§ THE LORD CHANCELLOR (Lord HERSCHELL), in moving the Second Reading of this Bill, said, it was no stranger to the House. Its provisions were found originally in a Bill introduced by the noble Marquess the Leader of the Opposition a few years ago, when he was at the head of Her Majesty's Government. The provisions of the Bill then formed one portion of a Bill which related to the transfer of land and to certain changes to be made in the law of real estate. The Bill he now introduced was in the exact form in which its provisions were found in the Bill of the noble Marquess. No doubt, if it passed its Second Reading, it would be necessary to amend the Bill in Committee, but under the circumstances he thought it desirable to make no change in the wording of the clauses, in order that there might be no ground for refusing to read the Bill a Second time because it differed from the Bill of the noble Marquess. The object of the Bill was a simple one. It was to assimilate the law of succession in the case of real estate on intestacy to that which prevailed in the case of personalty on intestacy. The noble Marquess, on introducing his Bill, said that in the case of small estates it would prevent great injustice; and, as it was to small estates that the measure would chiefly apply, could there be a stronger argument in favour of the House making a change in the law? That change proposed that where a man died intestate in future the State should make a just and not an unjust disposition of his property. He apprehended that that was not only the function of the State, but that it was the absolute duty of the State. And what were the reasons chiefly urged against any change? It was said that the Law of Inheritance was a very ancient one; that it had prevailed for many centuries. Beyond that he had listened in vain and looked in vain for any substantial argument in favour of the maintenance of the present law. The Law of Dowry was as much part of the law as the Law of Inheritance; but by the conveyancing arrangements which were devised to prevent difficulty in the determining of title to 200 the estate, the widow had been practically deprived of her dowry. At the time the Law of Inheritance originated, although the eldest son took the whole of the estate, there were perfectly recognised obligations on his part towards the other members of the family which it was the practice to discharge. But as time went on, the eldest son still took the whole of the estate; but the widow had ceased to enjoy her dowry, and the obligations towards the other members of the family had ceased to be regarded as such. Under the changed circumstances, was it just or right to maintain the law which at present prevailed? It was suggested that the number of cases of intestacy was not large, and that therefore there was not much danger of injustice under the existing law. He had got from the Inland Revenue statistics for the last three years of the number of cases in which there was probate and the number in which there was administration on intestacy. In 1891 there were 42,000 testates and 18,500 intestates; in 1892, 43,300 testates and 18,900 intestates; in 1893, 38,400 testates and 18,238 intestates. Therefore, of the total number of cases in those three years, one-third were cases of intestacy.
§ THE MARQUESS or SALISBURYWere all those landed properties?
§ THE LORD CHANCELLORsaid, he had not got the exact proportion of large estates and small estates; but he was told in the case of small estates the proportion of intestacy to testacy was very large indeed. This was not a question in which the interests of owners of large properties were concerned, or at all events seriously concerned; but it was a matter which deeply concerned the welfare of that large number of people who were children of those who left small estates. He did not suppose there was less injustice done now in the cases of small estates than was done two years ago, when the noble Marquess introduced his Bill. It might be said that many things had happened since then. Some stress was laid on the fact that a measure had since been passed by that House providing that in cases of intestacy in which not more than £500 was left, the whole, whether it was realty or personalty, should go to the widow. That was a very small measure. That was 201 an act of halting justice, but it left the matter as regarded estates over £500 altogether untouched, and it entirely disregarded the interests or the rights of all the children except the eldest. It had been said further, in opposition to the Bill, that the House had passed a measure for the purpose of facilitating the acquisition of small holdings, and that this Bill would run counter to the principle of that measure. No one could be a stronger advocate of the establishment of small holdings than he, but he thought small holdings would be dearly purchased at the expense of injustice. What happened in regard to the Small Holdings Bill? On the proposal of a Conservative Member, the House of Commons made a special provision that in the case of small holdings the Inheritance Law should not apply, but that the ordinary law of distribution should. Therefore the House of Commons decided in respect to small holdings to make the very alteration he now suggested. When the clause came to their lordships' House there were found to be considerable difficulties as to its drafting and application, and it was struck out of the Bill. It was well to recollect, too, that at the instance of the Government of the noble Marquess a measure was passed dealing with lands purchased under the Irish Land Purchase Acts, and of course many of those lands would be small holdings. In the case of such lands the law of inheritance no longer applied. The devolution of the property was changed, which was distributed like personalty. He invited their Lordships' attention to the difficulties which were likely to arise from that legislation if it were not supplemented by what he now proposed. There would be holdings in Ireland consisting in part of what had been bought under the Land Purchase Acts, and in part of what had been bought in another fashion. On the death of an intestate one part of a field would descend according to one law of inheritance, and another part of the field would descend according to another law of inheritance. It had been suggested that a lunatic or an infant would be incapable of making a disposition of his property, and that in consequence estates might become involuntarily divided. The Bill provided for all cases of that kind. This was not 202 a Party measure—at least it ought not to be, considering that its terms were those of the proposal of the noble Marquess. There might be noble Lords who would think it right to vote against the Bill because it was the work of a Liberal Government, even when it was simply borrowed in terms from the proposal of the noble Marquess, whom they followed, but he knew there were many Conservatives strongly in its favour. Judging from communications he had received, there were many Conservatives who maintained, as he did, that the present law was unjust, and that it was unwise and improper that it should be continued. He received a letter not long ago from one who was evidently not a supporter of the present Government. The writer said he had always been in the habit of regarding the House of Lords as a bulwark of our Constitution until it threw out the Inheritance Bill, since which he had cursed it every day. That, no doubt, was an extravagant statement, but at all events, it showed strongly a feeling which might prevail, even in Conservative quarters, with regard to the measure to which he had called attention. What he asked for that night by the Second Reading of the Bill was the affirmation that a change such as was proposed was necessary and expedient, and would serve the ends of justice and equity.
*EARL PERCYsaid the Lord Chancellor had imposed upon him a very serious responsibility, for he rose to ask their Lordships to do that which the noble and learned Lord told the House had entailed a daily curse upon it for some time past. He hoped, however, that their Lordships would, in spite of that curse, consider that the verdict which they gave upon a former occasion ought not to be reversed now. They might agree with the Lord Chancellor that this were not a Bill which affected the large landed proprietors; it was essentially a poor man's Bill, or, if it affected the large landed proprietor at all, it affected him remotely, because perhaps it might make a presumption in the minds of people that the law of primogeniture was unjust, which might cause so strong a sentiment as to create a reaction against the practice. He desired to argue the question purely from 203 the poor man's point of view. They might at once dismiss the widow, for she had been to a certain extent provided for by recent legislation, and if some additional provision were needed for her it was not contained in this Bill. He was rather disappointed with one part of the noble Lord's speech. Last year the noble Lord told them, as he had told them that night, that the cases of intestacy amongst small owners of property were very frequent; but the Prime Minister—whom he was glad to see in his place, thoroughly restored, he hoped, to health—ridiculed the idea that cases of intestacy were common. [The Earl of ROSEBERY dissented.] The Prime Minister shook his head, but he thought the noble Lord's words bore out that statement. He was much interested at the prospect of hearing the statistics which the Lord Chancellor was going to lay before them, but it turned out that those statistics made no difference between the small owners and the large; and, as he understood it, made no distinction between the cases of intestacy of personal property and the cases of intestacy of real property. They were, therefore, still in the dark as to the number of cases of intestacy amongst small owners of real property. He was inclined to believe such cases were numerous. But the Lord Chancellor would have them believe they were numerous, because small owners, as a class, were too stupid, or too indolent, or too improvident, or too poor, to make the necessary disposition of their property. He believed that to be a calumny on the class as a whole. He was not concerned to defend all the classifications of real and personal property which the law had devised. For instance, it might have been better if leaseholds had been included in real property, as they were in Scotland. But, taking the broad distinction that personal property was money, and real property was land, it was perfectly obvious why the presumption of the law of inheritance should be different in the two cases. If a man died intestate leaving, £50 in Consols, and five sons, each of them would receive a fifth part of the value of the estate. If the man died intestate, leaving 50 acres of land it would be extremely difficult to divide that land into five equal portions. The nature of the soil would vary in every 204 acre of the fifty. The buildings necessary for the cultivation of the land would all be situated on one portion. The whole method of cultivation adapted for a holding of 50 acres was quite different from that necessary for a holding of 10 acres. Not only would it be almost impossible to divide the land into five equal portions, but when divided the five portions would not in the aggregate be of the same value as the undivided estate. That was the essence of the whole law of inheritance. In other countries it had been found, as the result of division into small estates, that it was absolutely necessary to consolidate the holdings again. One brother bought out the others, or as many of them as he could. Each portion had been decreased in value by the division; but what determined the price paid for consolidation was not the intrinsic value of each portion, but their value to the persons who desired to combine them. To the buildings on the original holding must of necessity be attached as much of that holding as possible; and therefore the person who undertook consolidation had to pay probably an exorbitant price, and so started in his inheritance heavily burdened. In Switzerland, he believed, the peasant proprietors were endeavouring to go back to some system which would give a preponderance to one son over others. It was sometimes said that, acre for acre, land in France was not more heavily burdened than in England. He doubted the correctness of that assertion, and it did not alter the force of the argument that the man who had 50,000 acres mortgaged to the value of two-thirds of it, hard though his position might be, had far more to draw upon than the man who had 50 acres mortgaged in the same proportion. To burden small properties in this way was doing the very worst for the class whom the supporters of the Bill professed a desire to serve. House property, it might be said, which was a common form of property among small owners, would not be affected in the same way. That was true. A house divided among several brothers was perhaps rather increased than decreased in value by the division. But it produced a worse evil, in the letting out of the house to several different families—and a worse form of property than the tenement house, 205 except from the pecuniary point of view, could not be conceived, for it led to overcrowding, rack-renting, and immoralty. The Lord Chancellor had said that the Small Holdings Act had a clause inserted in the House of Lords to prevent the devolution of property to one owner. But the noble and learned Lord forgot to say that there was a clause put into the Act expressly to prevent the division of small holdings. It was a curious fact that the moment a small holding became public property, Parliament was fully alive to the inexpediency of the holding being divided. It was only when the holding came into private hands that Parliament could regard its division with equanimity. The Lord Chancellor had referred to Ireland. Strangely enough, only two or three days ago he received a letter from an Irish country gentleman informing him that in consequence of the very clause mentioned by the Lord Chancellor, small property in Ireland was rolling up debt as fast as it could, and would be head over ears in 40 years' time. There was, of course, nothing to prevent men contracting themselves out of this Bill by will or deed, and from that point of view the Bill would be popular with the country solicitor. But it was very hard on the small proprietor that he should be put to the expense and trouble of making a will in order to defeat the law, when no one had shown that he felt the present state of the law as a hardship. There was not the slightest reason for supposing that the small proprietor desired any change. It would silence all opposition to the Bill if a Petition, largely signed by the small holders themselves, could be produced, asking for a change of the law. In the absence of any such proof, in the belief that the change would be inimical to the small holders' interests, and in the hope that the House would not reverse its former verdict, he moved that the Bill be read a second time that day six months.
§ THE LORD CHANCELLORsaid, that as no other noble Lord desired to say anything he would answer some of the personal references made by the noble Earl. The noble Earl said, that he had produced no statistics to show what number of those persons who died intestate were owners of real property. It had been hitherto impossible to obtain 206 such statistics, because, of course, they were obtained in connection with the payment of what had been the probate duty, which was only applicable to personal property. There was nothing to show, and it was hardly possible to ascertain, in which of these cases real estate was left. There would be nothing on the face of the documents to give the information, and an elaborate inquiry would be required to get it, and then it would probably not be accurate, The noble Earl asked: Why should not the State, when a man died intestate, make the present disposition of his property? His answer was to ask himself this question—If a man died leaving real estate, and he had to make a disposition of this man's property among those whom he left behind—a disposition which he thought was fair and just—should he think of giving the whole of that estate to one son, leaving the widow and the other sons unprovided for? If any of their lordships had it left to them to say what would be a fair and equable distribution of property left in such circumstances, was there a noble Lord who would give it to one son and leave the widow and other sons nothing? He was content to leave the merits of the Bill to be tried by the answer to such a question as this.
§ The House divided:—Contents, 52; Not Contents, 107.
§ Resolved in the negative; Bill to be read 2a this day six months.