said, that two Bills of very great public importance, relating to the devising and bequeathing of real and personal property by will, lay upon their Lordships' Table—"The Execution of Wills' Bill, and the Executors Bill." They had been sent up from the Commons, and had been read a first time, and he hoped there would be no objection to his then moving the second reading, with a view to send them to a Committee up stairs. One object of the first Bill, the Execution of Wills' Bill, was to throw the protection of the law around the dying bed of those who had personal property to dispose of, and to prevent those undue practices which were sometimes resorted to by interested persons who wished to obtain the possession of that which did not belong to them, and which otherwise would pass to those who were better entitled to receive it. By the law, as it at present stood, a will devising Real Property must be signed by three witnesses, while a will devising Personal Property required no witness whatever. Now, it was proposed, that in all cases, whether with reference to the devise of real or personal property, there should be two attesting witnesses. It was thought that the protection of the law in that respect should be extended to the latter as well as to the former description of property, in order to prevent undue influence being exerted, in cases where personal property was to be devised. At present an individual might dispose of money to the amount of millions by a memorandum without witnesses. He had only to say, "I, John Nokes, bequeath so and so;" and it became a legal instrument. Such a state of things as this certainly laid parties open to the operation of interested and undue influence. This absence of all form had led to so many instances of undue influence and fraud, 888 that Lord Hardwick, Lord Loughborough, and many other Chancellors, had expressed a strong desire that the provisions of the statute of frauds relative to real property should likewise extend to personal property. This was one of the first improvements recommended by the Commissioners who were appointed to inquire into the laws relating to real property, and the object of the measure now before their Lordships was, to render the execution of wills, no matter to what description of property they related, the same in all cases. According to the law as it stood at present, real property could not pass under a will unless it was attested by three witnesses, but an alteration was intended to be made in this respect. Two witnesses, it was thought, were quite sufficient to insure all that was necessary by way of security, and, therefore, after the passing of this Bill, real property would pass under a will attested by two witnesses, while personal property would not pass under a will which was not equally attested by two witnesses. At present it was by no means necessary that the subscription of the names of the witnesses should take place at the same period, although ordinarily the attestation by the witnesses took place "in the presence of each other." This Bill was meant to render that which was now the ordinary practice imperative, and such a rule he felt satisfied would be conducive of very great advantage, and prevent much useless and expensive litigation. These were the most important provisions of the Bill, but there were others wholly unimportant, but which might be more properly made the subject of investigation in the Committee. There was one point, however, which he wished particularly to notice. As the law now stood, if a person made a will, and afterwards contracted a marriage, and had a child by that marriage, it operated as a revocation of the will, on the ground that the will did not contain the presumed intentions of the testator, under the altered circumstances of the case, the law contemplating that he made his will under the supposition that he would die a bachelor. This was a matter which required consideration, and he had a doubt whether there was not another case that ought to be provided for. A friend of his, well known to many of their Lordships, made his will after his marriage, not being aware that his wife 889 was enceinte, and died, bequeathing a considerable landed estate to his wife and sister. His widow was brought to bed some months after his death, and, consequently, that child, a posthumous son, was left wholly unprovided for. But the individual upon whom the property devolved, in the noblest manner gave up the estate to the boy. It was certainly not every day that such acts of extraordinary generosity were witnessed; the individual, however, in this case, did so voluntarily, and as if it were entirely a matter of course. The law, however, should not be framed on the calculation of the existence of such generosity, for, unfortunately, all men could not afford to practise—nor would all men think of practising it. There were only two other matters contained in this Bill to which he should think it necessary to call the attention of their Lordships; the first was, regarding the execution of powers. This Bill proposed to enact that appointments by will should be executed like other wills, and be valid, although other solemnities required were not observed. This was a part of the measure with respect to which he entertained considerable doubt; for it appeared that it was rather strange to say there should be a total disregard of the law as to other solemnities required to be observed in the execution of powers of appointment. This alteration was founded upon a recommendation contained also in the Report of the Commissioners, but in which he must say he did not entirely concur. The last point to which he should refer regarded alterations of wills. The Clause enacted, that no alteration in a will should have any effect, unless executed in the same manner as the will, and the names of the witnesses were written by them on the margin. At present this might be done by the same witnesses, or any other, and the clause was not exactly clear on this point; it was not, however, a very material one, and might easily be made sufficiently clear in the Committee. The noble and learned Lord, in conclusion, moved, that the Bill be now read a second time.
§ Lord Abinger
thought that no alteration in laws relating to the transmission of property should take place without full and mature deliberation. It was not at all improbable that it would be expedient to adopt some of the suggestions contained in this measure; but then there were others 890 to which strong objection might be taken, and for his own part he should prefer adhering to the Statute of Frauds, of Charles the Second, which rendered three witnesses to a will passing Real Property necessary, than adopting the proposition that two, or any other number, should be sufficient. The present practice of requiring the attention of three witnesses in all such cases had all the advantages of long-established usage in its favour, and for his part he should be unwilling to alter the law as it stood in this respect, unless it were shown that it was disadvantageous or inconvenient. Without some evidence of this sort any alteration would be inexpedient; and, as regarded personal property, he could not help thinking that a will, or testamentary paper in the hand-writing of a deceased person, was quite as indicative of his intention and wishes as if it had the signatures of two or any other number of witnesses to it.
said, that an exception in favour of such documents would be made, and he proposed to introduce an Amendment to that effect, into the Bill.
§ Lord Abinger
said, at all events, it was necessary that their Lordships should deliberate well before they passed a measure of this importance. Even his noble and learned Friend himself had doubts respecting some of its enactments, and that being the case, he did not think they would be acting rightly if they passed the Bill through the present stage without ample and deliberate discussion.
begged to assure their Lordships that he was most anxious the measure should receive the fullest deliberation possible, and for that purpose, if their Lordships would allow the second reading to pass now, he would, instead of going into a Committee of the whole House, at once move that it be referred to a Select Committee up stairs, in order that every provision contained in it might be thoroughly and satisfactorily investigated.
The Earl of Malmesbury
thought, that a Motion of so much importance ought not to have been brought forward without notice, and, for himself, he must say, that there were provisions in this Bill of which he did not approve.
§ Lord Denman
fully agreed that no alteration of the law on this subject should take place without the fullest deliberation. He certainly was favourable to the prin- 891 ciple of the Bill, but he, at the same time thought that discussion on the subject was necessary, if it were only for the purpose of making it known to the whole of the King's subjects, in order that they might understand what the alterations were which it went to effect. This was one of those measures which had proceeded from the recommendation of the Commissioners appointed to inquire into the state of the law relating to Real Property. It had been in the House of Commons for more than one Session, and now came up from that House without any opposition having been offered to its progress; so that it was important their Lordships should give it no unnecessary delay. His noble and learned Friend (Lord Abinger) had expressed his readiness to adhere to the Statute of Frauds rather than adopt the change proposed to be made by this Bill; but did his noble and learned Friend forget the ruinous litigation which complying with the provisions of the Statute of Frauds gave rise to, and the little comparative security which it afforded to property? Now, surely, the attestation of two persons was quite a sufficient guarantee in cases of wills. He had a strong feeling in favour of the Bill, and he begged to press it on their Lordships that delay should be avoided. He thought therefore that the better way, perhaps, would be to adopt the course suggested by his noble and learned Friend (Lord Brougham), and refer the Bill to a Committee up stairs for full investigation.
The Earl of Malmesbury
said, he could assure their Lordships that it was not his desire to give any delay whatever to the Bill; but he did think that, under all the circumstances, the Motion for reading it a second time should be deferred, say to Monday next. He certainly was averse to the change which the measure proposed.
admitted that the course he had taken in bringing forward such a Motion, without due notice, was irregular. He admitted that, and had been induced, however, to propose it to their Lordships in order that he might introduce some Amendments in the Bill. He could have no objection as their Lordships disapproved of the course, to adjourn the subject till Monday.
§ The Second Reading postponed.