HC Deb 07 July 1905 vol 148 cc1505-27

As amended (by the Standing Committee), further considered.

MR. SLACK (Hertforshire, St. Albans) moved, on Clause 2 (Appointment of public trustee to be trustee, executor, etc.), the following additional sub-section:—"Notice of any proposed appointment of the public trustee either as a new or additional trustee shall where practicable be given to all persons beneficially interested who are resident in the United Kingdom and whose addresses are known to the persons proposing to make the appointment or applying to the Court for that purpose or if such beneficiaries are infants to their guardians." He said he desired to take that opportunity of thanking the Solicitor-General for the most generous spirit in which he had met his views as embodied in the Amendments on the Paper.

SIR ROBERT REID (Dumfries Burghs)

seconded.

Amendment proposed to the Bill— In page 1, line 26, at end, to insert the words 'Notice of any proposed appointment of the public trustee either as a new on additional trustee shall be given to all persons beneficially interested who are resident in the United Kingdom and whose addresses are known to the persons proposing to made the appointment or applying to the Court for that purpose or if such beneficiaries are infants to their guardims.'"—(Mr. Slack.)

Question, proposed. "That those words be there inserted."

THE SOLICITOR-GENERAL (Sir EDWARD CARSON, Dublin University)

said he should advise the House to accept the Amendment as reasonable, and, in thanking the hon. Member opposite for what he had said, acknowledged the ready manner in which he had met the endeavour of the promoters to preserve and carry out the objects of the Bill.

SIR ALBERT ROLLIT (Islington, S.)

supported the Amendment, though he did not understand the need of the words "where practicable." He thought those general words largely negatived the value of the Amendment. He should like to hear concrete cases to which they might apply. He took it that those words had been accepted by his hon. friend as some compromise, and in the interest of peace, but he was not bound by such an indefinite compromise, and he should like to know why the words were said to be necessary.

SIR ROBERT REID

said that what was meant to be done by those words was to prevent the absence of them, in impracticable cases, from being a fatal objection. He regretted to hear that the hon. Member for South Islington was not a friend of peace.

SIR ALBERT ROLLIT

I repudiate that suggestion entirely. In other respects I support the Amendment, bat I do not want a hollow peace with, slanders of my hon. profession, which, as a whole and with comparatively few exceptions, is honourable.

SIR ROBERT REID

said nobody knew better than he did the honourable way in which the duties of the legal profession were discharged in this country, but he thought there were cases also, as in every profession, of black sheep, and it was the duty of Parliament to do all that could be done to safeguard the public in those exceptional cases. What was meant to be done by these words was to prevent the absence of them, in impracticable cases, from being a fatal objection. It was impossible to specify all the possible contingencies which might happen.

MR. SLACK

said his reason for accepting the words was that there might be a difficulty in ascertaining who were the persons beneficially interested.

MR. MOSS (Denbighshire, E.)

asked what was to be the test of "where practicable." The expression was vague and its introduction in the clause might give rise to a great deal of litigation.

SIR EDWARD CARSON

said he thought the words were necessary. If there was any technical difficulty in the way he would have the words recast.

MR. CHARLES McARTHUR (Liverpool, Exchange) moved to insert the following sub-section: "If in the execution of any trust any discretion is vested in the public trustee the Court may, upon the application of any person interested under the instrument creating the trust or otherwise, direct in what manner such discretion shall be exercised." He said the Amendment had not been framed in any hostility to the Bill. The object of these words was to protect beneficiaries against official supineness. Where there was discretion given under a trust to, for instance, carry on a business or sell it, the public trustee, it was thought, would naturally be disposed to take that course which involved the least responsibility. The Amendment provided for beneficiaries, who were not satisfied with the course which the public trustee proposed to take, going before the Court and asking that the public trustee should be directed what he was to do.

Amendment proposed to the Bill— In page 2, line 5, at the end, to insert the words, 'If in the execution of any trust any discretion is vested in the public trustee the Court may upon the application of any person interested under the instrument creating the trust or otherwise direct in what manner such discretion shall be exercised.'"—(Mr. Charles McArthur.)

Question proposed, "That those words be there inserted."

SIR EDWARD CARSON

hoped that the hon. Member would not press the Amendment. If it were carried it would render a great deal of litigation possible on small matters. The Bill already provided that, where discretion was vested by the settler or testator in any co-trustee of the public trustee the co-trustee should have the fullest power, altogether outside the opinion of the public trustee.

MR. BUTCHER (York)

expressed the opinion that the terms of the Amendment were too wide, because it enabled, a beneficiary in all matters connected with the disposal of an estate to go to Court and waste the trust funds in getting the opinion of the Court as to the discretion of the public trustee. There might be cases in which the public trustee ought not to exercise discretion, as, for instance, in the case of a testator making his will before this Act was passed and intending that a private trustee should deal with it. A business man might leave the carrying on of his business in the hands of trustees, and the exercise of their discretion in carrying on or disposing of the business would be a matter of vital moment to the trust estate. The testator would presume that the trustees or their successors would exercise their discretion properly, but under this Bill it might very well happen that the public trustee would be the sole trustee under that estate to exercise discretion.

SIR EDWARD CARSON

said in that case any beneficiary would be entitled, to bring the matter before the Court.

MR. BUTCHER

thought he was right in saying that where the discretion was left to the trustee by the testator the Court would not interfere with the exercise of that discretion unless it was being exercised wrongly; therefore, the public trustee, being left the sole trustee, unless controlled in some way would be entitled to exercise discretion in an absolutely unfettered way. In matters of importance he thought it would be only right that a beneficiary should, be able to go to Court and obtain control of the exercise of t discretion by the public trustee. Such a provision was in his opinion necessary to carry out the wishes of a testator.

SIR F. DIXON-HARTLAND (Middlesex, Uxbridge)

said it was no good saying that beneficiaries could apply to the Court to get certain things done. They all knew how short was the time taken in doing these things when they went into Court. He was strongly opposed to the matter being taken up by a public official. This question of the application of any person interested was a most important one, and he hoped the Amendment would be carried.

MR. CRIPPS (Lancashire, Stretford)

said that so far as the exercise of discretion was concerned the public trustee was not in the same position as a private trustee; he was not a relation or friend of the family concerned. A private trustee was. In the case which had been instanced, namely, that of carrying on a business or selling it, the public trustee would have no knowledge whatever of the business, and he was not the person who should determine a matter of that sort. The Solicitor-General had said that they could bring the matter before the Court, but he doubted whether they could do it in the sense suggested. Let them put aside the question of mala fides, and take the case where a testator had given discretion to carry on his business or not. Supposing the public trustee decided in a particular manner, whether to carry it on or not, the Court of Chancery would never interfere with the trustee under these conditions. They would say that the discretion had been vested in him, and that he had exercised it straightforwardly. Surely that was not a discretion which should be vested in the public trustee who had no special knowledge at all. He thought some Amendment in this direction should be introduced.

SIR JAMES JOICEY (Durham, Chester-le-Street)

said he considered there was a great difference between a private trustee and a public trustee in the matter of the exercise of discretion. A private trustee was selected by the testator because of his special knowledge of the question or business in which the testator was interested. Everybody knew that a member of the testator's family or the family solicitor was appointed trustee simply because of a knowledge he possessed of the testator's affairs, and, of course, if he had not had that special knowledge, or if he had not had a way of looking at things approved by the testator, he would not have been given that discretion by the testator. When they dealt with the public trustee, however, they found the case was quite different. A testator was not likely to give discretion in the disposal of his business to a public trustee who knew nothing about it. He did not want to stop the Bill, but looked with some suspicion upon the objection raised to protecting the testator's interests and the beneficiaries' interest by some such Amendment as this.

SIR ROBERT REID

said he thought his hon. friend was in error in regard to the effect of the Bill. It should be remembered that when this Bill was passed into law no person would be prevented from appointing a private trustee to exercise his discretion just as could be done at the present moment. As to the exercise of discretion by the public trustee, he agreed with his hon. friend that it was better that some one familiar with the business should exercise discretion, but it might be that such a person was not available. The clause proposed that the discretion should be constantly subject to revision by a Judge. The bona fide exercise of discretion would not be disturbed by that supervision, but this Amendment, if inserted, would encourage constant applications to the Court by cantankerous and litigious people. The Solicitor-General had already said that he would consider whether any other form of words could be adopted.

SIR ALBERT ROLLIT

said it was true that a testator might appoint a private trustee, but there were cases in which the public trustee might be or become the only trustee. Was he to be at liberty to exercise his discretion in matters with regard to which, as had been pointed out, the Court would not interfere under present conditions? He could not conceive anything more fatal to the interest I of a trust estate than that such discretion should be left in the hands of the public; trustee. What would happen in the case of a great commercial or shipping business? There might have to be applications to the Court perpetually. In the administration of such an estate, where the trustee was unfitted to exercise discretion, the parties must go to the Court, and make application to control and direct the trustee, whose judgment might be entirely wrong. He thought this Amendment was most called for and absolutely essential, and the alternative suggested by the Solictor-General of a general administration of the Estate would paralyse a commercial business and dissipate the Estate in legal costs. This would be the effect of this Bill unless properly amended, and made practical and workable, failing which, like the Judicial Trustees Act, it would fail in its purpose and become a dead letter.

MR. LAWSON WALTON (Leeds, S.)

said he trusted the hon. Member would not press the Amendment. According to the present policy of the Court of Chancery they would not interfere with the exercise of the discretion of a private trustee unless it could be shown that it had been exercised wrongfully. He quite accepted that view, but the Court would have to deal, after this Bill became law, with an attempt to control the discretion of an official trustee. It was quite obvious that, when a learned Judge was invited to deal with the discretion of an official trustee, he would apply different considerations to the discretion of a public trustee than he would apply to the discretion of a private trustee. The private trustee had been given discretion by the testator or settler in accordance with the views he held of the judgment of the person in whom he reposed confidence. It was clear that no Court would interfere with the discretion of that person, and it was for that reason that the present policy had grown up which induced the Court to leave that discretion entirely unfettered, unless it could be shown that the trustee was influenced by some interested motive.

MR. STUART WORTLEY (Sheffield, Hallam)

said it must be obvious that there was something to be provided for which was not in the Bill. There was an evil to be avoided at both ends. It might be that the refusal to act by a public trustee would be equal to the misguided action of a private trustee. On the other hand, they did not want a process of substituting the Court of Chancery for the public trustee. It had been suggested that application might be made to the Court that the public trustee, although acting bona fide, either by his proposed action or proposed refusal to act, was causing substantial detriment to the estate.

SIR EDWARD CARSON

said that he would draft an Amendment to the effect that the proposed provision should apply in cases where, through the action or inaction of the trustee, the estate had suffered detriment.

MR. CHARLES MCARTHUR

, on that promise, asked leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

MR. H. D. GREENE (Shrewsbury) moved to omit Sub-section 3. He did so with the object of moving later on a new clause to provide that the Lord Chancellor should, with the concurrence of the Treasury, make rules for carrying into effect the objects of the Act. He believed that the Bill had been drafted at a period antecedent to the Publication of Rules Act. The object of the Amendment was to bring into one clause which was set down later, all the occasions on which rules were to be made by the Lord Chancellor.

Amendment proposed to the Bill— In page 2, line 6, to leave out Subsection 3."—(Mr. H. D. Greene.)

Question proposed, "That the words proposed to be left out stand part of the Bill."

SIR EDWARD CARSON

said he believed that the hon. Gentleman was quite right, and he accepted the Amendment.

Question put, and negatived.

MR. CHARLES MCARTHUR moved the next Amendment standing in his name which was to the effect that the Act should not be made retrospective.

Amendment proposed to the Bill— In page 2, line 12, at the end, to add the; words, 'Provided that this section shall only apply to the will of a person dying, or to a settlement or other instrument executed after the passing of this Act.'"—(Mr. Charles McArthur.)

"Question proposed," That those words be there inserted."

SIR EDWARD CARSON

said that the Amendment was out of order, because they had already passed words that the Act should apply to wills or settlements made before the passing of the Act.

MR. SPEAKER

said that the Amendment was decidedly out of order.

Amendment proposed to the Bill— In page 2, line 13, to leave out the words, 'general order' and insert the word 'rule."—(Mr. H. D. Greene.)

Amendment agreed to.

SIR A. HELDER (Whitehaven)

said that the object of the Amendment standing in his name was that if an application was made to appoint a public trustee on a will or settlement it was desirable that that should be restricted so that the consent of persons interested should be obtained before the application was granted.

Amendment proposed to the Bill— In page 2, line 16, after the word 'administration,' to insert the words 'subject to the right of the next of kin or any person thereunto now by law entitled to a grant of administration.'"—(Sir Augustus Helder.)

Question proposed, "That those words be there inserted."

SIR EDWARD CARSON

said he had put down an Amendment for a subsequent stage that, "as between the public trustee and the widower, widow, or next of kin of the deceased, the widower, widow, or next of kin shall be preferred, unless for good cause shown to the contrary." That was giving the preference which the hon. Member desired.

Amendment, by leave, withdrawn.

Amendment proposed to the Bill— In page 2, line 22, at the end, to insert the word 'and that as between the public trustee and the widower, widow, or next of kin of the deceased, the widower, widow, or next of kin shall be preferred, unless for good cause shown to the contrary.'"—(Mr. Solicitor-General.)

Amendment agreed to.

MR. CHARLES MCARTHUR

said he wished to move to leave out of Clause 5 the words "fraud or negligence" for the purpose of substituting "act, or omission," as the ground on which liability would arise.

Amendment proposed to the Bill— In page 3, line 5, to leave out the words 'fraud or negligence' and insert the words 'act or omission'—(Mr. Charles McArthur)—instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Bill."

SIR EDWARD CARSON

said he wished to ask Mr. Speaker whether the Amendment did not go beyond the terms of the money Resolution, which provided such a sum as might be required to make good liabilities arising out of the default of the public trustee.

MR. SPEAKER

said that he must rule that "default" would cover "omission," but not "act."

MR. CHARLES MCARTHUR

said that he would substitute the words "omission or default" for those he originally moved. He argued that where people were asked to depend on a public official they should feel that if, through any improper act of the official, loss was caused, the Consolidated Fund would make it good. Unless they gave that complete satisfaction, they would really give no satisfaction at all.

SIR M. HICKS BEACH (Bristol, W.)

said he hoped that the question raised by the Amendment of the hon. Gentleman would be very carefully considered by the Solicitor-General before he agreed to it. He had grave doubts in his own mind as to the wisdom of the Bill at all. He did feel that although trusts and settlements were necessary in this country it was doubtful whether they were so much to the public advantage as to justify the State not merely in allowing them, but in setting up a public department to undertake their supervision. That principle, however, had been practically accepted, and he hoped His Majesty's Government would save the taxpayers from any loss except that which was incurred by some malfeasance on the part of the public trustee. If the measure was as largely availed of as its supporters seemed to anticipate, the burden imposed on the taxpayers might be very considerable if the possibility of imposing it extended beyond malfeasance. He therefore hoped that his right hon. and learned friend would resist this Amendment.

SIR EDWARD CARSON

said that the words introduced in the Bill were those with reference to which the money Resolution was passed. These words had been very carefully considered, and it would be impossible to accept the Amendment without throwing an undue burden upon the taxpayers, and at the same time creating rights as against the public trustee which did not exist now in the case of any private trustee. What would be an omission? If a public trustee took money out of one security and put it into another security, although he was perfectly honest in so doing, would that be an "omission" and would the Consolidated Fund be liable? So long as the public trustee acted without fraud or negligence nobody could ask for more. He ventured to think that if they tried to extend these words they would raise an indefinite obligation on the Consolidated Fund, which it would be absolutely impossible for the Government to consider

MR. SPEAKER

said that, having had a little more time to consider the matter, he ruled that the House had no power to go beyond what the Committee had decided. The real authority to decide whether the words of the clause came within the phrase used in the money Resolution was the Committee, and the House had no power to extend the liability which the Committee had imposed. On that ground, he therefore ruled that the Amendment of the hon. Member was out of order.

MR. BUTCHER

asked whether fraud or negligence meant a breach of trust. He ventured to think that a public trustee ought to be as much responsible for a breach of trust as a private trustee. He would move to omit the words "fraud or negligence" in order to insert the words "breach of trust."

MR. SPEAKER

I think the Amendment of the hon. Gentleman comes within the ruling I have just given. I cannot say whether a breach of trust is greater or less than fraud or negligence.

MR. BUTCHER

asked whether fraud or negligence included breach of trust.

SIR EDWARD CARSON

said he was only a poor common-law lawyer; but the words "fraud and negligence" would be better understood than "breach of trust."

MR. BUTCHER

said that in line 8 he wished to move an Amendment to leave out the words "Act or" for the purpose of getting an Answer to the Question he had already asked. It should be known whether the public trustee was or was not responsible for a breach of trust; and whether it would be possible to make a charge on the Treasury.

MR. CRIPPS

said the matter mentioned was very important. He did not ask for any special words at the moment. When the Bill was introduced, it was understood that a poor man could not suffer through the public trustee, and that the Consolidated Fund would provide for anything in the nature of fraud. A breach of trust had nothing to do with fraud or negligence, and the question was what protection was to be given in the case of the public trustee.

Amendment proposed to the Bill— In page 3, line 8, to leave out the words 'act or.'

Question proposed, "That the words 'act of' stand part or the Bill."

SIR ALBERT ROLLIT

said that under the Bill, if the clause were not amended, the Cestui que trust might be placed in a worse position than the ordinary beneficiary. The trustee might be accused of indiscretion, but the remedy would be at the cost of the estate. The cases in which there would be a remedy would, however, be limited to fraud or negligence. The hon. Member for York pressed the Solicitor-General to state whether the public trustee would be as liable as an ordinary trustee for breaches of trust. He would put a case which would not be covered by the words of the Bill. An investment, not in a trust security, might be made neither by fraud nor negligence, but might possibly lead to the loss of the estate, in which case the beneficiary would suffer. He invited a special Answer to his hon. friend's Question. Was there an indemnity on the part of the State in connection with the public trustee for breaches of trust? If not, the last state of the beneficiary might be worse than the first; he might be out of the frying-pan into the fire. And if the State had to pay the piper, the cost to the taxpayers of all this officialism, red tape, buildings, losses, etc., might be enormous, for no proportionate benefit. The Bill was a clumsy and badly drawn measure for its purpose, for to the principle of the proper protection of trust funds by a responsible custodian, whether public or private, he had no objection whatever, but the contrary.

SIR JAMES JOICEY

said that it appeared quite evident when the Bill was Introduced that the public trustee would take on himself all the responsibilities of an ordinary trustee. He was, however, rather suspicious at the refusal of the Government to assent to the words "breach of trust." He certainly thought the public trustee would be placed under the same conditions as an ordinary trustee; and the Solicitor-General should make the matter clear now. It seemed to him extraordinary that the Government should protect the public trustee from ordinary responsibility.

SIR WILLIAM TOMLINSON (Preston)

said it was an extraordinary provision that the Courts should be given the power proposed.

SIR F. DIXON-HARTLAND

asked how the public would be benefited by the Bill if they received no security that the estate, when it came to the public trustee, would be properly administered. At the present time if a trustee got rid of the trust property he was liable to make it good, and had to pay it back, bat as the Bill now stood if the public trustee did anything wrong, except they could prove mala fides, the public were worse off than before because he was not liable.

MR. GEORGE FABER (York)

urged the House to be extremely careful to see that the remedy was not worse than the disease. The Lord Chancellor would have a free hand in the making of the rules, and upon that would depend the efficacy or otherwise of the enactment. The bait held out from the beginning was that they would get away from the fraudulent solicitor to some person of security, but apparently the condition of things would not be any better under this clause but rather worse, because under the present condition of the law a trustee was liable for breach of trust, but under this clause they would have a public trustee comfortably ensconsed behind a fat salary whom they would not be able to make responsible unless he was guilty of fraud or negligence. On the other hand, directly it was sought to make the public trustee liable for all breaches of trust the Treasury came forward and said they were putting a larger burden on the Consolidated Fund than they were entitled to do. He urged the Committee, in their desire to get out of the clutches of rogues, not to fall into the hands of fools; because, it was not unlikely that the person who would be appointed public trustee would not be a trained man of business, and would thus be incapable of discharging satisfactorily the great responsibilities of his position. Let them not, in avoiding Scylla, fall into Charybdis.

SIR EDWARD CARSON

said it was wonderful how hon. Members imagined they were in a state of perfection as to the liability of trustees. Perhaps the most amusing part of the whole debate was the way in which they had been saying there was to be no security at all. They were only to have the Consolidated Fund of the United Kingdom to back up the public trustee whenever there was a case of fraud or negligence. Would his hon. friend tell him of any single case ordinarily arising in which money was lost which would not be covered by the words of the Bill? He could conceive no case among what might be called the ordinary cases which happened day by day which was not covered by the words "fraud and negligence." His hon. friend put the case of a trustee who had erred through ignorance, but who had acted throughout in a perfectly honest manner. His hon. friend, he thought, when he put the case must have forgotten the Act of Parliament passed in 1896 which provided, among other things, that where it appeared in a transaction which was alleged to be a breach of trust that the trustee had acted honestly and reasonably he might be excused that breach of trust. If the words proposed were put in here the public trustee would not have the benefit of the enactment covering the case when a trustee acted absolutely honestly. If you protected people against fraud and negligence you protected them against everything that was essential in the practical working of the Trustees Act. He was sure there was strong feeling in the country that this enactment was very much wanted, and he hoped the House would not be led away by any matters not of practical importance from the important issues before them in the short time at their disposal.

MR. BUTCHER

said he had no desire to waste time, and, although he did not regard the explanation as satisfactory, he would ask leave to withdraw the Amendment.

Amendment proposed to the Bill— In page 3, line 12, to leave out Subsection (2).'"—(Mr. H. D. Greene.)

Amendment negatived.

MR. CHARLES MCARTHUR

said the object of the Amendment he had now to propose was to safeguard the interest of the life tenant. He submitted that where the estate consisted of money in securities and it was simply a question of remitting the income to the beneficiary no charge should be made by the public trustee. He begged to move.

Amendment proposed to the Bill— In page 3, line 21, at the end, to insert the words 'Provided that no fees shall be charged in respect of the income arising from the investments of any trust fund or trust estate which can be remitted under written directions from the person or company or corporation liable to pay the same direct to the usufructuary or to any person or persons or bank or to any other destination to or which he is authorised to direct the same to be paid, remitted, or Bent.'"—(Mr. Charles McArthur.)

Question proposed, "That those words be there inserted."

SIR EDWARD CARSON

said he hoped the Amendment would not be pressed. The fees must be collected by rule of the Treasury and no exceptions could be made. If they once began to make exceptions it would be impossible to carry out the object of the Bill. If the Bill was to work it would be necessary to make the fees as small as possible.

MR. GIBSON BOWLES (Lynn Regis)

said he did not quite follow the purpose of this Amendment, but the argument of the Solicitor-General was that the whole thing would be provided for by rules made by the Lord Chancellor. One of his great objections to this Bill was the large powers it gave to the Lord Chancellor, who was set up as a sort of autocrat and endowed with powers almost equalling those of a Secretary of State. A large proportion of those things which it was now proposed to leave to the Lord Chancellor to settle should, in his opinion, be settled in the Bill itself.

Question put, and negatived.

SIR WILLIAM TOMLINSON

said he moved the Amendment standing in his name because he thought in many cases in small trust estates there would have to be a preliminary investigation on the part of the public trustee to see whether the trust was such a trust as he could accept. If it was not such a trust, then, in his opinion, the public trustee should be entitled to a fee for the preliminary investigation.

Amendment proposed to the Bill— In page 3, line 24, after the first word 'paid' to insert the words 'including if required a preliminary fee for investigating the particulars of the trust or executorship proposed to be vested in the public trustee.'"—(Sir William Tomlinson.)

Question proposed, "That those words be there inserted."

SIR EDWARD CARSON

said the rules under the Bill would lay down what the fees were which were to be charged and they would also point out what the duties of the trustee were. He hoped the Amendment would not be proceeded with.

Question put, and negatived.

SIR EDWARD CARSON

said that the next Amendment was for the purpose of preventing any profit being made from the revenue out of the fees beyond what might be necessary to give the taxpayers indemnity against any loss.

Amendment proposed to the Bill— In page 3, line 29, at the end, to insert the words '(4) The fees under this section shall be arranged from time to time so as to produce an annual amount sufficient to discharge the salaries and other expenses incidental to the working of this Act (including such sum as the Treasury may from time to time determine to be required to insure the Consolidated Fund against loss under this Act), and no more.'"—(Mr. Solicitor-General.)

Question proposed, "That those words be there inserted."

SIR JAMES JOICEY

objected to the wording of the Amendment as vague. Supposing there were certain estates in the hands of the public trustee and there was a great loss in one of them owing to his fraud and negligence. Those who had other estates to put into his hands had to pay for that loss, although they had in no way contributed to it. He confessed he did not like giving all that power to the Lord Chancellor. The Lord Chancellor had immense power as it was, and it appeared to him that this would be a sort of second death duty for everybody whose estate came into the public trustee's hands.

MR. PERKS (Lincolnshire, Louth)

said he would like to know whether these new officials would be subject to any guarantee. Would they be guaranteed in any way up to a certain amount, the costs of the guarantees to be paid out of the Consolidated Fund? If not, he would suggest that that was a point which ought to be considered. He also drew attention to another point. He had known many cases where breaches of trust were quite distinct from any fraud or negligence, and he suggested that the Amendment would not enable the beneficiaries to get charged against that account anything excepting the losses arising from fraud and negligence, and therefore the beneficiaries were not protected against those breaches of trust which did not come under the phrase "fraud or negligence." Moreover the public trustee now to be appointed would have a multitude of small estates to deal with, and therefore the protection of the beneficiary would be a great deal less than it was at the present moment.

MR. STUART WORTLEY

said that if the fees were to be applied to meet losses due to the negligence of the public trustee, the beneficiaries would be made to pay their own insurance, and the Treasury would lose all interest in looking after the property.

SIR ROBERT REID

suggested the adoption of the procedure under the Registration of Titles Act in Australia.

MR. GEORGE FABER

pointed out that there were both cheap and safe ways of guarding the estates of testators, but he considered this neither safe nor economical. If the public trustee invested a large sum unwisely, the result might be a heavy loss. How was it to be made good? Under the procedure set up by this Amendment other estates would have to make the loss good. Why should B's estate pay for the loss on A's estate consequent on a bad investment by the public trustee? To his mind it was a case of "Thank you for nothing." His right hon. friend said "Do not employ the public trustee," but could the Solicitor-General assure him that when he was dead his estate might not by any possibility fall into the grasp of the gentleman appointed under this Bill?

SIR EDWARD CARSON

It would not, if you made proper provision for the appointment of other trustees.

MR. GEORGE FABER

said that in his opinion this Amendment involved putting on the estates of dead men an expense both unmerited and uncalled for.

MR. SOARES (Devonshire, Barnstaple)

held that as the public trustee was to be appointed by the Lord Chancellor with the concurrence of the Treasury, the latter body ought to be held responsible for any laches on the part of the trustee; losses caused by either fraud or negligence on his part should be recouped out of the Consolidated Fund. The public trustee would be paid out of the fees levied on the estate administered.

SIR ALBERT ROLLIT

considered the suggestion a very reasonable one. He held that the proposal of the Government would make the administration of estates a very costly proceeding, seeing that beneficiaries would have to pay official fees not only for their own protection, but also for the protection of another estate in respect of which the public trustee might be liable. The principle of the Bill was not in question to-day, and their object was so to amend the Bill as to make it just and. acceptable and so workable, and not like the Judicial Trustees Act, a nullity.

SIR F. DIXON-HARTLAND

said he did not see why the public trustee, who would be highly paid, should not pay his own fees for insurance.

COLONEL PILKINGTON

though this Amendment was a trick. He had never heard of such a monstrous suggestion, and he suggested that it was due to the interference of the Treasury. He could not think such a proposal could have emanated from the Solicitor-General.

SIR EDWARD CARSON

It is not the Treasury who is responsible for it.

COLONEL PILKINGTON (Lancashire, Newton)

thought it was the first time a legal mind had ever framed such an extraordinary suggestion, and looking at it as a business man and not as a lawyer he honestly felt it would be much better to withdraw it.

MR. EDMUND FABER (Hampshire, Andover)

desired to know where the money was to come from if the public trustee was guilty of incompetence. In 99 cases out of 100 an estate suffered from the incompetence of the trustee and not from his fraud, and he ought to be made responsible if guilty of incompetence.

Question put.

Sir HOWARD VINCENT and Mr. CROOKS

were appointed Tellers for the Ayes, but no Member being willing to act as Teller for the Noes Mr. SPEAKER declared the Ayes had it.

Amendment proposed to the Bill— In page 3, to leave out Clause 7."—(Mr. Solicitor-General.)

Amendment agreed to.

Drafting Amendments agreed to.

SIR EDWARD CARSON moved in page 4, line 12, to add the words "but he shall not decline to accept any trust on the ground only of the small value of the trust property."

Amendment proposed to the Bill— In page 4, line 12, at the end, to insert tie words 'but he shall not decline to accept any trust on the ground only of the small value of the trust property.'"—(Mr. Solicitor-General.)

Question proposed, "That those words be there inserted."

SIR JOSEPH DIMSDALE (London)

said the public trustee should be obliged to accept any trust that was brought before him, whether it was exactly what he desired or not. He did not think he should be allowed to refuse to act because a trust was not exactly to his liking.

MR. GIBSON BOWLES

said the clause as it originally stood in this Bill gave the public trustee almost unlimited discretion to accept, or refuse to accept, any trust. The Amendment limited that discretion, but the limitation was not sufficient. For instance, the public trustee might decline to fulfil his duty because the property, although large in value, might be a troublesome one. If they were going to set up a great public department with an expensive officer for the purpose of taking over trust property, there ought to be no power to decline to undertake the duty for which the officer was established.

MR. GEORGE FABER

entirely agreed with his hon. friend that the Amendment did not go far enough. He saw no logic in setting up a great department of State to which anybody was entitled to go unless the department was obliged to accept the trust.

SIR JAMES JOICEY

urged that the public trustee should be compelled to accept any trust that was brought before him, and should not have the power to decline because, for instance, some investment was involved which might cause him considerable trouble.

MR. MARTIN (Worcestershire, Droitwich)

held there should be no power to decline any trust.

SIR EDWARD CARSON

said that would be impossible in view of the words already introduced. It would make the whole thing nonsense.

SIR ALBERT ROLLIT

said this Amendment modified a most objectionable provision in the Bill to which, however, they had already assented. The Amendment had therefore better be made as reducing the evil.

SIR AUGUSTUS HELDER

suggested that the words "or the difficulty of carrying out the trust" should be added to the Amendment.

MR. SPEAKER

said those words could be added after the Amendment had been carried.

SIR EDWARD CARSON

said cases must arise in which it would be impossible for the public trustee to act. Take, for instance, the Rhodes will. He could not administer such an estate as that. It was only to guard against cases of that kind that the clause had been inserted.

Question put.

The House divided:—Ayes, 180; Noes, 32. (Division List No. 253.)

AYES.
Abraham, William (Cork, N. E) Burt, Thomas Douglas, Chas. M. (Lanark)
Acland-Hood, Capt. Sir Alex F. Butcher, John George Duffy, William J.
Ainsworth, John Stirling Caldwell, James Duncan, J, Hastings
Allen, Charles P. Cameron, Robert Elibank, Master of
Ambrose, Robert Campbell, Rt Hn J A (Glasgow) Esmonde, Sir Thomas
Anson, Sir William Reynell Campbell, John (Armagh, S.) Evans, Samuel T. (Glamorgan)
Atherley-Jones, L. Carson, Rt. Hn. Sir Edw. H. Fenwick, Charles
Atkinson, Rt. Hon. John Cavendish, V. C. W. (Derbysh. Ferguson, R. C. Munro (Leith)
Austin, Sir John Cheetham, John Frederick Fison, Frederick William
Baker, Joseph Allen Coddington, Sir William FitzGerald, Sir Robert Penrose
Balcarres, Lord Condon, Thomas Joseph Flavin, Michael Joseph
Banbury, Sir Frederick George Corbett, A. Cameron (Glasgow) Flynn, James Christopher
Banner, John S. Harmood- Corbett, T. L. (Down, North) Foster, P. S. (Warwick, S. W.)
Barran, Rowland Hirst Craig, Robert Hunter (Lanark Foster, Sir Walter (Derby Co.)
Barry, E. (Cork, S.) Cremer, William Randal Fowler, Rt. Hn. Sir Henry
Benn, John Williams Crombie, John William Gordon, Hn. J. E. (Elgin & Nairn
Bignold, Sir Arthur Cullinan, J. Grant, Corrie
Bigwood, James Dalrymple, Sir Charles Gray, Ernest (West Ham)
Blundell, Colonel Henry Delany, William Greene, Sir E W (B'ry S Edm'nds
Boland, John Devlin, Chas. Ramsay (Galway Greene, Henry D. (Shrewsbury
Bond, Edward Dickson, Charles Scott Hall, Edward Marshall
Bowles, T. Gibson (King's Lynn Donelan, Captain A. Hammond, John
Bright, Allan Heywood Doogan, P. C. Hatch, Ernest Frederick Geo.
Brunner, Sir John Tomlinson Dorington, Rt. Hn. Sir John E. Hayter, Rt. Hn. Sir Arthur D.
Burke, E. Haviland Douglas, Rt. Hn. A. Akers- Hemphill, Rt. Hn. Charles H.
Hermon-Hodge, Sir Robert T. Morton, Arthur H. Aylmer Shaw-Stewart, Sir H (Renfrew)
Higham, John Sharp Murphy, John Shipman, Dr. John G.
Hill, Henry Staveley Murray, Col. Wyndham (Bath) Sloan, Thomas Henry
Hogg, Lindsay Nolan, Col. John P. (Galway, N. Smith, Samuel (Flint)
Hope, John Deans (Fife, West) Nolan, Joseph (Louth, South) Soares, Ernest J.
Howard, J. (Kent, Faversham) Norton, Capt Cecil William Spencer. Rt Hn C R (Northants)
Howard, J. (Midd., Tottenham Nussey, Thomas Willans Stanley, Edward Jas (Somerset
Jacoby, James Alfred O'Brien, K. (Tipperary, Mid) Stirling-Maxwell, Sir John M
Jebb, Sir Richard Claverhouse O'Brien, Patrick (Kilkenny) Strachey, Sir Edward
Jeffreys, Rt. Hn. Arthur Fred O'Connor, James (Wicklow, W Sullivan, Donal
Joicey, Sir James O'Dowd, John Taylor, Austin (East Toxteth)
Jones David B. (Swansea) O'Kelly, Conor (Mayo, N.) Thomas, David Alfred (Merthyr
Jones, Leif (Appleby) O'Shaughnessy, P. J. Thorburn, Sir Walter
Jones, William (Carnarvonshire Parrott, William Tomlinson, Sir Wm. Edw. M.
Joyce, Michael Partington, Oswald Toulmin, George
Kearley, Hudson E. Pease, J. A. (Saffron Walden) Tufnell, Lieut.-Col. Edward
Kennedy, Vincent P. (Cavan, W Perks, Robert William Tuke, Sir John Batty
Kilbride, Denis Philipps, John Wynford Ure, Alexander
Lamont, Norman Power, Patrick Joseph Valentia, Viscount
Lawrence, Wm. F. (Liverpool) Pryce-Jones, Lt.-Col. Edward Walker, Col. William Hall
Lawson, Sir Wilfrid (Cornwall) Rasch, Sir Frederic Carne Wallace, Robert
Layland-Barratt, Francis Reddy, M. Walton, John Lawson (Leeds, S
Leese, Sir J. F. (Accrington) Redmond, John E. (Waterford Warner, Thomas Courtenay T.
Leng, Sir John Reid, James (Greenock) Wason, Eugene (Clackmannan)
Leveson-Gower, Frederick N. S. Reid, Sir R. Threshie (Dumfries Whiteley, H. (Ashton und Lyne
Lucas, Reginald J. (Portsm'th Renshaw, Sir Charles Bine Wilson, Chas. Henry (Hull, W.
Lundon, W. Rickett, J Compton Wilson, Henry J. (York. W. R.
Lyell, Charles Henry Roberts, Samuel (Sheffield) Wilson, John (Durham, Mid.).
Macdona, John Cumming Robinson, Brooke Wilson, J W (Worcestersh. N.)
MacNeill, John Gordon Swift Rollit, Sir Albert Kaye Wortley, Rt. Hn. C. B. Stuart
MacVeagh, Jeremiah Ropner, Colonel Sir Robert Wrightson, Sir Thomas
M'Artnur, Chas. (Liverpool) Rutherford, John (Lancashire)
M'Kean, John Samuel, Herb. L. (Cleveland) TELLERS FOR THE AYES—Sir Howard Vincent and Mr. Crooks.
Meysey-Thompson, Sir H. M. Samuel, S. M. (Whitechapel)
Mitchell, Edw. (Fermanagh, N. Seely, Maj J E B (Isle of Wight)
Mooney, John J. Shaw, Chas. Edw. (Stafford)
Morrell, George Herbert Shaw, Thomas (Hawick B.)
NOES.
Agg-Gardner, James Tynte Holder, Augustus Rankin, Sir James
Bain, Colonel James Robert Hudson, George Bickersteth Remnant, James Farquharson
Baldwin, Alfred Hunt, Rowland Renwick, George
Bolton, Thomas Dolling Lambert, George Spear, John Ward
Dickinson, Robert Edmond Lonsdale, John Brownlee Tritton, Charles Ernest
Duke, Henry Edward Mappin, Sir Frederick Thorpe Tuff, Charles
Eve, Harry Trelawney Martin, Richard Biddulph White, Luke (York, E. R.)
Faber, Edmund B. (Hants, W. Maxwell, Rt Hn Sir H E (Wigt'n Whiteley, George (York, W. R.)
Faber, George Denison (York Pilkington, Colonel Richard
Finch, Rt. Hon. George H. Plummer, Sir Walter R. TELLERS FOR THE NOES—Sir Frederick Dixon-Hartland and Sir Joseph Dimsdale.
Griffith, Ellis J. Powell, Sir Francis Sharp
Groves, James Grimble Purvis, Robert

And, it being after half-past Five of clock, Further Consideration of the Bill, as amended, stood adjourned.

Bill, as amended, to be further considered upon Monday next.