THELLUSSON'S ESTATE. (Hansard, 22 July 1833)

§ The Earl of Harrowby
opposed the Bill. The testator's will had been objected to, on the ground, that it carried the principle of entail to a greater extent than was ever before known. The will was, however, maintained; but on public grounds the Legislature passed an Act, declaring, that such a disposition of property should never be allowed again. That Act had, he thought put an end to all further interference in this case; but they were now called upon to interfere with it again in defiance of a decision in equity, and in defiance of an Act by which the disposition of the testator's property was recognized. It was alleged, that the trustees had mismanaged the funds; but, if that were so, they might be checked by the intervention of the Court of Chancery. Unless their Lordships were prepared to say, that they would interfere in all cases of hardship, in respect to the disposition of property by will, they could not interfere in this instance. It was said, that this proceeding could not be drawn into a precedent. That was a complete fallacy. There were many cases of equal hardship to which this precedent might be made to apply; for example, to a case where a single generation was shut out from the enjoyment of property. As long as individuals were allowed by law to dispose of their estates as they pleased, it was pregnant with very great danger to the whole property of the country that such a precedent should be established as would be the result of passing this Bill. It was 1044 brought in, too, by an infraction of those standing orders which were intended for the protection of private property. Under all these circumstances, he felt it to be his duty to give his negative to the Bill.

§ The Earl of Eldon
said, it was impossible to assert that the testator had no right to make this will. When the case was before Chancery, he believed, there was not a man in the Court who did not wish, if possible, to set the will aside; but it was felt imperatively necessary to support the established doctrines respecting the disposition of property according to law. The course which was then taken was the right course. To suppose, that no case of this nature existed except that which referred to the Thellusson family, was a mistake. Wills of a similar nature, and which were now in operation, had been drawn up before the passing of Lord Loughborough's Act. He begged to ask, how were their Lordships to proceed, if, after passing the present Bill, the wills of those testators to whom he was now alluding should be brought before them in the next Session of Parliament? Could they do otherwise than disturb those wills, which were, perhaps, equally hard, but which were made in accordance with the law of the country, after they had passed the present Bill. The security of property devised by testament, the wills of testators, having been held inviolable for ages, formed one of the most important parts of the legal system of this country. The present measure would invade that security and that inviolability, and, therefore, he thought the attempt ought to be repelled.

§ Lord Wharncliffe
said, there was, in his opinion, great irregularity in suspending the standing orders, and pressing forward a Bill of this nature, against which there were so many and such serious objections. The expense of the management of the whole trust was very great, but there was no evidence before the Committee upon which a charge could be founded against the trustees for having abused their powers in the management of the estate. No greater expense had been incurred than was authorized by the Court of Chancery. He defied the noble Lord on the Woolsack, or any other noble Lord, to say, that the trustees had done any thing with regard to the management of the estate without the consent of the Court of Chancery having been previously obtained. In his opinion, the Bill, instead 1045 of diminishing, would have the effect of increasing and perpetuating the expenses of managing the estate. It was under these circumstances he refused to give the Bill his consent. It was establishing a precedent which, he believed, their Lord-ships and the country would have cause to rue. It would hold forth the incitement for application after application on similar grounds, and he saw no probable result but detriment or ruin to private property. He would divide against the third reading, if any other noble Lord would divide with him.

The Lord Chancellor
denied that the Bill had been introduced, as had been said, altogether from motives of compassion. The motive of compassion would not be sufficient to direct the course of legislation on private affairs from the ordinary channel. But the present was a question of justice, and intended to allow the provisions of the testator's will to take the effect he contemplated, and not to benefit parties he never meant to benefit. He (the Lord Chancellor) had not the slightest interest in the question other than forwarding this object. He was acquainted with no member of the Thellusson family personally, and his only motive in supporting the measure was, the conviction he had come to of the justice of the case, in the course of the fulfilment of his official duties in the Court of Chancery. His noble friend who had preceded him on the woolsack, had arrived at a similar conclusion. He did not admit the validity of the objection on the score of the measure being drawn into a precedent. It stood on its own peculiar grounds, and was not likely to be drawn into a precedent; but whenever any case could be shown to have, as it were, an identity with the present, then the extension of the law to it might reasonably be called for. Such cases, however, were not of likely occurrence. The jurisdiction of the Court of Chancery extended to intakings as well as outlays; and in recommending the present Bill, he believed he was furthering the object of the testator, which was accumulation.