§ Lord Abingerpresented four petitions from Norwich and places in Norfolk against that part of the Ecclesiastical Courts Consolidating Bill which confines the taking out probate of wills to the proposed Central Court in London.
§ Lord Wynfordsaid, if there were no other objection to the clause than that which related to the expense which parties would be put to in taking out probates of wills, it could not be maintained; because he believed that, in point of fact, the expense would be less, if the probate were taken out in London, than if it were taken out in the counties.
The Bishop of Londonsaid, much attention had been paid to this subject by the Ecclesiastical Commissioners, of whom he had the honour to be one, and there was a strong impression on his mind that the expense of taking probate in London would certainly be less than it would be if sought for in those inferior courts.
Lord Ellenboroughsaid, there was a great deal of the bill of which he entirely approved; but he undoubtedly thought it advisable to preserve, for the general convenience of individuals, the right which they now possessed, of taking probate of wills in the different counties, instead of being obliged to visit London for that purpose. There would, at the same time, be no great difficulty to preserve in London a general index. He thought that the Committee on the Bill, which would follow 674 the second reading, might take its general provisions into consideration, but that this particular part of the measure ought to be referred to a Select Committee. They would have a fair opportunity for devising a proper remedy in the case to which the complaints of the petitioners referred. He should either now or hereafter propose such a committee, and would in the mean time put their Lordships in possession of the names of the noble Lords. His Lordship then read the names of those whom he wished to form the Committee.
§ The Lord Chancellorwas most anxious that this subject should undergo mature consideration. At the same time he felt it right to state, that he conceived it to be impossible that any inquiry which might be made could lead to the result which the petitioning parties wished for. Several reports had been made on the subject of the ecclesiastical law; they had been submitted to their Lordships' consideration; and they all agreed in the necessity of this specific alteration. This point had commanded the serious consideration of the Ecclesiastical Commissioners. The subject had been, in fact, before the Commissioners for one whole year. Some of the Commissioners thought that it would be wrong to leave to the local court the right of granting probate. This, however, was met by a contrary opinion, which was held by other members of the Commission. The subject was, therefore, much considered; and it was at last found, that the preservation of this convenience was utterly unattainable, concurrently with the consolidation of the Ecclesiastical Courts which was contemplated. It was never contended that these local courts should exist for the purpose of deciding serious questions—whether, for instance, wills were valid or not, or whether individuals, in disputed cases, should be allowed to take out administration to estates. Then came the difficulty which attended applying for probate in a court which had not the power to decide ultimately on the matter litigated. If the claim were contested, all the expenses incurred in the local court, which could not decide the matter, were entirely thrown away. Even, after probate granted, ail the expense incurred might turn out to be useless. Thus, if probate were granted in one diocese, and the deceased person had possessed property to the amount of 5l. or 10l. in another diocese, the local court, which al- 675 lowed probate, having no jurisdiction in the latter diocese, its proceedings were worth nothing, and the money expended was lost. Another difficulty was, as to where the parties, who might wish to oppose an application for probate, were to address themselves. There must, if the old system prevailed, be at least twenty-six courts, one in each diocese, and a party might find it extremely difficult to discover in which of these application for probate had been made. Suppose the rule to be, that probate should be applied for in the court of the diocese where the party died. In many instances, persons having an interest in the property might not be able to discover exactly where the individual died. This subject had been laboriously investigated by the Ecclesiastical Commissioners, by the Real Property Commissioners, and by a Committee of the House of Commons, and their decided opinion had been, that it was impossible to effect a due improvement in the Ecclesiastical Courts, leaving to the local courts the power of granting probate. If they looked to the large dioceses, they would find that it was more difficult to proceed there than it would be to apply to a central court in London. He would refer to the diocese of Lincoln, and he would ask how much more easy would it be for a party interested to receive information from London, if a central court were established there, than it could be procured in the former place.
§ Lord Denmanexpressed a hope that this measure would be passed without delay, and that all the differences which seemed to exist on the subject should be reconciled. Some arrangement, he thought, might be made for having an index in the country without interfering with the general probate in London. Never was there a measure which came so recommended to Parliament. His noble and learned Friend who now sat on the woolsack was the third Lord Chancellor who had taken up the principle of this Bill. The recommendations of the Commissioners who were appointed to inquire into this subject (and whose generous sacrifice of the patronage which they enjoyed, in order to promote the object of such a measure as the present ought never to be forgotten) were embodied in a measure which had been introduced by his noble and learned Friend (Lord Brougham) who gat on the woolsack 676 in the year 1833, and the principle of that measure had never been lost sight of by any subsequent administration to that of which the noble and learned Lord was a member. Sir Frederick Pollock had introduced a Bill into the House of Commons, similar in its nature to the present; and the present Attorney-General had also brought forward a measure, of which the Bill then under their Lordships' consideration was a transcript. He might, perhaps, he allowed to add, that the present Bill embraced one of the many great improvements which were brought under the consideration of Parliament in the year 1828 by his noble and learned Friend, to whom he had already alluded, in his luminous and comprehensive view of the changes in the law which were then required. Great benefit had already resulted from the adoption of one of those suggestions in the courts at Westminster, and he hoped they would be productive of still further advantages; but there were certainly none of these advantages greater than those which this Bill was calculated to effect, and than it would effect, he trusted, in a very short time.
The petitions were laid on the Table. The Bill was subsequently read a second time and referred to a Select Committee, which, on the motion of Lord Ellen-borough, was appointed.