§ VISCOUNT ASTOR had given Notice to move to resolve, That a Select Committee be appointed to see whether a change is necessary in the laws governing testa- 38 mentary provision for wives, husbands and children based on the experience of Scotland, Australia and the other portions of the Empire. The noble Viscount said: My Lords, I beg to move the Motion which stands in my name on the Order Paper. I was asked some time ago to see if anything could be done to remedy the very real hardships which are possible and which now occur under the law as we have it in this country. There were two alternatives before me, either to introduce definite remedial legislation or to suggest to your Lordships that as a preliminary step there should be an Inquiry. I thought it was probably more suitable to suggest the latter course, because it is some time since this particular question has been debated in Parliament and at the present moment there is no very clear expression of public opinion as to how the matter should be dealt with. That the public is interested my post bag has certainly shown since I put down the terms of my Motion on the Order Paper. I have been surprised at the numbers of letters which I have received from all over the country.
§ At the outset I want to crave your Lordships' particular indulgence, because I realise that as a layman I shall have to try to deal with very technical legal matters in an assembly consisting very largely of learned Lords. Therefore I propose to deal only very generally with the broad principles and not to attempt to go in any detail into the general Statutes. I have framed my Resolution in order to be able to deal with two sets of hardships. There is, first of all, the case of the surviving spouse who may find himself or herself badly treated, and there is, secondly, the case where the aggrieved persons may be either children or other dependants of the deceased. I have framed my Motion also so as to suggest an Inquiry into the law of Scotland on the one hand and of the Dominions on the other hand, because the matter is dealt with quite differently in the Dominions from what it is in Scotland. In 1870 John Stuart Mill, giving evidence before a Royal Commission, said: "We ought not to give powers liable to very great abuse and then presume that those powers would not, be abused." Now it is possible under the existing Statutes for abuses or grievances or injustices to arise. I shall, at the beginning, quote to your 39 Lordships typical cases—specimens of the sort of grievances and of hard cases which have been brought to my notice. I do not say that they are the general rule. I am glad to bear testimony to the fact that most people, most owners of property, do in fact treat their families properly and adequately, but there are undoubtedly exceptional cases where this is not done. Unfortunately, because of the circumstances, very frequently these matters are never brought before the public. There is no remedy and people hesitate to bring personal domestic matters, cases of hardship and of bad treatment, before the public.
§ Let me, then, give you the first and the obvious set of cases which arise. Take the case in which a man marries a woman and then becomes infatuated with another woman, cuts off his lawful wife, leaves her penniless and leaves his property to the other woman. I have a considerable number of such cases. I shall not quote them all but merely give your Lordships one or two specimens. A man, for instance, with business connections in two towns—one of the businesses being managed by his wife—leaves his wife penniless by his will when he dies, and leaves the whole of his property to a woman and her children in the town where he had his other business premises. Another case is that of a man with one little girl who died and left all his property to his mistress. Or take a case which arose not very long ago in London and which had to be dealt with by one of the London boards of guardians. A man, the manager of a small business, left his wife and went to live with another woman. During his lifetime he was compelled by the guardians to make an allowance to his wife, but on his death the law made it possible for him to leave all his money to the other woman and his wife had to be supported out of the rates. During his lifetime he had been compelled to support her, but this maintenance was stopped on his death.
§ It is not only in cases of people of moderate circumstances that this hardship arises. I have another case of a wealthy man, who left £1,500,000 to his illegitimate children and their mother and only £30,000 to his legitimate children and his lawful wife. It is not only the wife who suffers in these cases. Usually the children appear to side with 40 their mother because of their sense of injustice at the way in which their mother has been treated, and in consequence of that they also suffer injustice under the will. One last case which I will give is that of an Army officer serving abroad. His wife lived in Wales. He died soon after landing on his return to this country. He left £50 to his wife and to each of his children and the remainder of his property to another woman in Egypt, where he had been serving, and to her child. That then is one type of case that has been brought to my notice.
§ Another is when there is a quarrel between husband and wife or between parent and children, the result of the quarrel being that the owner of the property cuts off his or her spouse, perhaps dying before the quarrel has been put right. There, again, very frequently the children suffer because they side with one of the parents, usually the mother. There is yet another type of case of which I will give two illustrations. I have the case of a man who during his lifetime was obliged to contribute to the maintenance of his wife, who was of unsound mind. At his death it was found that he had left the whole of his property to others, and that the maintenance ceased and the wife had to be supported by the guardians. Another peculiar case came to my notice of a man and woman who lived perfectly happily; at the outset the man was a business man in a small way of business, and he made a will leaving 35s. a week to his wife and the residue to some charity. He forgot to alter his will, and it was found when he died that he was a man of considerable wealth—he left £500,000. No subsequent will had been made, and his wife was left with 35s. a week, the whole of the residue of the property went to charity and there was no way of putting the matter right. Obviously it was not the intention of the testator that his wife should be left in those circumstances.
§ I have quoted only a limited number of cases that have been brought to my attention, as I promised to do, but I claim that they show that real hardship and injustice occur under the law as it stands and, though I am glad to say these cases are the exception and not the rule, yet I suggest to your Lordships 41 that they are sufficiently frequent to justify us in taking some action to put things right. I am convinced that they are entirely inconsistent with and contrary to the broad sense of fairness and fair play associated with this country, and they are also opposed to the trend of modern public opinion. I have indicated to your Lordships that, as the law now stands, the guardians can obtain an order against whichever spouse has means if the other spouse becomes chargeable under the Poor Law. That is to say, the law holds responsible for the maintenance of the husband or wife whichever of them has property. There is another precedent of which I should like to remind your Lordships. I refer to intestacy. Quite recently, in 1925, Parliament passed an Act, the Administration of Estates Act, which dealt amongst other things with the law regarding intestacy. Parliament revised the law, surveyed the whole position and decided that it was right to make more generous provision for the spouse and children of those owners of property who might die intestate. As the law now stands the survivor has definite and absolute rights to the residuary estate in cases of intestacy.
§ There is another indication of the trend of public opinion to be found in the discussions on the revision of the Prayer Book. The words of the marriage ceremony have been examined, and the man on marrying uses the words: "all my worldly goods with thee I share," thus indicating a moral obligation to provide for and share his worldly possessions with his wife. I understand that there is no difference of opinion as to the insertion or retention of those words in the marriage ceremony, and they do indicate the general trend of public opinion. I believe that England and Wales are the only two countries in the world—certainly the only English-speaking countries—where this sort of hardship and injustice is possible. I am not suggesting that we should return to old usages or to the law as it used to be. At one time the law was entirely different. At Common Law no, freeholds could be disposed of by will except by custom in some boroughs. Various Statutes were passed to change this. In the time of Henry VIII the Statute of Wills gave unrestricted power 42 to devise socage and two-thirds of the land held by knight's service. In 1660 the Abolition of Feudal Tenures Act completed the process. As regards personalty, in early times the right to dispose of personalty by will was of a restricted nature, but at different times various changes in the law were made, and Statutes were passed in the days of William and Mary and of Queen Anne abolishing the restrictions. It will be seen that we have passed from restriction to complete freedom, and it is under the present state of the law, whereby the owner of property has complete liberty to dispose of his property by will, that the cases of hardship that I have quoted arise.
In the Dominions at the present time they deal with the case rather differently, and I should like to indicate to your Lordships the way in which this matter is dealt with there. Take New Zealand. Under the Family Protection Act, passed in 1895 and now part of a Consolidating Act passed in 1908, a Court has been set up, and I should like to read to your Lordships a portion of the second part of that Act. It deals with what is called Testators' Family Maintenance. Section 33 says:—
If any person … dies leaving a will and without making therein adequate provision for the proper maintenance and support of the testator's wife, husband or children, the Court may at its discretion … order that such provision as the Court thinks fit shall be made out of the estate of the testator for such wife, husband or children.
The words "proper maintenance" have been held to mean such maintenance and support as it was the moral duty of the testator to provide, having regard to the circumstances. There is a further section that I should like to quote. It is as follows:—
The Court may attach such conditions to the Order as it thinks fit, or may refuse to make an Order in favour of any person whose character or conduct is such as in the opinion of the Court to disentitle him or her to the benefit of an Order under this Act.
In New Zealand, therefore, where there is an aggrieved party, that party has a right to go to a Court which has full discretionary powers, which considers all the circumstances of the case and which can provide, if it thinks it necessary and right, fair and proper maintenance for the aggrieved person.
In Victoria the matter has been dealt with by an Act called the Administration and Probate Act, 1915, and, here again, I would like to read extracts from one section:—
If any person disposes of his property either wholly or partly by will or codicil in such a manner that, upon his death, his widow or children or any of them is or are left without sufficient means for their maintenance and support … the Court may in its discretion, if it thinks fit, … order such provision as to the Court seems proper, having regard to all the circumstances of the case, to be made out of the estate of such deceased person in or towards the maintenance and support of such widow or children or any of them.
The Court which is set up under this Statute has construed this enactment in this way—namely, that the Court will exercise the power only where the case demands it; that regard will be had to the position of the applicant during the testator's life; that the section only applies where there has been a capricious or unreasonable will, and that the Court cannot increase a widow's provision under the will beyond her intestacy rights. I think your Lordships will agree that those are very suitable and adequate safeguards and provisions. Then there is another section also in the Victoria Law. The Court may refuse any such application if the character or conduct of the applicant is such as in the opinion of the Court to disentitle him or her to the benefit of any provision. So in Victoria, again, we have a Court set up with full discretionary powers which may take into consideration the character and conduct of the applicant for relief or maintenance or support, and which only acts where the will is held by the Court to be capricious or unreasonable; that is to say, unjust.
§ In New South Wales there is a very similar Statute called the Testator's Family Maintenance and Guardianship of Infants Act, 1916. In Queensland there is a similar Act. British Columbia follows the New Zealand model. So, in a large number of our Dominions, Statutes have been passed which make it impossible in those countries for the sort of injustice and hard case to arise which is possible here and in Wales, illustrations of which I have quoted. I have made inquiry and I understand that the law works very well in the Dominions. As a result of the existence of the Court, testators take care to be just and the 44 applications to the Court for relief and maintenance and assistance are comparatively rare.
§ Your Lordships are probably aware that in Scotland the law is different, being based on Roman law. A wife is entitled on her husband's death to one-third of his free movable estate if he leaves lawful children, or one-half if he leaves no children. By the Married Women's Property Act, 1881, a corresponding share is given to the husband. The children of a deceased father or mother are entitled to a definite share in the free movable estate of the deceased after deducting debts and liabilities. I have made inquiries as to the working of the law in Scotland. Many of your Lordships are qualified to express an opinion based on actual experience. So far as I can make out, generally speaking opinion in Scotland appears to be satisfied with the law there. In England I think that the legal opinion, on the whole, is that it is too inelastic and diminishes to too great an extent parental control, which is undesirable, and as a result of the law as it now stands, there are cases where people are induced to change their domicile or to deal with their property during their lifetime rather than wait until they die and dispose of it by will.
§ In the United States most of the States have laws which provide that the widow may apply to the Probate Judge for an order that she may have an allowance. Many States also provide for allowances for children. The amount of the allowance is sometimes fixed by Statute and in other cases is left to the Court. So in most of the English-speaking countries the law makes it impossible for the type of hardship and injustice to arise which is possible here under our own law. As I understand it, the main arguments which are brought in favour of the law as it now stands and against any change are: (1), that a man is entitled to dispose of his property as he may see fit; (2), that a testator has a greater knowledge of his family and his children than any Court can have, and that he is more competent and qualified to cut off a spendthrift or a son whom he may consider unsuitable to inherit property. Those objections, it seems to me, would be valid if it were suggested that we should change our English law and adopt the Scottish law, but I do not think 45 that those objections can be brought against the Statutes which exist in New Zealand, Victoria anxd some of our other Dominions, which I have quoted. There the Court carries full public confidence. The Court has experience, it surveys all the facts, it has all the circumstances before it before taking any action, and it is in a position to prevent any cases of gross unfairness.
§ As I see it, the issue is between the right of arbitrary disinheritance on the one side and disinheritance on reasonable grounds on the other. Personally, I think we ought to oppose the right of arbitrary disinheritance, and I do suggest, that we ought to accept disinheritance on reasonable grounds—a very real difference. In my Motion I have suggested an Inquiry rather than a definite remedial proposal. I have done so, as I indicated at the outset, because the matter has not been recently debated in Parliament. Public opinion has not the criticisms, comments and experience of those who have studied the case. If I were to bring in a definite concrete Bill or proposal, my own inclination would be to base legislation on the experience of New Zealand and Victoria, and to extend the existing powers of the Courts. At the present moment, as I understand it, the English Courts have the, right to refuse to grant probate either where the testator is not of sound testamentary capacity or where, in the opinion of the Court, the will was executed under undue influence.
§ If we were to have legislation on the lines which have been adopted in New Zealand, I suggest to your Lordships that we should be legislating on lines consistent with our practice and tradition. We should merely be extending the existing powers of our Courts, and I believe that the effect of such legislation would be to compel the testator to see that his will complied with the requirements of the Court. I hope that the discussion to-day will show whether in your Lordships' opinion an Inquiry is needed or, if in your opinion an Inquiry is not needed, what our line of advance should be most consistently with our tradition and our practice, and a line of advance which would, with the least alteration in the law as it stands to-day, prevent the continued occurrence of the cases of manifest hardship and injustice which are 46 possible at the present moment. I beg to move.
§ Moved to resolve, That a Select Committee be appointed to see whether a, change is necessary in the laws governing testamentary provision for wives, husbands and children based on the experience of Scotland, Australia and the other portions of the Empire.—(Viscount Astor.)
§ VISCOUNT HALDANE
My Lords, the noble Viscount out of the goodness of his heart has brought before your Lordships a number of hard cases and upon those hard cases he has based a proposal. I have much sympathy with the feeling which these cases has excited in the noble. Viscount's mind, and if I thought they could be dealt with in the way he proposes I should be very glad. I am not opposing the general purpose of his Motion, but I am going to submit to your Lordships some reasons for saying that his proposition is an unworkable one. He takes a number of hard cases. Ho admits that they are not very many compared with the cases in which people behave justly when they die. But he says they are there and redress has been given elsewhere and redress is called for. It has always to be remembered that for one such case there are a hundred cases in which people make dispositions of their property (of which they alone can judge) which, as a rule, are fair and with which no Court would interfere. That being so, what is it that the noble Viscount proposes? He proposes to set up a tribunal, or power in the existing tribunals, to make a new will for the testator. He says there, are cases so hard that there should be some power of interference by the Court, and he proposes to give that power to redress the grievances of anybody who thinks himself aggrieved.
Take the cases which were given to us by the noble Viscount. One was the case of a man who left £30,000 only to his wife and legitimate children and £1,000,000 to his mistress and her children. Well, it may have been very wrong, but. I do not know; he may have thought that his wife and legitimate children would be better off without it. It may have been an eccentric view, but it may have been a true view. At any rate, it was the view which he took. 47 And it is often so. I could give the noble Viscount other cases by no means hypothetical. A workman saves a little money. He knows that his wife is a capable woman who can earn her livelihood and his children are also capable and earning, and some of the little money he leaves he therefore directs to be applied to the maintenance of his aged mother, who is bedridden and cannot work to maintain herself. I suppose that would be a violation of the principle which the noble Viscount has laid down, and I suppose it would be in the power of the Courts to strike out the provision for the old mother. But I do not know that the exercise of the power would commend itself to the British public.
The truth is there are only two ways in this matter: either you leave people to make their wills and trust to their sense of justice, as you do in an infinite number of other matters, or you say it is better that some State authority should make their wills for them. Now, I am not averse from the intervention of the State in many cases, but when the State intervenes in matters of wills I have seen too much of what goes on in the Courts to think that the Judges are able to do it wisely. We never know the circumstances. We see only the abstract things that are set out in the document. It is almost impossible to tell what situation a testator has to contemplate and what are the relative positions of the beneficiaries who take under his will. Therefore I am very much averse from putting that duty upon the Judges. If there is to be a tribunal set up, I would much rather set it up out of the Bench of Bishops, who, I am sure, could do it better and more humanely. Anyhow, I do not want to see the law mixed up with it because I am sure the law will not acquit itself very creditably in carrying out the task.
The noble Viscount gave as certain cases of countries where there had been legislation like this. He gave us the case of New Zealand and the case of one of the States in Australia. In both these cases what had been done was what I have described to your Lordships. Power was given to the Courts to make a new will, a jester will and a better will. That is a procedure which I, for my part, Very much deprecate being thrust on the Judges, simply because they cannot know 48 and they are very apt to do injustice. There may be cases so gross and so flagrant that there is no doubt about them, but those are few compared to the cases in which the father of the family himself knows better, and has acted with good sense and justly.
The noble Viscount turned to the case of Scotland. I am fairly familiar with the law of Scotland and I can assure him that it does not work out as he imagines. There is in Scotland, of course, a law which gives to children a share of their father's estate after he dies—a share which in the case of children is called the legitim, and sometimes the bairns' portion. There is also a provision for the wife, which is called jus relictæ, and if those are left them they cannot be interfered with and the beneficiaries must take. There is also reserved to the father himself a share of which he can dispose by will. But it almost never happens, when people marry with any substantial property, that these rights are left intact. Every marriage settlement has a common form put in, a renunciation of jus relictæ on the part of the wife and exclusion of legitim on the part of the children. The Courts will not estimate the quantum. They know better. They know what would happen if they tried. But they do give effect to these provisions, and almost never, when there is any substantial property dealt with, is there a provision which the children can claim as of right. It is always defeated in this way, and it is a matter of course to defeat it. And therefore to talk of this as if it were the system of Scottish law, a system which we should do well to copy, is, in my judgment, to talk of what is not sense. It operates, no doubt. Well, there are people in such a position that they have no marriage settlement of any kind; they are not numerous unless the property is small.
The noble Viscount proposes to set a Select Committee of this House to work to examine the experience of other countries, and to examine their laws, and to see whether our laws in relation to what is so ascertained are or are not defective. I pity that Committee. It will sit for years and years if it is to estimate what has been the experience in these cases. They will find multitudes of cases in which people regard the deci- 49 sions of the tribunals as given without sufficient knowledge of the facts, or without informing themselves. They will find that in Scotland there is no such system as is foreshadowed in the noble Viscount's Motion. They will find it has been interfered with by the people, and they will come back to this—that the only force which can guide and compel in these matters is the force of public opinion, the force which compels a man, or almost compels him, to do what he ought to do and to do what he does do in the vast majority of cases. I am not saying that there may not be an exceptional class of case for which a provision should be made by some tribunal, by no means necessarily or appropriately a judicial one; that provision ought to be made out of the estate of somebody who has apparently grossly maltreated his wife and children. But it is a power which should be exercised very cautiously, and I should be very sorry to be called upon to undertake the duty of framing it.
It is certainly not a thing for the abstract judgment of a Committee. It is rather like that power in the Administration of Estates Act to which the noble Viscount referred, which was put in, I think, by Lord Cave. It was not in the edition of the Bill that I brought in, not in the edition of the Bill which was drawn by the noble and learned Earl, Lord Birkenhead. It was a clause of a restrictive character leaving to the testator or prescribing to him what he was expected to do. That may be a very proper clause to put in even in a stronger form. But it is a thing which will require careful study. These things generally come about as the result of the reflections of a succession of Lords Chancellor, and if the noble and learned Lord on the Woolsack will take this matter into consideration it may be possible for him to devise a, clause which shall give the power of making provision out of the estate of an intestate or a testator, despite provisions to the contrary, which may redress gross and flagrant cases of injustice. But that clause must be carefully considered and closely fenced in, and, as I say, I am not prepared to pronounce on its shape or its possibility at this moment; still less to think that any advantage will cone from its consideration by such a 50 Select Committee as the noble Viscount has proposed.
I have now indicated what seem to me to be some doubts about the proposal which the noble Viscount has put before your Lordships. I doubt whether it is a practicable one, and I am sure that in the form in which he has really proposed it, the form of giving power to some tribunal to make a new will for the testator, it is not a power which the people of this country will welcome. These things can only be done when you have public opinion at your back. To get public opinion at your back you require more than a limited number of cases of hardship. You require something which points to the necessity of the system itself being revised. I do not propose to vote against the noble Viscount's Motion, because I think it is the expression of a pious opinion. I have not much fear of its being put into any form that will cause difficulty; but I beg of him to consider that these matters are very complicated and very intricate, far more so than would be gathered from the terms of his Motion, and that it is only a really exhaustive study by the Government that can devise any remedy for the points he has raised.
§ LORD BUCKMASTER
My Lords, with the intention that underlies the Motion of the noble Viscount I entirely sympathise. The remedy that he proposes I doubt, and the circumstances which have rendered his Motion necessary I sincerely deplore. His Motion is based upon these two hypotheses—first, that a woman is and must be generally assumed to be dependent upon her husband; and, secondly, that in a substantial number of cases the obligation that this dependency imposes will not be recognised. It may be true at present that that is the condition in which women stand, but I think it is a condition that we all ought to try to alter. My idea is that men and women should be socially and economically equal, free and independent, that it should be no more a matter of surprise that a woman should set out to earn her living than that a man should do so, and that when a woman is left a widow society ought to be so organised that she should be just as able to protect herself as a man when his wife dies. I know perfectly well that those conditions do not exist to-day. I know equally well that it 51 will be very many years before they are reached; but until that condition has been attained, I think that all we do in regard to these matters is nothing but tinkering.
It is perfectly true at this moment that the professions are open to women. It is true that the opinion which only a few years back was undoubtedly exercised to restrain them entering those professions is slowly relaxing in their favour. But when women have for centuries been placed in a position of complete economic subjection, it is impossible to expect that they will be able at a moment's notice to take full value of the opportunity of liberty that is now afforded. It is in enlarging those opportunities, in encouraging women in their work and in the development of their economic life, that I would like to see reform take place rather than along the lines that the noble Viscount suggests. Your Lordships need not be uneasy about the picture that I paint, because you can rest assured that within the lifetime of the longest lived of the descendants of the youngest member of this House, the ideas I have mentioned will not be realised. But that is no reason why they should not be worked for, and certainly it is to their achievement that I should be glad to give my help.
As that future is a long way off, what ought we to do at the present moment? Women are undoubtedly in a condition of economic subjection. A woman marries a man, and it is frequently regarded as the best means of providing for her for life. That in itself I think is an entirely degrading way in which to regard such a relationship. But this Motion assumes, of course, that that is the position, and that from the time she is married until she dies, she is to look to her husband, either living or dead, for her support. Be then says that this obligation is not generally and sufficiently accepted by men. I think it is right to say that there are cases in which men do disregard the obligation which is the undoubted correlative of the woman's present position, but I am bound to say some of the instances he gave left me entirely unmoved. I agree with the noble Viscount who has just sat down that if a man left his wife £30,000 I do not see what business it is of anybody how he shall leave the rest. She is well provided for. I agree 52 that some millions going somewhere else might be capable of doing immeasurable mischief, but it is a thing that does not move me. The thing that does move me is when a woman in middle or advanced age is left completely helpless, left to the cold charity of a world that is not prepared to protect her, and the money which might have gone for her security is devoted to other and often worthless purposes.
That is a real wrong and the question is: Can it be remedied? I entirely agree with the noble Viscount who has just sat down that the remedy is not to be sought through the medium of the Courts sitting and adjusting how much shall be given this way and how much that. That is an entire mistake. It is not the kind of duty that the Courts like to discharge, and I am not at all sure that it is a duty they discharge at all well. The other method is much more practical: that is, that there should be a definite fraction of the estate to which the woman and the children should be entitled, which is the position at the present moment in Scotland and, I think, in France. If the noble Viscount had shaped his Motion for the purpose of securing approval for such a proposition as that, as things stand to-day I should have been prepared to support it, but to embark upon a roving Inquiry as to what may be the law elsewhere and what we are to do here seems to me to be a dissipation of energy.
I heartily hope that the views of the noble Viscount who has just sat down will never be carried out. He says the thing to do is to strengthen public opinion. I have always thought that one of the advantages of being dead is the fact that public opinion then ceases to operate upon you. I do not see how you are to make it effective. Possibly the noble Viscount, with his genius, has some scheme in his mind by which it can be done. But I do not think that is the way in which it can be done. The way I suggest, and I think it is the only way by which it can be done, is that you have to strengthen in every way you can the individual, independent, economic position of a woman and then it will not matter whether her husband leaves her money any more than whether she leaves her money to him. I should like, finally, to suggest to the noble Viscount who 53 proposed this Motion that if you are to inquire at all you certainly ought to inquire into the desirability of the husband having a share in his wife's property. There is no reason why you should go into this discriminative legislation. I therefore think his Motion, even if it be accepted, will advance this matter a very little distance, but I do thoroughly sympathise with the feelings that prompted him to bring it before your Lordships' House.
§ THE LORD CHANCELLOR
My Lords, I think that whatever may be the fate of the Motion which is before your Lordships' House, the noble Viscount who introduced it will feel that his effort has not been wasted in that it has given rise to a very interesting and instructive debate. The noble Viscount claimed indulgence on the ground that he was not versed in the technicalities of the law, but he proceeded to submit to your Lordships a wealth of information as to the law prevailing in various parts of the world which, I think, must have filled some of your Lordships, even who are lawyers, with envy. As the noble Viscount said in moving this Resolution, what he is proposing is in a sense not se much an innovation as a reversion to methods which formerly prevailed and have been deliberately abandoned. As your Lordships know, originally, when land was the main form of wealth in this country, land was granted to a man and his heirs and a man and his heirs entail male, and at first he could not alienate that property, or prevent it passing to the heirs or to the heir male, but it was not very long before the ingenuity of the lawyers and the ecclesiastics of those days was sufficient to defeat that rule and, first by imposing a trust upon the heirs and, in the case of an estate entail male, by an ingenious series of legal fictions in the form of fines and recoveries in the case of the right of a wife to dower by conveyances for uses to bar dower, the right of the heir or of the wife was completely defeated.
In the case of personalty, too, there was originally, by the Common Law of this country, a right in the children to prevent a man from leaving his personal estate away from his family when they were sane, but, as Lord Macclesfield some 200 years ago explained, that rule 54 being found extremely inconvenient and hard, it was by tacit consent of the whole nation abrogated and thrown into disuse and, although it was preserved in the custom of certain districts—I think the City of London was one, and Wales was another—by a series of Statutes, which finished some two hundred years ago, those customs were swept away and the complete liberty of testamentary disposition was assured in regard to personalty equally with realty. Although it is true, as the noble Viscount has said, that in other countries there is less liberty, it is not quite true to say that that comparative restriction has always been regarded with favour. A very eminent French writer, M. Troplong, in discussing the French law, to which the noble and learned Lord, Lord Buckmaster, referred, explained that France could not really be regarded as a free or civilised nation until she had acquired that complete liberty of testamentary disposition which we enjoy.
It may be, of course, that the modern tendency is to go back to the old rule, and I do not dispute that there are at times cases which may fairly be called hard cases and which would arouse a sense of injustice in any one who heard of them. The noble Viscount has brought some of those cases before your Lordships this afternoon. But I think it is true to say that, hard cases make had law both in the direction of legislation as well as judicial decision, and one has to be careful in trying to deal with a hard case not to establish worse wrongs than those which you are trying to cure. Your Lordships will realise that we are dealing here only with cases in which the testator—the deceased husband or father—has deliberately attempted to exclude his wife or children. Cases of intestacy are already dealt with and, therefore, you are dealing with cases in which the man who has an estate to leave is deliberately determined, if he can, to prevent his wife or children from having what public opinion would regard as a fair share. He therefore will undoubtedly take the best means he can to evade any law which is passed, and I do not think it would be beyond the ingenuity of the conveyancers of the day to devise a number of ways in which he might achieve this end.
55 I will not attempt to suggest a way round Statutes which have not yet been passed, but a man might, for instance, sell his assets in exchange for an annuity and the result would be that when he died there would be nothing left. There might be gifts and a variety of other devices by which the law might be defeated. If, on the other hand, you make the law so tight that there is no way round it you are very apt by its very rigour to discourage thrift, to discourage the tendency to save which is one of the things which it is most essential in the interests of the nation should be encouraged. It is true also, I think, to say that although there may be and there are occasionally hard cases under the existing law, the altered law might equally create hard cases. The noble Viscount has cited the instance of a man who deserts his wife to live with a mistress and leaves his property to the mistress and nothing to the wife. There are, unhappily, cases, especially perhaps in certain ranks of society, where the wife deserts the husband, goes off with another man and has a family by him. The husband, in turn, takes up with some other woman, who lives with him and is in all but name his wife and produces a family for him.
Under the law as suggested the wife who is to blame would be entitled to say that the children, who were not the man's children at all but who, under the decision of your Lordships' House in the case of Russell, would be regarded as his children if born when the parties were still legally married, were entitled to share in the estate of the man who in fact had nothing to do with them, while in the case of the mistress the children whom she had borne would be cut off from a share of what in such cases would be only a very small estate. I apprehend that the noble Viscount would say: "But I am giving discretion to the Court and in such a case the Court would not exercise its discretion." Your Lordships will see what that means. It means that in every case in which a man has disposed of his property in a way which his widow or any one of his children regards as unjust, there would be a hearing in Court in which the effort would be, on the one side, to show that the provision was unfair and, on the 56 other, to show that the circumstances whilst the husband was alive were such as to justify the alienation of the property. In other words, you would have in every case the washing of family linen in public in a way which I think would be very undesirable in the public interest.
There are other cases in which hardship might be caused. It unfortunately happens that not infrequently there is one member of the family who, in his or her youth, at least shows tendencies to extravagance and recklessness which make the wise father desire not to put it in the son's or daughter's power to have any property to dispose of because he knows that that property will be dissipated. By a system of trusts, which any competent lawyer can explain, provision is made by which nothing is left to that son or daughter, but at the same time there is power to keep him or her from absolute penury and privation. If that child had a certain right to a share in his or her father's property, in the first place the temptation to extravagance would be enormously increased, because one must not suppose that those who tend to encourage youth to extravagance would be ignorant of the prospects, and the result would be that the spendthrift would dissipate the fortune which the State had insisted on his having, and would be left without the provision which the wise parent would have desired to make. That, again, is an instance where such legislation as is suggested might defeat the very purpose which the noble Viscount has in view.
These considerations—and they might be multiplied—make one realise also, I think, the truth of what the noble and learned Viscount, Lord Haldane, said when he pointed out that in the great majority of cases at any rate the testator knows best the circumstances with which he has to deal. One has to go very cautiously before advancing at all in the direction which the noble Viscount suggests. It may be said that if there are cases of hardship, and if there are the difficulties which I have suggested, then there is a case made out for a Committee of Inquiry. I would like to indicate that in my view, and I think in the view of the Government, it would not be profitable at this moment to set up such a Committee as the Resolution calls for. I do not think that any one who comes, as I have done recently, into 57 your Lordships' House and sees the daily work which this House has to do, can fail to be impressed with the great amount of voluntary labour that is undertaken by members of this House, sometimes with very little recognition outside its walls. There are Private Bills, there are Joint Committees, there are Select Committees, there is the necessary attendance at the meetings of this House, and, whilst I recognise that your Lordships are always ready to undertake labours which will tend to the public weal, I think we must be careful not to multiply Inquiries unless we are quite sure that they are going to have a fruitful result.
Quite frankly, I do not think that in the present position of this Parliament and in the present state of public business there is any real prospect of the Government being asked, or finding itself in a position, to introduce legislation to carry out the purpose which the noble Viscount has in mind. I can only suggest that a Select Committee, in trying to frame such a Bill, would not really serve any useful purpose. I hope the noble Viscount will not think me unkind if I say that the societies which are particularly interested in the subject may fairly be said to have had their fair share of Parliamentary time within the last few months, and, indeed, are going to have it in the next few weeks. In those circumstances, whilst the debate to which we have listened is one which I think has been most interesting—we are indebted to the noble Viscount for bringing forward the subject—I hope he will see his way not to press the Resolution which he has put forward for a Select Committee.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I only desire to say one or two words on this very interesting subject because I cannot help thinking that there are really two entirely distinct questions involved. One is the question of whether anything ought to be done to interfere with testamentary dispositions, of which many people would disapprove, and the other question is whether anything ought to be done to prevent a wife, or a husband for the matter of that, who is left absolutely destitute, from being sent to the workhouse while the property of his or her spouse is being enjoyed by somebody who has no claim whatever upon 58 the deceased person. It seems to me there are two entirely distinct questions. Everybody is entitled to do what he likes with his own property; that is quite true, but we do recognise during a man's lifetime that he is bound to support his wife and children, and we make orders by the Courts upon him to do so. It does not seem to me an extravagant proposition to inquire whether that right should not be extended on his death to his property so that they shall be prevented from becoming complete paupers.
My noble and learned friend Lord Haldane, with a caution, an anxiety not to charge the State with any fresh duties and a reluctance towards any change, which, as a Conservative, I highly admire, was on this occasion, as on many other occasions, on the extreme right; of this discussion. I recognise with him the great danger of interference and of increasing the functions of the State, and I trust that he will impress this very strongly upon those who sit near him. The noble and learned Lord, Lord Buckmaster, took rather a different view. He said that there were cases of hardship, but, in the first place, he wanted the remedy to be extended to the case of husbands as well as wives. My noble friend's Motion applies to both husband and wife, and makes no distinction between the two. In the second place, Lord Buckmaster thought this was the wrong remedy, because he considered that the right plan was to make the wife self-supporting. I quite agree, but may I put one case to him which I think he must have had in his mind in one part of his speech? I refer to the case of a woman who, it may be, was capable of earning her living and was doing so before her marriage. She marries and has all the cares of a house and children, and for many years desists from all money-making employment, as it is desirable that she should do, in order to look after her house and children. Then suddenly the husband dies and she finds that the whole of the resources on which she was living have gone to someone who has no claim upon the man at all. Surely that is a case of great hardship, and at any rate calls for some kind of consideration by your Lordships' House.
I need not say that I have the greatest sympathy with, and have listened with the closest attention to, my noble and 59 learned friend the Lord Chancellor. Everything that he said was, as one might expect, wise and prudent, and I agree with him—no one agrees more heartily—in impressing upon your Lordships the maxim that hard cases make bad law, and that you cannot legislate for an exceptional hard case here and there. It may be that he made out a case against a Select Committee—on that point I express no opinion—but I venture very respectfully to appeal to him as to whether he does not think that there is a case for some kind of inquiry. It might be an inquiry by himself, or a Departmental inquiry. There has been brought to my notice, as to my noble friend's notice, a number of cases which I am quite sure that my noble and learned friend on the Woolsack would agree with us in regarding as very hard cases. They may not be very many in number. I have no means of knowing whether the number is large or small, but such cases exist, and I do feel that there is a case for an inquiry of some kind. The matter may not be suitable for a Select Committee. At this stage, and in this Parliament, a Select Committee's Inquiry would be too lengthy, and would not lead to anything. I felt the force of everything that fell from my noble friend in that connection. But it is a little unfortunate that we should have to say that here is an undoubted hardship which everyone of us must feel, that a woman who has been supported by her husband during his lifetime and supported, it may be, by an order of a Court, should have no claim on his estate the moment he is dead, and should be obliged to go to the workhouse and accept poor relief.
That seems to me to be a very hard case, and I venture respectfully to ask my noble and learned friend and the Government to consider whether there is not some form of inquiry that they might institute to ascertain the extent of this grievance, whether it is large or merely exceptional, and to see whether it is not possible to devise some method of dealing with it if it turns out to be of a sufficiently extensive character to demand some legislative remedy. It is only for these reasons that I have ventured to rise and make these few remarks. If I may say so with the greatest respect, my noble and learned friends—I do not include the noble and learned Lord on the Woolsack—have perhaps treated the noble Vis- 60 count's Motion as being perhaps not so meritorious as it really is in reference, at any rate, to a certain number of cases.
§ LORD MERRIVALE
My Lords, with regard to what my noble friend who has just spoken has said, I am sure that he will appreciate that what he is suggesting is an almost microscopic thing compared with that which has been indicated by the noble Viscount who has brought this matter before the House. That to which my noble friend Lord Cecil is referring is apparently an extension of the power of a magistrate's court to direct that the sum, which I think cannot exceed £2 a week, which may be ordered to be paid by a defaulting husband during his lifetime, may also be ordered to be paid out of his estate, if he has any, after he is dead. That is a microscopic proposal compared with the (I am afraid) rather revolutionary proposal which the noble Viscount outlined in bringing forward this Motion. It is not a great change at all. I should have thought that if there were these abundant cases, about which I confess that my experience leaves me somewhat suspicious, then this is a matter which would come to the attention of the Home Office through the Stipendiary Magistrates and the other justices throughout the country, and as to which, if the case were made out, the advisers of the Crown, and in particular the Home Secretary, would not hesitate to act, as they do upon so many occasions in regard to matters of that kind. I must say that I cannot regard this as any good ground for a roving Inquiry into a subject of such tremendous consequence as that which is opened by the Motion of the noble Viscount, and I would add that the arguments which came from the Front Bench opposite, from my noble and learned friend who spoke for the Liberal Party and from the Woolsack seemed to me conclusive against any such proposal. I think that it would do anything but good.
§ VISCOUNT ASTOR
My Lords, I hope that your Lordships feel that we have not wasted the afternoon, and I personally do not regret having raised a discussion on this subject. I should like to thank your Lordships very much for the courteous and kind way in which you have listened to a layman dealing with a subject which, as he fully realised, is 61 complex and in some ways controversial. I could not help feeling that the remedies that were suggested by noble Lords opposite were inadequate. The noble and learned Viscount, Lord Haldane, hoped that public opinion would prevent testators leaving their property in a way that created the type of injustice that I quoted, but, as the noble and learned Lord, Lord Buckmaster, indicated, public opinion does not really operate after a man is dead. As regards the remedy which Lord Buckmaster suggested, I agree entirely with him in looking to the day when there will be fuller and greater opportunities for women to support themselves, but I agree with him also that the day is some way off. In any case, even if we had so altered public opinion that it would be easier for women to support themselves than it is to-day, many cases of hardship undoubtedly occur at a time of life when it is practically impossible for a woman to support herself.
The noble and learned Lord on the Woolsack has indicated that the Government would resist the Inquiry suggested, and in the circumstances, of course, I will not press it. I fully realise that, with the amount of business that has to be dealt with and with the fact that a year hence there will be a General Election, this would be an unsuitable occasion for what would be perhaps a prolonged Inquiry. I do hope, however, that the noble Lord and others will feel that a case has been made out for some action at some time. Exactly what that action should be I am not going at this stage to suggest, but the fact that in other countries measures do operate fairly, without hardship, and do prevent the sort of hardship which I have indicated, justifies, at all events, a re-examination of our own position and the Statutes in force to-day. I feel that in any case the debate which we have had this afternoon shows the lines on which remedial legislation, if any be brought in, should be based. I beg leave to withdraw my Motion.
§ Motion, by leave, withdrawn.