HL Deb 22 May 1857 vol 145 cc703-11

House in Committee (according to Order).

Clause 1 (Commencement of Act) agreed to.

Clause 2 (Interpretation Clause).

LORD ST. LEONARDS moved an Amendment, the object of which, and of other Amendments, which he intended subsequently to move, was to withdraw from the jurisdiction under this Bill all real estates, and to confine the jurisdiction of the Court solely to personalty. There was no difference of opinion, the business connected with probates, and letters of administration, should be removed from the Ecclesiastical Courts, to a Queen's Court of Probate; but the courts proposed to be superseded, never had, or could have, any jurisdiction over real estate. The Ecclesiastical Courts had exercised a jurisdiction over personal property, because it was necessary to have some one person to represent and administer that kind of estate. But, their Lordships' title to property did not depend on the Ecclesiastical Courts; they required no power from any court to enable them to inherit the estates of their ancestors, and they were able to devise their estates, where they had a devisable interest, without any regard to those courts. There never had been any ground why real property should be brought under the jurisdiction of the Ecclesiastical Courts, and, therefore, why should it now be brought under the jurisdiction of that Court which was a simple substitution for the Ecclesiastical Courts? It was said by persons extremely fond of uniformity that there was an anomaly in the validity of a will being decided by a Judge sitting in the Ecclesiastical Court, or in any new court, as far as regarded personalty, and by a jury as far as regarded realty; that the jury might come to the conclusion that the will was valid, and the Judge come to the conclusion that it was invalid; and that they might thus have two opposite conclusions by competent jurisdictions with respect to the same instrument. He believed that no one could quote two such instances within the recollection of any man. What he (Lord St. Leonards) would advise their Lordships to do was to leave the law as it affected real estate as it was at present. He would urge upon their Lordships the duty of maintaining untouched by this Bill the rights and immunities incident to their own estates and the rights and immunities of every landed gentleman in the kingdom; and he would especially caution them against a change which might tend to result in saddling the owners of real estate with probate duty in the way in which they had been already subjected to a succession duty. He might remind their Lordships that when a former Bill of his noble and learned Friend's (the Lord Chancellor) on this subject went before a Committee upstairs that very question, whether or not real estate should or should not be liable to probate, was most attentively considered and discussed, and that a majority of the Committee decided that real estate should not be made the subject of probate. It was true the present Bill did not propose to subject real estate to probate; but there were several clauses in it which brought real estate within the jurisdiction of the new court, and whenever there was a contest as to a will, the Bill enabled the heir-at-law, or the devisee of the real estate, to appear as a party in such contest. To that proposition he was entirely opposed, and he repeated that the law of England as to real estate required no alteration. He therefore again called upon their Lordships to accept his Amendments, the effect of which would be to leave the law precisely as it stood at present, and to assimilate the Bill in respect to real estate to the one which had been so attentively considered by the Committee upstairs.

Moved, to strike out the words ("Testament and") and the word ("other").


said, it did not appear to him that the Motion of his noble and learned Friend properly raised the question which his noble and learned Friend had brought under the consideration of the Committee; but he (the Lord Chancellor) was nevertheless willing that that question should be raised at once and be discussed on the first Amendment. That question was whether or not, to the extent to which this Bill affected real estate, it ought to affect it. With regard to the merits of this point he owned that at a portion of his noble and learned Friend's address he felt somewhat annoyed. He certainly did not like, for the sake of the character of their Lordships' House, the sort of argumentum ad landowner or argumentum ad hominess used by his noble and learned Friend, by which he appealed to the landed interest in the country as distinct from the general interests of the community. He (the Lord Chancellor) on the contrary thought that all questions should be decided not by the interests within the House, but by the interests of the great body of the community. Now, what did this Bill propose with reference to real estate? The Chancery Commissioners, in their Report published in 1854, recommended that there should be one jurisdiction for real and personal estate, and that probate should extend to all property of every description. He acted upon that suggestion when he introduced a Bill on this subject in 1854; but during the discussions in the Select Committee, to which the Bill was referred, the general opinion seemed to be that the alteration would be attended with inconvenience; and he therefore confined the measure to personal estate. The Bill passed their Lordships' House in that form, but it did not pass the House of Commons. In 1855 and 1856 measures with the object of improving the testamentary jurisdiction were originated in the other House. But as it was the opinion of his colleagues that it was advisable he should introduce a similar Bill into their Lordships' House this year, he had most attentively reconsidered the whole subject, and he had satisfied himself that it would not he desirable to act upon the recommendation of the Commissioners with respect to real property, and that the same necessity did not exist for probate of real estate that there was for probate of personal estate. In the case of personal estate it was necessary to have somebody to represent the deceased, to sue for the recovery of debts, and to receive personal property, which was of infinite variety, and probate with regard to that description of property was therefore absolutely requisite; but he did not think any such necessity existed with respect to real estate. There was, however, this extraordinary anomaly—that although, when a will had been proved as to personal estate, the title of the executor was conclusively established to every particle of the personal property—whether in the shape of leasehold, money in the funds, railway shares, debts: if a question were raised whether the will was properly executed, or whether the testator was of sound mind, that was established once for all as regarded personalty. But this was the anomaly, inasmuch as probate did not extend to real estate, the question which had been decided as to personal estate might, according to the existing law, be reopened with regard to the real estate. His noble and learned Friend said that these cases were of very rare occurrence. That was true; and if there had been no ready remedy it might have been better to bear the evil. But he (the Lord Chancellor) considered that it might be remedied so simply, so easily, and so effectually, that he should have thought himself wanting in his duty if, when he was proposing a plan for improving the testamentary jurisdiction he did not include in it a remedy for such an anomaly. What he proposed was, not that probate should be required with regard to real estate in all cases of wills disputed or undisputed; but that if a will were disputed upon the ground that the testator was insane, or for any cause which applied to the whole will, all the persons interested under such will should be cited immediately after the testator's decease, and while the evidence was yet available, and the matter settled once and for all. He could not conceive what possible objection there could be to such a course. His noble and learned Friend had said that cases of the kind referred to were of rare occurrence. So they were; but since he (the Lord Chancellor) had had the honour of holding the Great Seal the very question had arisen, and in a case of no small importance. In 1842 a gentleman died at Cheltenham, who had made a will two or three weeks before his death, by which he bequeathed all his property of every description to his widow. The widow proved the will, which was a good probate as to the personal estate, and in virtue of such probate she obtained personal property in the funds, and of other descriptions, to the value of £150,000. The deceased was also the owner in fee simple of very large estates in Ireland, producing £7,000 or £8,000 a year; but after the widow had been in possession of those estates for some little time, proceedings were instituted by the heir-at-law for their recovery. A trial took place, and the jury found that the testator was insane at the time he made the will. The subject was brought by appeal before the House of Lords, and was argued very fully and ably at the bar. He had occasion to consider the case without the assistance of any of their Lordships. He thought himself disentitled to look at what had been done with regard to probate, but he came to the conclusion upon other grounds that the trial had not been satisfactory, and he therefore reversed the decision of the Irish Court and directed that a new trial should take place. The same result might follow from a new trial, but he mentioned this case to show the present anomalous state of the law, and he thought he should have been deservedly obnoxious to the charge of adhering too blindly to precedent if he had not taken the opportunity, now afforded, of remedying this state of things, and with this view he had proposed these clauses. The Bill would not involve the necessity of probate of real estate in ordinary cases, but he proposed that when there was a contest, probate should be conclusive both as to real and personal estate.

On Question, that ("Testament and") stand part? The Committee divided:—Contents 56; Not Contents 35: Majority 21.

Clause agreed to.

Canterbury, Archbp. Granville, E.
Cranworth, L. (L. Chancellor.) Grey, E.
Harrowby, E.
Minto, E.
Ailesbury, M. Portarlington, E.
Portsmouth, E.
Abingdon, E. Stanhope, E.
Burlington, E.
Clarendon, E. Eversley, V.
Effingham, E. Falmouth, V.
Fitzwilliam, E. Gordon, V. (E. Aberdeen.)
Fortescue, E.
Bath and Wells, Bp. Kingston, L. (E. Kingston.)
Kilmore, &c., Bp.
London, Bp. Meldrum, L. (M. Huntly.)
St. Asaph, Bp. Mont Eagle, L. (M. Sligo.)
St. David's, Bp. Monteagle of Brandon, L.
Worcester, Bp.
Oriel, L. (V. Massereene.)
Belper, L.
Brodrick, L. (V. Midleton.) Panmure, L.
Ponsonby, L. (E. Bessborough.) [Teller.]
Byron, L.
Calthorpe, L. Rivers, L.
Camoys, L. Saye and Sele, L.
Campbell, L. Sefton, L. (E. Sefton.)
Carew, L. Stanley of Alderley, L.
Clandeboye, L. (L. Dufferin and claneboye.) Stewart of Stewart's Court, L (M. Londonderry.)
Clonbrock, L.
Congleton, L. Strafford, L.
Dacre, L. Sunbridge, L. (D. Argyll.)
De Tabley, L.
Fingall, L. (E. Fingall.) Wensleydale, L.
Foley, L. [Teller.] Wycombe, L.
Hunsdon, L. (V. Falkland.)
Norfolk, D. Ardrossan, L. (E. Eglintoun)
Richmond, D.
Bagot, L.
Bath, M. Berners, L.
Salisbury, M. Bolton, L.
Colchester, L. [Teller.]
Belmore, E. Colville of Culross, L. [Teller.]
Carnarvon, E.
Hardwicke, E. Gray, L.
Harewood, E. Lovel and Holland, L. (E. Egmont.)
Harrington, E.
Lucan, E. Polwarth, L.
Malmesbury, E. Raglan, L.
Mayo, E. Ravensworth, L.
Powis, E. Redesdale, L.
Seafield, E. Sheffield, L. (E. Sheffield.)
Talbot, E.
Sondes, L.
Combermere, V. Saint Leonards, L.
Doneraile, V. Walsingham, L.
Dungannon, V. Wynford, L.

Clauses 3 and 4 agreed to.

Clause 5 (Her Majesty to appoint Judge of the Court; the First Judge to be the present Judge of the Prerogative Court).


observed that, on the previous discussion on this Bill, the noble and learned Lord (the Lord Chancellor) had represented that it was the opinion of Dr. Lushington that one Judge would he sufficient for all the duties of the Admiralty, Matrimonial, and Probate Courts. He was informed, however, that that learned Gentleman had said that his opinion had been modified since the period when he gave his evidence some years ago, and that, considering the increase of business which had taken place in the Admiralty Court, and the probability of further increase of business after the alteration of the present system, he was inclin- ed to think that one Judge would not be adequate for the purpose. He therefore wished to know whether it was intended to leave the present clause as it now stood? A great part of the present business was conducted by paper out of Court, but if hereafter it should be conducted vivâ voce, the more frequent attendance of the Judge in court would be rendered necessary, and, considering that the attendance of the Judge would also be required at the Judicial Committee of the Privy Council, he hardly thought that the services of one Judge would be sufficient.


was afraid that he had unintentionally gone beyond what his learned Friend authorized him to say. He had a conversation with him about a fortnight ago on the subject of the amount of business likely to come before the new Court of Probate, and was then told by him that twenty years ago he was examined before a Committee of the House of Commons, and gave his opinion that one Judge could do the business; but that since then the business of the Admiralty Court had no doubt increased, and that he could not now feel the same confidence that one Judge would be sufficient. Instead of representing the leaning of the opinion of that learned person to be now that one Judge could do the whole business, he thought he must state that the learned Gentleman was inclined to think, without expressing a confident opinion on the point, that one Judge would not be sufficient. It was, however, unnecessary to make any alteration in the present clause.

Clause agreed to.

Clauses 6 to 22 agreed to, with Amendments.

Clause 23 (Court to have throughout all England the same Powers as the Prerogative Court within the Province of Canterbury).


asked whether one Bill might not be introduced to apply to the whole of the kingdom? Why should Ireland be excluded from the advantage of such a measure?


claimed justice for Scotland also. Surely his noble and learned Friend, with the assistance of the Lord Advocate, might devise some scheme to make the law with regard to probates and letters of administration uniform throughout the whole kingdom.


acknowledged the desirability of such a measure, but said that he did not yet propose to make probates everywhere interchangeable. They would first make this Bill perfect for England, after which there would be no difficulty in framing an Act to extend to Scotland and Ireland.

Clause agreed to.

Clauses 24 to 36 agreed to.

Clause 37 (Appeal to the Privy Council).

LORD ST. LEONARDS moved an Amendment that appeal should lie to the House of Lords instead of to the Privy Council. He considered it to be a great constitutional question. It was essential that the Judges who had to decide questions relating to the property of the subject should be independent of the Crown. But the Judicial Committee of the Privy Council was a tribunal wholly unknown to the constitution of the country, and did not deal with questions relating to real estate, or such matters as were dealt with by this Bill; and a Privy Councillor was removeable at the pleasure of the Sovereign.


said, he had not any serious fears of the Members of the Judicial Committee being under the influence of the Crown; but he thought that, constitutionally and wisely, the House of Lords was the proper Court of dernier ressort for all questions respecting the common law of England.


said, that the Amendment of his noble and hon. Friend (Lord St. Leonards) met his own views, and he would adopt it; indeed he had originally framed the Bill with an appeal to the House of Lords.

Amendment made, and clause, as amended, agreed to.

Clauses 38 to 95 agreed to, with verbal Amendments.

Clause 96 (Compensation to Registrars, &c., of existing Courts).


observed that no provision was made in the Bill for the payment of the Chancellor and Registrar of the diocese of London. The office of Chancellor of that diocese was one of great importance, and had been held by men of high distinction, including Lord Stowell and Dr. Lushington. He hoped, therefore, that before the Report was brought up the noble and learned Lord would provide for the payment of those important officials, not only in the diocese of London, but in other dioceses.


said, that whatever remuneration the present Chancellor held, they would still be entitled to. But he did not see the propriety of making persons proving wills pay the salaries of ecclesiastical officers, however valuable and important their services might be.

Clause agreed to; Remaining clauses agreed to.

Schedules and preamble agreed to.

Report of the Amendments to be received on Thursday next.

House adjourned at Eight o'clock, to Monday next, Eleven o'clock.