LORD BROUGHAMdesired especially to call the attention of his noble and learned Friend (the Lord Chancellor) to a petition he had to present from the Company of Merchants of the City of Edinburgh, upon a matter which concerned the Testamentary Jurisdiction Bill, now before a Select Committee. The petition prayed that upon the death of any person leaving movable property in England, Scotland, or Ireland, it shall not be necessary to procure letters of administration, probate, or confirmation, in the several counties. According to the law of this country, probate of a will obtained in England or in 992 Ireland had no operation in Scotland, and letters of confirmation in Scotland, which were tantamount to probate, had no legal operation either in Ireland or England. The consequence was, that if a testator were the owner of shares in banks, railways, assurance companies, or mines, in various parts of the United Kingdom, probate must be taken out in England and Ireland, as well as letters of confirmation in Scotland. The inconvenience was enormous. Supposing a Scotch testator possessed an interest, however small, in such companies in the different provinces of York and Canterbury, Dublin and Armagh, his representatives must not only take out probate, or letters of confirmation in Scotland, but must go to those four provinces of York and Canterbury, Dublin and Armagh, before they could administer the estate. These petitioners, who were a most respectable and important body of men, therefore, prayed that probate in England should have effect in Scotland, and, reciprocally, that letters of confirmation in Scotland should have operation in England and in Ireland. The petitioners called the attention of their Lordships to the fact, that the Legislature had already sanctioned what amounted to very nearly the same thing. In the Companies' Clauses Consolidation Act of Scotland exactly that arrangement was made—a certified extract of the probate or letters of administration granted in England was effectual to transfer all shares in railways or any other companies exactly in the same way as where probate or letters of administration had been taken out in Scotland. It so happened that here was just one of those blunders which resulted from legislating without due consideration; for the very next chapter—one was the 16th of the 8th Vict., and the other the 17th (the Companies' Clauses Consolidation Act of England)—was word for word the same as that of Scotland, with this omission, that it did not give the same advantage in England to administration taken out in Scotland, which they had given in Scotland to administrations taken out in England. It was utterly impossible such a state of things could be allowed to continue, and he trusted his noble and learned Friend would allow an addition to be made to the Testamentary Jurisdiction Bill which should effect that important alteration and improvement of the law. This was precisely analogous to the provisions contained in the Bill which he was happy to find had received the universal 993 concurrence of the other House of Parliament, to enable all judgments in one part of the United Kingdom to receive execution in all the other parts. Probate was in the nature of a judgment by a competent tribunal, and to make it effective in any part of the United Kingdom was merely applying the rule which had been recognised by the House of Commons in the Bill to which he alluded.
THE LORD CHANCELLORsaid, this question had been very much considered by the Commissioners; but they thought it impossible to overcome the many difficulties which, though they did not appear on the surface, actually existed. The law of wills was entirely different in Scotland, and the adjudication on wills in Scotland was really no more like that in England than adjudication on wills in France. With regard to Ireland, as jurisdiction was not confined to one court, probate on property of magnitude might be granted by some small diocesan court, without security that due investigation had taken place. He hoped when the present Bill for England, confining jurisdiction to some one court, had passed, a similar Bill would be introduced for Ireland, so as to put both countries on the same footing. He saw great difficulties, under any circumstances, in acceding to the prayer of this petition; but the matter should be well considered, and he should be ready to attend to any suggestions from his noble and learned Friend.
LORD BROUGHAMexpressed his dissent from the opinion of his noble and learned Friend as to the law of wills in Scotland being so entirely different from the law in England; and reiterated the precedent which the Companies' Clauses Consolidation (Scotland) Act afforded for the alteration prayed.
§ Petition read, and referred to the Select Committee on the Testamentary Jurisdiction Bill.