Sitting of 23 February 1837

MINUTES.
Petitions presented. By Lord CLONCURRY, from Saint Micham, Dublin, for the Adoption of Poor Laws (Ireland).—By the Earls of DEVON, SHAFTESBUBY, Lords KENYON, REDESDALE, the Bishops of BATH and WELLS, and EXETER, from Dunstable, Exeter, and other places, against the Abolition of Church Rates.—By Lords STRAFFORD, BROUGHAM, the Earl of RADNOR, and the Marquess of CONYNGHAM, from Brighton, Lincoln, and

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other places, for the Abolition of Church Ratet.—By Lord CLONCURRY, from Cong, for the Abolition of Tithes (Ireland).

WILLS BILL.
Lord Langdale: I beg leave to move, that the Bill for the Amendment of the Laws with respect to Wills be now read a second time.
It is so important to the welfare of families, and to the general interests of the community, that men should be able to dispose of their property by will, and that their lawful intentions should be faithfully carried into execution after their deaths, and the laws under which these objects are to be effected are now attended with so much doubt and perplexity, that I am induced to hope that an attempt to introduce some improvement will not be considered to require any apology.
The subject has of late years been very much considered, and has been carefully investigated by two distinct Commissions — by the Real Property Commission, which was appointed in 1828, and by the Ecclesiastical Commission, which was appointed in July, 1830. It was part of the business of the Real Property Commission to consider the law relating to wills of real estate; and part of the business of the Ecclesiastical Commission to consider the law relating to wills of personal estate; but in such a case it was impossible for either Commission to avoid touching upon something which was within the province of the other; and the result has been, that upon several points comprised within the general question, the public has the benefit of the investigations and recommendations of both Commissions.
The Report of the Ecclesiastical Commission was made in February, 1832. The fourth Report of the Real Property Commission, which is upon the subject of wills, was made in April, 1833; and with a view principally to carry into effect the recommendations of the Real Property Commission, a Bill was prepared by Mr. Tyrrell, a very able and distinguished member of the Commission, and that Bill was brought into the House of Commons in the year 1834. It was referred to and considered in a Select Committee, but did not then proceed further. In the year 1835 it was introduced into the House of Commons, and passed the House after having been again referred to, and, as I am informed, very carefully considered in a Select Committee. It was then brought up to this House, read once, and referred to
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a Select Committee, from which it received great attention, but no report was made.
My Lords, I had the honour to present the same Bill to your Lordships early in the last Session, and, though I had every reason to think that great pains had been taken to investigate the subject fully, yet being of opinion that in such a case no caution could be superfluous, and being certain that I might rely on receiving advice and assistance from the members of a learned and liberal profession, I caused several copies of the Bill to be sent to many eminent men engaged in different branches of the law, and from them I received, as I had expected to do, many valuable communications—some of them reached me at a late period of the Session—and that, together with other circumstances, prevented me from laying the subject in detail before your Lordships in the course of the last year.
These communications have been carefully considered, and in consequence of them, and with the assistance of Mr. Tyrrell, some alterations, though not to any great extent or of any considerable importance, have been made in the Bill which I now submit to your Lordships in what, I hope, may be considered an improved state.
The general object of the Bill is to collect the provisions of several statutes relating to wills into one Act of Parliament, and at the same time to make in these provisions such modifications as may afford additional securities for the prevention of spurious wills, and additional facilities for making genuine wills.
The particular provisions relate to the property which may be disposed of by will; the persons by whom wills may be made; the forms which are to be observed in making them; and the modes of revoking, altering, and reviving them; and to these provisions, which necessarily belong to the subject, it has been thought right to add others for correcting certain rules of construction, by which the lawful intentions of testators are often defeated; and there are some incidental matters which may, perhaps, be more conveniently explained on a future occasion.
According to the policy of this country, it is desirable that the property which a man may dispose of by his will should comprise every thing which he has—i. e. every thing he has for an interest which endures beyond his own life, and which,

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in default of any disposition made by him, would devolve upon the person who is designated by the general law as his real or personal representative, and, generally speaking, the law as it stands, gives this power of disposition—but there are some exceptions, and one of the objects of this Bill is to remove those exceptions. I will endeavour to explain the nature of them to your Lordships. There are some customary freeholds or tenant rights and also, as it is supposed, some copyholds of which the legal estate cannot at present be devised: any equitable interest, however, in the same estates may be devised, and consequently when a man wants to make such estates subject to his will, he is obliged by some direct or indirect means to constitute a trustee who may voluntarily, or under the compulsion of a Court of Equity, dispose of the estate as the real owner may by his will direct. What is proposed is, to make the legal estate in property of this nature pass directly by the devise without any of those expensive and sometimes hazardous contrivances which are now necessary. Again, estates for others' lives, estates pour autre vie as they are called, are in general devisable by the law as it now stands—but if the property be copyhold and there be no special occupant, the estate is not devisable, and this Bill proposes to remove that exception. Again, almost all contingent and future interests are now devisable, but there is an exception if the testator be not, when he makes his will, ascertained to be the person in whose favour the contingency, if it happens, must fall. Thus, if an estate be limited to two sisters and the survivor of them, and, after the death of the survivor, to such other person as the survivor may give it by will,—whilst the two sisters are both living, it cannot be known which will survive; and I will suppose that one of them in the expectation of surviving, makes a will giving the estate which in that event she will be entitled to dispose of, and after making that will, actually becomes the survivor, and competent to dispose of the property; yet, if she dies in that state of things, without re-executing her will, the property will not pass, and for this it is proposed to give a remedy. Again, although reversionary interests are now devisable, rights of entry are not; and this strange case has happened and may again occur. An estate is vested in one man for his life; the reversion is in
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another who may effectually devise it if he pleases. I will suppose him to make his will for that purpose, and to die without knowing that anything has occurred to prevent its legal operation. Unfortunately, however, the tenant for life without the knowledge of the reversioner has done one of the several acts which may in law occasion a forfeiture of his life-interest. This act at the same time converts the reversion into a right of entry which is not devisable, and the testator's will is as to that estate wholly frustrated, and this is an evil which the present Bill proposes to correct.
My Lords, the propositions which I have mentioned though important in themselves, and in relation to the particular cases to which they may be applied, cannot I think be represented as of very frequent and general occurrence. The cases occasionally occur; they give rise to well-founded complaint, and bring some reproach upon the law; but neither in respect of their frequent occurrence nor in respect of the amount of property likely to be involved do they at all approach in importance to the next proposition which is made in reference to this part of the subject.
As the law now stands, a will does not pass any real estate which the testator is not intitled to, both at the date of his will and at the time of his death; it has no effect upon any real estate which may have been acquired in the intermediate time. It is probable that the rule, in this respect, arose partly from the construction given to the word "having" in the Statute of Wills, and partly from the desire which has been felt to favour the heir; but, beyond all doubt, it defeats the intentions of testators. A man may, in express words, devise all the real estate he possesses at the date of his will, together with such other real estate as he may afterwards acquire and be intitled to at the time of his death; only that which he had both at the date of his will, and also at the time of his death, will pass, and not that which he acquired after his will. He may in his will recite, according to the truth, that be is in treaty for the purchase of a particular estate, and expects to become the absolute owner by the purchase, and then declare that he is buying the estate with a view to the benefit of a particular person to whom accordingly he devises it. He afterwards does complete his purchase

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and become the owner, but, without re-execution, the will is wholly ineffective as to this estate. Nay more, a man may have entered into a binding contract for the purchase of an estate which in equity is justly considered as his. Being his, he devises it; and if he were then to die, the equitable interest would pass to his devisee—but during his life, he obtains a conveyance of the legal estate; and, if from some circumstance of family convenience, or it may be from some whim of the conveyancer not knowing of the will, the legal estate should be taken in a form different from that of the equitable estate obtained by the contract, the will fails and the devisee is disappointed. And what seems more extraordinary than this, a man may be possessed of the same real property, both at the date of his will and at the time of his death, so that by the ordinary rule the estate would pass; yet if in the interval he should, with the desire, and, for the avowed purpose of strengthening his own title, and by that means making his gift more secure, have done certain acts as he thought for further assurance, the effect of those acts (as the law now stands), may have been to strengthen his own title, and, at the same time, to defeat the devise for the sake of which alone he desired to strengthen his own title.
These and other anomalies have been constantly complained of; and judges have lamented the necessity under which they were, to act upon rules which they disapproved of, and which they could not evade. The Real Property Commissioners have, therefore, recommended, and this Bill proposes, that a man should be able to dispose by his will of all the real estate which he may be intitled to at the time of his death, although he may have become intitled to it after the date of his will.
Such are the alterations which it is proposed to make in the property which may be disposed of by will.
As to the persons by whom real estate may be devised, it is not proposed to make any change; but, at present, personal estate may be bequeathed by boys of fourteen and girls of twelve years of age, if they should be of sufficient discretion. It was proposed by the Real Property Commission, that no will of any sort should be made by any person under the age of twenty-one years; and the Bill, when introduced into the House of Commons in 1834 and 1835,
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contained a clause to that effect. In the Select Committee of that House, it was considered that persons under twenty-one might be intrusted to make their wills, and seventeen was the age there proposed and adopted. This change, however, was not acquiesced in by the House, and the age of twenty-one years was restored to the Bill, and remained in it when it came up to this House. The present Bill proposes twenty-one years as the age of persons who make wills of lands, and seventeen years as the age of those who make wills of personalty; and, if it should be your Lordships' pleasure that this Bill should go into Committee, it may be considered whether this is not a convenient arrangement by way of compromise. The law, as it stands, makes the property of an intestate devolve in a manner which, notwithstanding some objections, is, I believe, generally approved in this country; and the intestacy of a young person under twenty-one years of age cannot be looked upon as a considerable grievance; but there are cases (of illegitimate children particularly), in which with reference to the persons by whom they have been brought up and kindly treated, it may be thought desirable to give a power of making a will at an earlier age than twenty-one years.
The provisions of this Bill, with respect to the mode of executing wills, are next to be considered.
Now, my Lords, of all acts whatever by which property may be disposed of or affected, it may justly be said, that at the very times when the acts are done, you should secure the means of authenticating and establishing them on future occasions: and that which is true of all such acts, is more particularly important in the case of wills, the making of which, though a most important duty, and one which every man ought to perform in his time of health and strength, is so frequently delayed to the last moments of life—moments too often of agitation, debility, and destitution; when the man may not be able to procure the assistance which, at another period, he might have commanded; and, when he may be surrounded by interested and artful persons, willing, if they safely can, to withdraw the testator's estate from the proper objects of his bounty, or from the persons whom the law has designated as his proper successors in the absence of any expressed will of his own to the contrary.

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It has, therefore, never been doubted, but that in the formation of wills, it is desirable to have some means of authentication provided—some forms and ceremonies observed, when the wills are made—and it will probably be admitted, that for the purpose of securing in the best mode you can the observance of them, the directions for the forms and ceremonies which you require should be clear, uniform, and simple, to the utmost extent which is consistent with the security you desire to establish.
Considering, that to prevent the imposition of spurious wills, is the reason for requiring forms; and that wills may be genuine, i. e. may be true expressions of the testator's intentions in the absence of the forms, or of some of the forms which you may direct, one would wish it to be practicable to direct the observation of certain forms for security without absolutely excluding the validity of wills in which those forms had not been observed, in cases where in the absence of the forms full and satisfactory evidence of the genuineness of the wills could be produced.
With respect to wills, formal and genuine, informal and spurious, are not convertible terms; and it seems, I confess, but a coarse and clumsy mode of legislation upon such a subject as wills, often made in extremis, to say, that unless certain forms are observed, the will shall be wholly null. But, after careful reflection on the subject, and the topics necessarily connected with it, I am afraid that, at present, all that can be done to avoid the frustration of genuine wills, whilst you are imposing forms to prevent the imposition of spurious wills, is to make the directions for those forms as clear, uniform, and simple, as the nature of the case admits of.
What then are the forms which appear to be necessary? It is plain that writing affords the most useful means of authentication: but not only may a writing be forged, but a writing, even in the hand of the testator, may purport to express an intention, when the writer in making it contemplated only a project: the writing may seem to express a will or determination concluded upon, when in truth it was written only as a draft to facilitate meditation and future consideration. It appears, therefore, that writing alone does not afford sufficient security; and even a writing with the signature of the testator
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at the foot, which would indicate a conclusive act, does not afford any security that the writer was, at the time when he wrote and signed, of sound mind or free from all undue influence. In addition to the writing and the signature, it is desirable to have witnesses of the act, attesting it at the time when it was performed.
And it is scarcely disputed but that these things, viz.—writing—the signature of the testator—and the attestation of witnesses—are the acts which the law should require to be done for the authentication of wills. But these acts, instead of being required to be done in a clear, simple and uniform manner, are by the present law required to be done in modes which have been justly enough said to exhibit "a matchless variety." The Real Property Commissioners have stated ten different modes of making wills, sanctioned by the law of England, and depending on the various sorts of property intended to be disposed of. I do not intend to trouble your Lordships by stating them all; but shall content myself with adverting to those which are most contrasted to one another—the mode of devising freehold land—and the mode of bequeathing ordinary personal estate.
Freehold lands are to be disposed of by will, executed according to the forms directed by the Statute of Frauds, which passed in the year 1676, and which provided, that wills of land should be in writing, signed by the testator, or by some other person under his direction, and attested by three or four credible witnesses in his presence.
Personal estate, on the other hand, may be disposed of by any writing, however informal. The ecclesiastical courts have exclusive jurisdiction over this matter, and may consider as a will that which appears in the shape of a letter to a friend or an agent, or of a loose memorandum, or of a series of detached memoranda, if it be deemed that such writings afford sufficient means of collecting an intention.
Thus a freehold interest in land, however small, cannot be disposed of by will without all the forms required by the Statute of Frauds, whilst an interest in personal estate, however large, passes by a will for which no form but writing is required.
Both methods have been disapproved of by eminent judges. It has been regretted that the Statute of Frauds directed forms

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so strict, in language so loose, for wills of real estate, and that the Legislature did not require some form for the validity of wills of personal estate. The discrepancy between the modes of executing wills of real, and wills of personal estate, and the grave inconveniencies arising from that discrepancy, have been from time to time pointed out and lamented, and have been noticed at length in the Reports of both the Real Property and the Ecclesiastical Commissions.
I shall submit to your Lordships only one case, for the purpose of illustration. A man having ample property, real and personal, and a large family, makes his will for the purpose of providing for all his children: he settles what he thinks proper for the benefit of his heir—he directs all the rest to be sold, and the produce to be divided amongst his younger children in certain shares; or knowing the different habits and characters of his younger children, he provides for some by giving them portions of his real estates, and for others by giving them sums of money. He expresses himself clearly and distinctly, so that there is no doubt of his intention. He signs his will, and procures witnesses to attest his signature; but knowing that two witnesses are commonly sufficient to attest a legal act, and not aware that three witnesses are required to attest the execution of a will, he procures no more than two; and the consequence is, that the will, though good as to the personalty, wholly fails as to the real estate. To ears not familiar with such things, it seems strange to say that the will, though clearly expressing the intention in every part, is partly good and partly bad, but so it is, as the law now stands. The real estate, intended for the younger children, descends upon the heir in addition to the provision expressly made for him, and the younger children, whose provision was to consist of real estate only, are left penniless.
I might mention other cases of striking inconvenience arising from the want of uniformity in the mode of executing wills relating to different sorts of property, but it seems unnecessary. It is clearly desirable that the validity of all wills should depend on circumstances of the same sort; and as I apprehend that no one would agree to sanction informal wills of real estate, it follows that some forms should be required to give validity to wills of personal estate.
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It is not to be denied that the Ecclesiastical Courts have sometimes been able to collect a clear intention from the informal and imperfect papers which they have held to constitute a will; and, consequently, that the intentions of some testators may be disappointed by excluding such documents. But in considering the propriety of a proposed general rule, it is necessary to estimate the probable inconveniences to arise from adopting or rejecting it; and on a fair consideration of all the circumstances, both the Commissions concur in recommending that a formal execution of the wills of personal estate should be required.
And supposing that your Lordships may be disposed to concur in an enactment, providing for the execution of all wills, in an uniform manner, the next consideration is what the form should be? the forms required for wills of lands by the Statute of Frauds, or any other?
There is not, as I apprehend, and as I have before stated, any doubt as to the necessity of writing—signature—and attestation of witnesses,—but the Statute of Frauds in directing the attestation of witnesses says, that the will is to be subscribed by three or four credible witnesses in the presence of the testator; and from this clause great litigation has arisen, and continually arises. The questions relate to the number of witnesses—to the legal effect of the word "credible"—and to the direction that the witnesses shall subscribe the will in the presence of the testator.
Both Commissions recommend, that the number of witnesses shall be reduced from three to two, for reasons which they have stated, and which seem to be sufficient to warrant their conclusion. In most legal instruments the attestation of two witnesses is thought sufficient. Two witnesses are usually called in, and are often required to subscribe the attestation, and this to such an extent, that a sort of habit of attesting by two witnesses has been acquired, and very many wills have been frustrated in consequence of testators having unfortunately conformed to that habit. It is obviously less difficult to procure two than three witnesses in cases of emergency, and this Bill, pursuant to the recommendation of the Commissions, proposes, that an attestation of wills by two witnesses shall be sufficient.
As to the word "credible"; it is cer-

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tainly desired to have the means of examining witnesses who know the fact, and of whom you have reason to believe that they will speak the truth; but this object cannot always be secured. At the time when the will is required to be proved, the witness may be dead, or may have become insane. He cannot be examined, but the law permits his attestation, and the circumstances attending it (as far as they can be), to be proved in another way. But besides, a witness who has attested and subscribed the will may be interested under the will, as a legatee; and because he is interested, he is not, by the ordinary rules of evidence, considered to be a credible witness to prove the will by which his own title to a legacy is to be established. To meet the very great inconvenience which arose from excluding the testimony of witnesses who were legatees, a statute was made in the 25th year of Geo. 2nd., and thereby any devise or legacy to a witness attesting the will was made void, and the interest of the witness being thus destroyed, he was admitted to prove the execution. In other words, the Legislature, in order to avoid the great injustice of destroying the whole will by excluding the testimony in its favour, attempted to commit the less injustice of destroying the legacy, which was but a part of the will: but, in truth, laws such as this, are not executed. It has often happened that the only persons present, and therefore the only persons who could have attested the execution of the will, were relations, friends, or servants to whom the testator has given some token of his bounty, or some memento of his affection To make such gifts void, is revolting to the feelings of mankind; and, whatever the law may declare, the sense of interest, if there be any to bias him, remains in the mind of the witness. He believes, as from the ordinary practice in such cases he must, that the executors and residuary legatees will concur in giving him that which the law takes away; and, it is plainly their interest to encourage that belief which is more dangerous to the real interests of truth, when it is made to depend not on the validity of the will but on the favour of the persons most interested under the will. I ought to state, that neither of the Commissions has proposed any alteration in this respect; but the Real Property Commission has stated reasons for an alteration which seem
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to be sufficient; and surely a law which the ordinary feelings of men do not permit to be executed should not be allowed to remain. But, besides that a man who has an interest under the will is not considered credible as an attesting witness, the will is liable to be rendered inoperative by the fact of a witness having been convicted of an infamous crime, and having for that reason become incompetent to give evidence in a court of justice. No doubt a man may have been guilty of an infamous crime and be a proper object of punishment, and may nevertheless be worthy of belief when called to prove a particular fact; but the law declares him incompetent, and the will of a testator who never heard of the offence, or of the consequence, and who upon a sudden emergency could procure no other witness, is wholly frustrated by the operation of that law.
What is proposed by this Bill, is not any alteration in the law of evidence upon any other, or even on this occasion; but that a will attested by a witness who cannot legally be examined by reason of his interest, or any other cause of incompetency, shall be treated as a will attested by a witness who afterwards died or became insane. It has been suggested, and I believe justly, that this rule if adopted will require some additional provision to secure the testator from fraud, which might be practised by persons filling the characters of witness and legatee, and not subject afterwards to personal examination. The object, your Lordships will see, is if possible to preserve both the will and the legacy, in cases where the legatee is made a witness. I am not sure, that the object can be effected, but it seems worth while to try; and I shall be happy to consider, and if satisfied, to acquiesce in any alteration in the proposal now made, which may be likely to accomplish the object. If your Lordships permit the Bill to go into Committee, the subject will deserve great consideration.
The direction in the Statute of Frauds, that the attestation and subscription of the witnesses shall be made in the presence of the testator, has given rise, and even now gives rise, to great litigation. The question is, whether it is necessary or useful?
It is very common for persons who have been percipient witnesses of the execution of a legal instrument, not to sign their attestation at the same table, or even in

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the presence of the party who has executed it; but to take the instrument into an adjoining room and there sign the attestation. This mode of proceeding does not in any way affect the validity of a deed; but if it is adopted in attesting the execution of a will, the validity of the will may be wholly destroyed, because the statute requires the attestation to be subscribed in the presence of the testator—and inconveniences so great have occurred, and have been threatened, in consequence of this provision, that in this, as in other cases of inconveniences occasioned by the law, the courts have been impelled to use their best endeavours to defeat the plain meaning of the Act of Parliament, by giving to the words a construction which it is scarcely possible to suppose the Legislature intended—and it has been held that the words "in the presence of the testator," do not mean in the same room, or even in the same house with the testator, or even within the actual sight of the testator; but they mean being in such a situation that, if he would, he might have seen the witnesses sign the attestation. The testator may be sitting in his carriage in the street, and the witnesses may sign the attestation in a house—if by design, or even by accident, the carriage is so placed that through the window he might have seen the attestation signed, it is enough; it is not made a question whether he did see. If the testator is in bed in one room, and the witness sign the attestation in an adjoining or any other room, the inquiry is not, whether the testator saw the attestations signed, but whether he might have seen, if he would. In what position was the testator lying in his bed? where was the table on which the witnesses signed the attestation? were the doors or windows between the room where the testator was and the place where the witnesses signed the attestation, open or shut? was there any hole in the wall or in the floor? in short, could a straight line, by any means or through any aperture, have passed without interruption from the head of the testator to the place where the witnesses signed? or if not, was there a mirror or looking-glass so placed, that by the laws of optics a reflected ray of light might have enabled the testator, if he would, to see what was doing? if yes, the will was good; but if no, the will is bad, and the intentions of the testator are wholly frustrated.
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Now the probable reason why it was directed that the attestation should be subscribed in the presence of the testator was, that the witnesses might be prevented from substituting a spurious paper instead of the will—a very improbable risk, the protection against which was lost from the moment that constructive presence was substituted for actual presence. No bad consequence has followed from the loss of that protection, but the inconvenience of great litigation and uncertainty has arisen from the question what constitutes "presence" in particular cases, according to the constructive meaning which has been given to that word—and it is conceived that this inconvenience may be removed, and that no benefit will be lost by omitting from the directions for attestation contained in the Statute of Frauds, the words "in the presence of the testator"—and this Bill accordingly proposes to omit them.
My Lords, it is to be observed, that the Statute of Frauds, whilst it provides that the witnesses shall attest and subscribe in the presence of the testator, does not provide that they shall be present together at the time when the testator signs or acknowledges the will. The consequence of this is, that the testator may sign the will in the absence of all the witnesses; and may afterwards acknowledge his signature, at successive intervals of time, to different witnesses, who may never have seen each other. Chief Justice Willis considered this to be an inlet to great frauds and impositions, and he thought it desirable that the witnesses should be present together, and be a check upon each other. Other judges have expressed the same opinion, and on this ground the Real Property Commission proposed, and it is provided by this Bill, that the signature of the testator shall be made or acknowledged by him in the presence of witnesses present at the same time. In this provision there can be no question as to any constructive presence; anything vague or uncertain in the word presence is limited by this,—that whilst present they are to be percipient witnesses of the signature or acknowledgment.
The next subject to be considered is the revocation of wills, and the mode of reviving them after revocation.
At present there is a great variety of rules applicable to this subject; and from this variety great inconveniences have

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arisen: a will is often revoked as to part of the dispositions made by it, and left in operation as to the rest, and thereby the general intentions of the testator are frustrated. No alteration is proposed to be made in the rule whereby a woman's will is held to be revoked by her marriage. But it is recommended by the Real Property Commission, that the rule adopted from the Ecclesiastical Courts in modern times, by which a man's will is held to be revoked by his marriage and the birth of a child, should be altered. The reason of that recommendation is, that the Courts have often found that the rule operated against the intention of the testator, and have held that the presumption of a change in the testator's intention from the change in his circumstances may be rebutted by other circumstances. The testator may by his will have provided for a future wife, or for future children; in that case he contemplated his change of circumstances when he made his will, and it would be absurd to hold the will revoked by that change. He may have an heir apparent at the time when he makes his will, and revoking the will by a subsequent marriage, followed by the birth of a child, would give all the real estate to that heir apparent, which could not be for the benefit of the children of the subsequent marriage; and other cases of more complication have occurred, from which it is very often doubtful whether the Courts will or will not consider particular circumstances sufficient to rebut the constructive revocation of the will by marriage and the birth of a child; and from this cause, uncertainty of title and litigation to a considerable extent, have arisen, and the inconveniences of the rule have been considered to preponderate over its advantages.
The Bill provides that any will may be revoked by another will or writing duly executed, or by destruction with intent to revoke, and that alterations by interlineation shall not be valid without signature and attestation; and it is provided that revoked wills shall not be revived without re-execution, or a codicil showing an intention to revive.
The Bill, after providing for these several objects, contains some clauses which may be considered as more clearly defining the effect on the testator's property, of wills to be made under the law now proposed. If, after the date of his will, a man makes a conveyance of his estate, reserving some
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interest which he possesses at the time of his death, it is provided that the will shall operate on that interest. It is next provided that the will shall speak at the time of the testator's death. If he has real estate at the date of his will, and other real estate at the time of his death, and by his will has devised all his real estate, the will speaking at the time of his death means all the real estate he then has, and not merely the real estate which he had at the date of his will. Further, this Bill provides, that a residuary devise shall include lapsed and void devises. This follows almost necessarily from the proposed rule to make the will speak from the death, but it has been thought better to remove all doubt by making the declaration.
I ought, perhaps, to have stated at an earlier period what this Bill proposes to do with respect to powers of appointment to be executed by will. This subject is not mentioned in the report but is of considerable importance.
A man may if he pleases give an estate to such persons as another shall appoint, and may say that such appointment shall be made, or such power be exercised by a will executed in a particular manner without any witness, or with one witness, or any number of witnesses, of any particular quality; and if the mode in which the power is directed to be exercised is not strictly followed, the appointment fails: and questions followed by great litigation, very often arise between those who claim under the appointment and those who claim as in default of appointment; and it is conceived that great benefit will arise from enacting that powers to be executed by will shall be held to be duly executed, whenever a will purporting to be made in execution of the power shall be executed according to the forms required for a valid will by the general law.

The Bill also provides that a general devise of all the testator's estates shall be held to include estates over which he has a general power of appointment. The importance of this provision will appear from the statement of one out of several cases which have actually occurred. A man having lands in fee only in five parishes, lands over which he had a general power of appointment only in three parishes, and both lands in fee and lands over which he had a general power of appointment in one parish, devises all his lands in the nine parishes, naming them. The lands in fee

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passed of course—the lands over which he had the general power of appointment in the three parishes passed, because as he named the parishes he must have meant the lands within them, and those were only lands over which he had the power of appointment; but in the one parish in which he had lands of both sorts, the lands over which he had the power of appointment did not pass, because the lands in fee in the same parish were sufficient to satisfy the words of the devise. It is impossible to believe that the testator did not intend these lands to pass; and the intention of the enactment now proposed is to prevent such disappointment of intention in cases of the like kind.
The clauses in this Bill which are next to be noticed are those which relate to the construction and effect of certain words. There are certain constructions of words which the Courts are at present obliged to adhere to, and have no power to alter; but being acknowledged to produce an effect which, if uncontrolled, is in all cases contrary to the intention of the testator, endeavours are constantly used to find out other words and circumstances to control them: and to what extent those other words and circumstances may be available for that purpose is always a question attended with doubt and difficulty, and is often a source of great uncertainty in titles. I do not know how I can explain the nature of the proposed enactment better than by stating examples of the cases which occur. The words lands and tenements do not of themselves designate the quantity of estate for which they are held. They are equally applicable to lands and tenements held in fee and to lands and tenements held for years only, and when found in wills they clearly ought to be applied to both; but the construction which the Courts are now bound to give to the words varies according to circumstances. If a man having lands in fee only in one parish, lands for years only in another parish, and both lands in fee and lands for years in a third, devises all his lands and tenements in the three parishes, the lands in fee pass by the will, and so do the lands for years in the parish in which he has no lands in fee, but the lands held for years in the parish in which he has both lands in fee and lands for years do not pass. The case is very like that which I have mentioned upon the subject of land over
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which there is a general power of appointment, and the plain and manifest intention of the testator is equally violated, and is by all judges admitted so to be. It is therefore proposed to be enacted, that a general devise of lands shall be held to include leaseholds.
Again, because the words lands and tenements do not of themselves designate the quantity of estate or interest for which they are held, and in common parlance when a man speaks of his house or of his lands as property which he has a right to dispose of, he means his whole right to it, it often happens that a man making his will without competent legal advice, gives his house or his lands at such a place to such a person without adding any word of limitation or inheritance. To common understandings, and out of the Courts, his meaning is clear and obvious, to give all his interest in the house or in the lands to his devisee. But the rules of construction which have unhappily been established intervene to thwart the plain intention; and if there be no other words in the will to help that plain intention, the devisee takes only an estate for life. Lord Mansfield and other eminent judges have admitted, that in almost every case where by law a general devise of lands is reduced to an estate for life, the intention of the testator is thwarted; and it is therefore proposed to put an end to this reproach upon the law.
Again, it is very common to devise real or personal estate to a particular person, as to an eldest son, and if that eldest son "shall die without issue," then to the second son. Of the meaning and intention there is no doubt—no one who considers the ordinary sense and meaning of the words "die without issue" has or can have any doubt that they mean die, being at the time of dying without issue, and that the testator means that the estate shall go to his second son if the first shall die without issue living at the time of his death. But very different is the construction which the judges are bound to put upon the words if they can find nothing else in the will to control their technical meaning. They are bound to construe the words "shall die without issue" to mean, "shall become dead without issue at any period however remote." Now a man may die to day, leaving a family of children; he is not dead without issue, but two or three hundred years hence, his children

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and their offspring may be all exhausted, and then for the first time, at that remote period, the man becomes dead without issue, and consequently in the absence of any other words to control the construction, the judges are obliged to hold that it is only upon that remote event that the estate is given or intended to be given over to the second son. The result is, that the eldest son is deemed to have an estate tail in freehold estate and an absolute interest in the personal estate, and thus notwithstanding that the eldest son may never have any issue, the intended gift over to the second son entirely fails.
My Lords, I should scarcely venture to employ the language applied by Chief, Justice Willmott to cases of this nature, but in an opinion delivered by him in this House, he calls the technical exposition which I have adverted to, of the words "if he shall die without issue," "a monstrous absurdity, a shameful abuse of language, a confounding of the present and future time together, the most intolerable tyranny and the grossest barbarism;" and after saying most truly, that wresting and torturing words cut of their natural signification, to defeat a testator's, intention is directly counteracting the injunction of the law in expounding wills, and racking a man upon his death bed to make him say what he never meant or thought of," he adds, "but unfortunately for devisees claiming under bequests, depending upon the contingency expressed in these words only, without any other words to restrict them, some of the greatest and ablest men have followed one another in saying, that alone and by themselves, they roust be considered to mean, being dead without issue at any future time, and that limitation over upon them are void."
My Lords, the judges have no choice upon this subject; they must administer the law as they find it, and adopt the constructions which are established. I, who have now the honour to address your Lordships, and who feel sincerely the truth of the remarks made by Chief Justice Willmott, may, in the discharge of my duty, be obliged to-morrow to act upon the construction of words which he so severely condemns; and the rule being established, no judge can be exempted from the necessity of conforming himself to it without the interposition of the legislature.
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But the construction given to the words "die without leaving issue," when there are no other words to restrict them, is still more extraordinary. By a train of decisions which can only be controlled by the legislature, it is established, that the words "die without leaving issue" shall have two distinct meanings, one applicable to real estate, the other applicable to personal estate. When the words are applied to personal estate, they are to have what may be called their natural meaning, "leaving no issue living at the death," but when applied to real estate, the same words are to mean, "a failure of issue at any period, however remote." And if a man devises and bequeaths as follows: "I give my freehold and leasehold estates to my eldest son, and if he shall die without leaving issue, to my second son," the words "die without leaving issue," in this short phrase, are held to have two distinct meanings with respect to the two sorts of estates given, viz. an indefinite failure of issue with respect to the freeholds, and a failure of issue living at the death with respect to the leaseholds.
And thus, under the same words in the same sentence, and it being beyond all doubt that the testator meant the same thing as to both freehold and leasehold estates, the gift is by the construction quite different. In the freehold the eldest son takes an estate tail, which he can dispose of as he pleases. In the leasehold he takes an interest defeasible on his own death, without leaving issue then living.
This rule, laid down by Lord Chancellor Parker in 1720 against the opinion of Sir Joseph Jekyll, has been loudly complained of, and diligently have the Judges endeavoured to evade it by constructions and exceptions, from which an intolerable amount of litigation has arisen; and it is hoped that a great deal of litigation may be prevented by enabling the judges to construe the words according to their natural and obvious meaning, and in the same way in which they are now construed in their application to personal estates.
My Lords, I have heard of objections being made to a legislative construction of words; but when a rule of construction which plainly violates the lawful intention of testators has been established in the courts of law, I know no way of correcting the abuse (for such it is) but by legislative interposition; and I beseech of your Lordships to consider bow important it is

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that the courts should construe the words of a will in their plain, popular, and obvious sense. A man may have made his will in his time of health and strength, and with the ablest professional assistance: such a will is probably so expressed as to secure the execution of that which was the intention at the time when the will was made. But in the mutability of all human concerns, no man can say that the will which is now most suitable to the state of his family and affairs, will be so in the course of a few days hence, or at the time of his death. However well his affairs may now be arranged, however accurately the will already made may express his wishes at this time, a change may be necessary almost at the last moment of life, and at a time when it is impossible for him to procure the assistance of a professional man, competent to suggest the words, by the use of which alone, in the technical construction put upon them, it can be made sure that his real intentions will be carried into effect. He must take such assistance as in the emergency he can procure; words taken in their ordinary and popular sense, will probably be used: and if the courts cannot, as they now cannot, construe them in the same ordinary and popular sense, the intentions of the testator will be frustrated. I hope, therefore, that your Lordships will not object to the construction clauses introduced into this Bill.
My Lords, I have already occupied so much time, that I shall barely notice the remaining clauses in this Bill. Two of them are introduced for the purpose of making it more easy to ascertain what estate is vested in trustees, and to remove uncertainties and difficulties which have arisen from the rule which in some cases makes the estate of the trustee commensurate with the purposes of the trust which he has to execute: and there are two others which relate to lapsed devises and bequests.
When there is a gift in tail, the testator intends the issue to take if no act be done to bar the entail; and if the persons to whom the gift in tail is made, should die in the life-time of the testator, leaving issue inheritable under the intended entail, it is probably intended by the testator, that such issue should be substituted as the devisee in tail, in lieu of the person first named, and the Bill proposes to carry this probable intention into effect.
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Again, it often happens that a testator gives legacies to his different children as their portions, and that some of his children marry and die in his lifetime, leaving children of their own. It is in the highest degree probable that the testator does not intend the portions of such deceased children to lapse—does not intend the children of his deceased children to be left destitute; and this Bill therefore provides, that the legacies or portions of such of the testator's children as die in his lifetime, leaving children, should take effect.
I have now endeavoured to explain, however imperfectly, the principal provisions of this Bill. If your Lordships should be pleased to adopt them, they will, I believe, be found to supersede all the statutes heretofore made on the subject, and it would seem to be more convenient to repeal those statutes.
It only remains for me to thank your Lordships for the attention which I have received, and to move that the Bill be read a second time.
Lord Abingerconcurred in many observations and propositions of his noble and learned Friend, and though he was not altogether pleased with the phraseology of the Bill, yet it was considerably less objectionable than the last. Of that it had been said in another place that it had lain in the dormitory of that House so long as to prevent its being enacted. It had never undergone public discussion elsewhere, but it had in that House, and to him it was unintelligible at first, and not quite clear even when interpreted by the Gentleman who had drawn it. The present Bill was an important improvement on the last, and was rendered the more valuable by the fact, which his noble and learned Friend had not adverted to, that by it rights of entry and of action, or suit, might be devised or bequeathed.
Lord Broughamdid not rise to offer a panegyric on that which required none, but to express his satisfaction that his noble and learned Friend, who had just spoken, did approve of this Bill. He was sure, that had his noble and learned Friend examined the former Bill as attentively as he appeared to have done this, he would have found no difficulty in comprehending it. There were but two differences of any importance between them, or, at the most, five. There were some clauses; however, to which, in Committee,

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he should propose alterations. The repeal of all the other statutes must be guarded against with great caution; especially must their Lordships consider what the effect would be of altering that part of the law of revocation which affected the marriage of a man, and the subsequent birth of a child of that marriage. If that were abolished in cases of sudden death previously to the re-execution of an old, or execution of a new will, gross injustice might be done.
Lord Wynfordwas of opinion, that the facility for willing away personal estate ought not to be greater than that which existed for the disposal of real property. He did not understand the reason why it should he permitted to a boy of seventeen years of age to will away any amount of personal property, even to the value of a million of money, while he was prevented at that age from disposing of, by testament, even a shilling's-worth of real property. He saw no good ground for establishing such a distinction, and he hoped the provisions in the Bill with regard to it would be altered.
The Lord Chancellorexpressed great satisfaction at the unanimity of opinion expressed by their Lordships as to the principle of this Bill; and his only object in rising then was, to draw their attention to another measure, which he had the honour of introducing last Session, and which he had postponed, in order that the present Bill might take precedence of it. The object of this measure was to attach more solemnity to wills of personal estate; and that object could not be affected unless some provision were made for affording the means of strict proof. At present that matter was left entirely to the very imperfect machinery of the Ecclesiastical Courts, and the Bill for the improvement of those Courts (to which he had alluded, and which had been much discussed up stairs, but had subsequently been postponed in consequence of the necessity of passing previously some Bill of the same nature as the present) contained a clause which provided for the object in question. The two measures, taken together, would be highly beneficial. The first Bill would provide the means of properly making wills of personal property; and the other would provide means whereby the fact of their having been properly executed might be satisfactorily tried.
Bill read a second time.