gentleman the Judge Advocate General (Mr. Osborne Morgan) was Chairman. Mr. Barber gave important evidence before that Committee, which reported in favour of the scheme now proposed. The hon. and learned Member for Christchurch proposed a scheme, much more drastic, which amounted to an abolition of the Law of Primogeniture; but he (Mr. Arthur O'Connor) did not propose to go anything like so far as that. Most authorities had stated things were not ripe for that; but the measures, he had embodied in the Bill, following closely upon Lord Romilly's Act, were a definite and important stop. He was sorry the right hon. and learned Gentleman the Judge Advocate General was not present, for he would be inclined to support the proposal. The hon. and learned Member for Worcester (Mr. M'Intyre) was in favour of it, and so, he understood, was the hon. and learned Member for Plymouth (Mr. E. Clarke); he, therefore, regretted they were not at present. There could be only one class of persons at all disposed to oppose the Bill—those interested in the multiplication of administrative suits. He could understand why solicitors, who had an 717 extensive business in this line, should be anxious to prevent anything in favour of the great body of suitors, and which would help to clear some of the block in the Chancery business now existing. One thing he might mention in the shape of an alteration—that was, that the Bill should not apply to Scotland; by an oversight he had failed to insert a clause to the effect that the Act should not extend to Scotland. With regard to, any Amendments that might be suggested, he would be happy to meet hon. Members on one or two points. Some might think that the question of marshalling estates might be affected by the Bill; but any Amendments to provide that nothing should be construed as affecting the existing law in that respect, or in reference to existing priority, he would be very glad to accept. An Amendment which would provide for the de-vesting of the estate from the; executor, when he had discovered there was no ground for retaining the estate for payment of debts, he had no objection to agree to. The only Amendment which he had himself proposed was at the suggestion of the hon. and learned Member for Christchurch, and was the insertion of the words in the eleventh line, after "shall," "vest in and."

§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
said, from the clear explanation of the hon. Member (Mr. Arthur O'Connor), he saw the object of the Bill; and, so far as the hon. Member desired simply to avoid the necessity of legal proceedings in the administration of real estates, He was entirely in sympathy with that object; but he could not help thinking the Bill itself would go somewhat beyond that. He meant that real estates should only be charged in regard to debts; that nothing else should be interfered with; that was his object; but the Bill would go further, for it provided in what way estates should be administered, vesting them in the executor. Now, it might be construed as leaving to the executor the choice of the order of the debts. Therefore, he would suggest to the hon. Member that he should consent to report Progress, He (the Solicitor General) had no objection to the original object and purpose of the Bill; and meantime he would confer with the hon. Member as to Amendments to obviate any misconstruction.

§ MR. ARTHUR O'CONNOR
said, he would be happy to agree to that; and he thought, on the last occasion, he conveyed his intention to move to report Progress, to allow of Amendments being placed on the Paper.