« PreviousContinue »
they that now live cannot project under what lawes their children shall live; nor the child or grandchild understand by what lawes the kingdom was governed in the time of their father or grandfather; and thereby the constitution of the government, the rule of property, and all things that are concerned to have the greatest fixedness that may be, shall become as lax and unstable as if every age underwent a new conquest from a foreign state.”
In quoting the above passage in connection with the publication placed at the head of this article, we are far from wishing to imply that all the measures for the reform of the law, introduced by Mr. Locke King during his parliamentary career, are open to the objections alluded to by Sir Matthew Hale. Indeed we admit, as most will admit, that some enactments which owe their parentage to Mr. Locke King's parliamentary energy, have effected real and beneficial reforms, and have removed from our laws absurdities which it is only surprising should have been left so long untouched, and which it is still more surprising should have been swept away, not at the instigation of a legal member of the legislature, but at that of a layman.
It is to Mr. Locke King's zeal and perseverance that we are indebted for the act (17 & 18 Vict., c. 113) which renders real estate in the hands of an heir or devisee primarily liable to the payment of all mortgage debts with which it is charged ; and also for the act (19 & 20 Vict., c. 94) which abolished the special customs of London, York, and other places, concerning the distribution of the personal estate of intestates. Of these measures Mr. Locke King seems to be, and may justly be, proud. But the remarks of Lord Chief Justice Hale are, nevertheless, peculiarly applicable to the proposed alteration in the law of descent of real estate, unless better reasons and more sufficient grounds than we have yet met with can be adduced for its introduction. We will, however, proceed to consider the arguments which have been used on behalf of the proposed reform.
Mr. Locke King states that the law which regulates the descent of real property “is a perfect chaos, inconsistent with itself, and generally admitted to be oppressive and unjust wherever it comes
into operation.” We were not aware, until after we had had the advantage of reading Mr. Locke King's speech, that the present canons of descent were particularly chaotic and inconsistent; but confusion and inconsistency, if they exist, can be remedied without abolishing the present principle of descent; and the propriety of a change in that principle must depend solely upon the question whether it is unjust, oppressive, or inexpedient.
The rule of descent is thus laid down by Mr. Locke King :“Where a parent dies intestate, leaving a widow and children, if his estate be freehold land the whole of it descends to the eldest son, and the remaining children and the widow are, under the sanction of the law, left destitute." As regards the widow the above statement is erroneous, for she is always entitled to her dower, of which she cannot be deprived, except with her own consent, or by her own election ; or, as regards a widow married on or before the 1st January, 1834, by the usual uses in bar of dower; or, as regards a widow married since that date, by a disposition by, or the express declaration of, the husband.
Mr. Locke King mentions a case of peculiar cruelty to a widow, which had been brought under his notice :—“A small tradesman married a woman with some money; no settlement was made on the marriage; he would not invest her money in his business, lest it should run any risk of being lost. After they had lived very happily together for some years, the house they resided in was for sale ; he told his wife that it would be a very good investment for her money, and accordingly he bought it. He died intestate, ignorant of the law; his own nephew, his heir-at-law, claimed and took the house, and the widow is now destitute-a menial servant."(P. 10.)
The case, no doubt, is one of hardship; but there are also many other rules of law which, in particular cases, work great injustice. For instance, how often it has happened that the benevolent intentions of a testator have been frustrated because he was "ignorant of the law," and did not execute his will with the required formalities; and so his property has devolved upon his next of kin, whom he perhaps never saw, or who had no
claims upon him, in lieu of its coming into the hands of those for whom the testator properly intended it; and yet would Mr. Locke King and his supporters advocate a return to the old system, by which no formalities were required for the bequest of personalty, and would they extend this also to realty ?
Again, the rule of law, that no gift by will in favour of a testator's illegitimate child can take effect unless the child be in esse at the time of making the will, and be particularly specified, is salutary as a general principle, but occasionally is extremely unjust. Take, for example, the following case, which is but one out of many:-A testator, who had married his deceased wife's sister, by his will gave all his property after her decease to his children, and died, leaving by her one son, who was born after the date of the will, but no other children. The son, in the eyes of the law, was illegitimate, and could take nothing; the property, subject to the reputed wife's life-interest, was held to belong to the testator's next of kin. The Master of the Rolls expressed his regret at being obliged to come to that decision, but could not decide otherwise (Pratt v. Mathew, 25 L. J., ch. 409). Now, could this case be brought forward in favour of a change in the law as regards the recognition by the state of illegitimate children?
The fact is, that it is impossible to legislate in such manner that no cases of hardship shall arise from ignorance of the law; and the general expediency of the laws of a country cannot be questioned on the ground that they are unjust and oppressive in a few exceptional cases.
But, to return to our widow. It must not be forgotten that the uses in bar of dower only bar the dower of the woman who was married on or before the 1st January, 1834; they do not affect the rights of any woman married since that day. It is true that many counsel as well as most attorneys have been in the habit of inserting, in all purchase deeds, a declaration barring dower; but this practice is utterly reprebensible, except where the insertion of the obnoxious clause is specially directed by the client. Surely, now that a man may at his own pleasure, by deed
or will, defeat his wife's dower, it is a great injustice to deprive her of it for the sake of the heir, who may perhaps be but a distant relation; and in most cases, if the matter were properly explained to the client, he would object altogether to the declaration in question. We were sorry to find Messrs. Davidson and Wright, in the first volume of their Collection of Precedents (p. 194), apparently countenancing this practice, by giving (without any warning to the unwary) the form of a declaration in bar of dower, as the form in all cases in which a purchaser is a bachelor, or a widower, or has married since the 1st January, 183t; but we were rejoiced to find that they subsequently repented them of the evil they had done, and inserted a note in their second volume (p. 193), to the effect that such a declaration is “unreasonable.” The sooner they who "affect conveyancing" learn to regard this sound view of the soundest authority in English conveyancing, the better. Still the neglect in drawingunjustifiable and mischievous in its effects as we admit it occasionally is--is not such a heavy grievance in the aggregate as to afford much aid to Mr. Locke King in his gallant fight for his cherished widows. The case of the
children is not so easily disposed of as that of the widow. The arguments put forward in the House of Commons on the 2d March last, by the opponents of the proposed "improvement,” were neither cogent nor appropriate. The Solicitor-General, escaping from principle, entered inío verbal criticisms in default perhaps of being able to introduce personalities, to be applauded by a party. He was informed, very properly, that his remarks would have been pertinent had the House been in committee on the bill, but, as that was not the case, that they were wholly beside the question. The parliamentary inexperience of the young Solicitor-General might have excused the irrelevance of his criticisms had they been fair and reasonable; but they were not so. The heavy demands, however, made upon his powers by the political exigencies of his party, on great occasions of life and death, may be pleaded as an extenuation for a slovenly
performance of his duties as law-officer, on an occasion of practical legislation like that we are alluding to.
The Solicitor-General set out by ioforming the House that a testator might have made a will devising his real property, and yet have died intestate with regard to his personal property; and that the effect of the bill would be this, there would be an adıninistration under which his real estate would be distributed among his next of kin, in defiance of his will.
Now, no doubt the language of the bill would admit of this interpretation, but the difficulty could easily have been obviated by the insertion of two or three words; and it is an unfortunate confusion of principle and detail of the essential and accidental -which frequently leads a certain class of minds to make such objections as the Solicito General here offered, instead of thuse which are true and substantial. Very few bills of the present (or any other) government would be accepted, if imperfect language and inappropriate phrase were held grounds for rejecting them. What (e. g.) would the Solicitor-General say if his real property measures had been objected to, because the bills he introduced were so obviously absurd that, within a fortnight after their introduction, he himself was compelled to alter, if not amend, more than half the clauses in them?
Another objection raised by the Solicitor-General was, that every real estate in the kingdom would pass to an administrator, and would be liable to be sold by the administrator for payment of the debts of the intestate. This must have been an error of forgetfulness, or arose from his confidence in the ignorance of the House ; for only those estates of which a man might die intestate would vest in the administrator.
The Solicitor-General then proceeded to discuss the cases of hardship that would arise out of the bill. “ Take the case,” said he, "of a man possessing an estate which he had acquired by descent through his mother. Suppose he had one cousin
his mother's side, and nineteen cousins upon his father's side, under this bill one-twentieth of that estate would go to the cousin on the mother's side, and the other nineteen-twentieths would go to