REAL ESTATE CHARGES BILL. (Hansard, 31 July 1854)

§ LORD ST. LEONARDS
said, that he wished to call their Lordships' attention to the provisions of this important Bill, and to the manner in which they would affect real estate. There were two ways in which this measure could be viewed—first, with regard to the ulterior changes affecting real property to which it would prepare the way; and next, the actual provisions it contained with respect to real property. As their Lordships might be aware, another Bill, at an earlier period of the present Session, had been introduced into the other House of Parliament, having for its object to prevent primogeniture from taking effect in regard to the descent of real estate where the owner died intestate; but that measure was rejected. The present Bill was now brought forward as a measure to provide some relief for personal estate as against real estate, and to a certain extent it would give to the next of kin the real estate, which, as the law now stood, belonged to 957 the heir at law. If the question were simply whether or not the law of England should be altered so as to get rid of the principle of primogeniture, and to allow real estate to be divided amongst all the children in the same way as personalty, as some persons in this country desired, it was a matter of which he thought their Lordships would very easily dispose. He did not say that there might not be much argument upon the subject; but, looking at the effect in France of the system in operation there of minutely subdividing landed property, and seeing how this country flourished under the law as it now existed, nothing could be more unwise than to introduce the change which was proposed by the Bill to which he had alluded as having been lost in the other House. Now, the present Bill was an endeavour to obtain an instalment of that former measure, an endeavour to introduce a principle, the establishment of which, step by step, might have the indirect effect of accomplishing an end which, if pursued by a more direct proceeding, by Bill in either House of Parliament, would not be successful. He admitted that, if this Bill were right and proper in itself, and capable of being carried into execution, then, although some of its advocates had further and dangerous views, that would be no reason for refusing to pass the measure, and that the time for objecting to a further measure would be when that further measure came to be proposed; yet their Lordships must be on their guard against sanctioning a principle which they wished to deny, and which could only weaken the foundation of the whole existing law regarding real property, and might be used to hamper their discretion in their subsequent deliberations. Under the law as it now stood, if a man had an estate which descended to him from an ancestor, and which was charged with a mortgage, with portions, or any other incumbrance, or if he bought an estate subject to any mortgage or incumbrance, these incumbrances did not become a charge upon his personal estate; and even if he were to do an act which would bind him personally in regard to certain incumbrances upon the estate he inherited or had bought, the law would not make that incumbrance a debt upon his personal estate, unless he showed an intention to make it his personal debt; it would be a burden upon the real estate upon which it was charged, and the personal estate of the owner would not be liable to pay the 958 debt. But if a man borrow money, although he secure it on his real estate, it is his debt, and like all other his debts, is payable out of his personal estate as the first fund. Now it had been urged that cases of great hardship occasionally arose from this provision of the law, where no provision was made by will or otherwise to meet such incumbrances, and an instance had been quoted of a person having mortgaged his estate and dying without a will or making any provision for the discharge of such mortgage, the personalty became liable to the liquidation of the incumbrance upon the realty, of which the heir at law had the benefit, to the prejudice of the other children. But this difficulty would not have occurred if the father had taken the precaution to provide against it by will or otherwise, as he might have done. Consequently, the law as it stood provided the remedy. The principle of the law, for the last two centuries, was, that the burden of the incumbrance should be borne by that class of property for the benefit of which it was incurred. If the burden were incurred for the purpose of improving the personal estate, it was but just that the personalty should bear it. The principle of the law was clear, and it was open to every man to make a provision to prevent the operation of that law inflicting hardship upon those for whom it was his duty to provide. It was not for Parliament to legislate for every case of hardship consequent upon a man's neglecting to take the ordinary precautions by will against the exigencies of his own family. It was no doubt true that many cases of hardship arose under the present law; but he could point out others equally hard on heirs at law, against which no provision is proposed to be made. For instance, a man having an estate worth 100,000l., which he intended to descend to his heir finds that there was another estate that he could buy with much greater advantage if he could sell his own. An opportunity for selling might offer, and having actually sold, he might die before the purchase-money could be reinvested; and in that case the heir at law would be deprived of both the estate and the purchase-money. Well, how could they deal by legislation with such a case? It was a man's duty to make a will meeting the exigencies of his own position; and if they were to legislate for cases of hardship arising from the neglect of this duty, thousands of cases might start 959 up, and it would be impossible to provide effectually for them by Act of Parliament. He (Lord St. Leonards) would put a still harder case. A man contracted to sell his real estate, and died before the contract was executed. As that estate descended to his eldest son, one would think that he would not be badly off, because he would be entitled to the purchase-money. But not a bit of it. Every shilling of it went to the personal estate, and the heir-at-law did not receive a sixpence more than the other children. Nothing could be more illogical than to lay down general provisions upon single cases, and it was perfectly impossible to provide by legislation for all cases that might arise. It was impossible to frame the law with reference to particular instances; and if importan changes were to be made in the perfunctory and careless manner proposed by this Bill, there would be no end to the mischief that would ensue. If they were to attempt to remodel the law of England, and look to the hardships that were likely to arise on the one side and on the other, he thought it ought not to have been left in the hands of a private Member, but should at least be taken up by the responsible head of the law, and a comprehensive measure, carefully matured and well digested, should be introduced, that the country might clearly understand their intentions with regard to the law of property which had existed for centuries. Now, this Bill proposed that personal estate should not be the first fund from which to pay the debts of the deceased secured upon his real property, but that the real estate should be the first fund—that was, that the next of kin should be relieved at the expense of the heir at law. But if right it did not go far enough. If an estate were devised subject to an incumbrance created by the devisor, and an estate descended from the devisor to his heir at law, the descended estate would be the first fund to pay the debt on the estate of the devisee; so that if a man gave an estate, with a mortgage of 500l. created by him upon it to one son, and left another estate to descend to the eldest son, the eldest son would be liable to pay the mortgage upon his younger brother's estate, and yet no provision is inserted to meet that case. He now came to the second clause of the Bill. Upon this clause he believed the other House divided at a very inconvenient hour of the morning—three o'clock he was informed 960 —and it was carried but by a small majority, almost without discussion, and without consideration. This clause was a most important, and, he was justified in saying also, a most improper one. It provided that— From and after the passing of this Act, when any person shall die seised of or entitled to any land for an estate of inheritance, and shall have by his will directed the same to be sold for the payment of his debts or the purposes of his will, then, unless such person shall by his will have signified any contrary or other intention, the land so demised shall be deemed by a court of equity to be converted into personal estate, and the whole, or any portion thereof that may not be required for the purposes mentioned in the will, shall be divided under the Statute for the distribution of the estates of intestates. The rule of law was, that if a man provided by will that his real estate should be sold and be converted out-and-out, as it was called, then the proceeds of the real estate become personalty; and why?— because it was so directed by the testator. And, on the other hand, if it were directed to sell the real estate to meet certain demands, and for certain purposes only, and those demands and purposes might be satisfied without selling the whole estate, the portion not required to be sold would belong to the heir at law. But this law would in every case convert the whole of the estate into personalty, and the surplus over what was necessary to satisfy the purposes of the will is to be divided under the Statute for the distribution of intestate estates. It did not enact that the whole estate should be sold and the money divided amongst the next of kin, but that any portion not required for the purposes mentioned in the will should be divided under the Statute for the distribution of the estates of intestates, so that they would thus be giving to the next of kin that which belonged to the heir at law, and, moreover dividing the real estate itself amongst the next of kin. He considered both clauses most objectionable. Moreover, he never before saw a Bill interfering with men's properties which did not save existing wills, or allow some time to enable persons to guard against the operation of the new law. Holding that the principle involved was a dangerous innovation of the law of real property, he moved as an Amendment that the House go into Committee upon the Bill on that day three months.

§ EARL FORTESCUE
said, that he could assure their Lordships that were it not that he entertained the strongest conviction of the justice of this measure, and that it would afford a safe remedy for a great practical oppression, he would not have presumed to press upon the consideration of the House any opinion of his against the high authority of the noble and learned Lord. He thought, however, that the noble and learned Lord could not have felt so strongly as he said the justice of his own case, when he went back upon the history of the Bill, accusing its advocates of ulterior objects, and treated the Bill as an instalment of a larger measure for the abolition of the law of primogeniture. He hoped it was unnecessary for him to meet that part of the noble and learned Lord's argument; but, so far from the Bill being directed against the law of primogeniture, be (Earl Fortescue) believed that the adoption of it would tend to render that law more popular than it was at present, by depriving its operation of much hardship and injustice. The noble and learned Lord had suggested instances of hardship that might be experienced under this Bill; but he had, in moving the second reading, pointed to two out of many grievous hardships that had actually and recently occurred under the operation of the present law, a law which, be it recollected, was confined to England and Ireland, for Scotland was happily exempt from it. He had mentioned a case of a man who, having bought an estate for 1,400l., left half that sum on a mortgage upon it, and dying suddenly and intestate, the whole of his personal property was taken by his eldest son, and absorbed in paying off the remaining 700l., and his six younger children were in consequence left in beggary and destitution. He had mentioned another case in which a parent left the whole of his personal property to his only daughter, and his real estate, heavily mortgaged, to a distant relation. There was no doubt that his object was that the bequest to his daughter should be wholly unincumbered; but the devisee of the real estate came upon the personal property to pay the incumbrance on the land, and the result was, that the lady's estate was reduced many thousands below what her father had intended or anticipated. He would now mention a third case. A clergyman with good church preferment had ensured his life to a large amount, and from time to time bought land, leaving the chief part of the 962 purchase-money on mortgage upon it. Being taken dangerously ill a few years ago, he made a will, leaving all his property to his wife, to be by her distributed between his two sons. He recovered his health, but lost his reason. His wife was now dying, and in the probable event of his surviving her, the eldest son would take the whole property, and the younger would be wholly unprovided for. He had heard nothing from the noble and learned Lord to alter his opinion of the hardship of the existing law, or to convince him that injury would be done by the proposed alteration. He should propose that the Act should come into operation from the 31st December, 1854, instead of from the passing of the Act.

THE LORD CHANCELLOR
said, that though this Bill had not been introduced under the sanction of the Government, he took upon himself the entire responsibility of saying that he believed the first clause of the Bill would be productive of unmixed good. Of the second he had not so favourable an opinion. The Bill itself would not in the slightest degree trench upon or approach the question of primo-geniture. It was simply a Bill which would in ninety-nine cases out of a hundred make the disposition of property conformable with the real intentions of the owner. He agreed with his noble and learned Friend (Lord St. Leonards) that it was impossible so to legislate that no cases of hardship should exist. What we ought to attempt was, to make our enactments of such a nature that in the majority of cases in which persons gave no directions as to the disposal of their property it should go according to their wishes. He put it to their Lordships whether they did not, any of them, suppose that if they left land which was mortgaged, and also personal property, their eldest son would take the land subject to the mortgage, while the personal property would be divided equally among all their children? Such, however, was not the law. The law said that the mortgaged estate must be relieved at the expense of the personal property, and thus the younger children of a family be made to pay a mortgage on the estate of their elder brother. He believed that in ninety-nine cases out of a hundred in which this took place, it was contrary to the intention of the person from whom the property had descended. The object of the first clause of this Bill was to remedy this evil, and to make the law conformable to what was the 963 general understanding of ninety-nine out of every hundred persons owning property. He was aware that two or three alterations would be required in the clause, but he could not see how the most strenuous advocates of primogeniture could see any danger in a clause which had no reference whatever to that subject, except so far as under that law the intentions of persons as to the disposal of their property were often defeated. He regretted that this question of primogeniture should be drawn into matters with which it was not at all connected, and thus an odium should be cast upon the advocates of the Bill which they ought not to incur. He should propose, if no other noble Lord did, that the second clause should be omitted, for he did not see his way so clearly with this clause, or that it would tend to the disposition of property as parties intended. He thought that the course for his noble Friend to follow would be to consent to certain Amendments in the first clause, rendered necessary by the incautious manner in which the Bill had been framed; and, as the object of the Measure was to make the law conform with the intentions of people as to the disposition of their property, he trusted their Lordships would not object to go into Committee upon it.

THE LORD CHANCELLOR,
in answer to a question from Lord St. Leonards, said, little good would be done by excepting in the present Bill wills already made; in fact, the Bill would operate less in the case of wills than in cases of intestacy. A period of six months was to be allowed before the Act came into force, to enable parties to consider whether alterations in their wills were necessary, but he would, before the bringing up of the report, consider whether a longer period than six months should be allowed for this.

§ EARL FORTESCUE
said, that after what had been stated by his noble and learned Friend, he would not press the second clause.