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In England, the right (with certain limitations) of a living person to have a voice as to the channels in which property he possesses should flow after he is dead, is conceded. With the abstract and inherent right of a man having a word to say to the control of this world's goods when he himself is in another, we have nothing to do. The legal right, which is also in accordance with a very general sense of moral right, gives the owner a post mortem distributing power over property. Hence, if the landed gentry choose to endow their eldest sons with their estates, we can see no special unfairness in their so doing.
Practically speaking, the proposed modification would not in any way affect this class of persons. They would go on making their wills and settlements as heretofore. Are the great landowners of Kent, where equality of partition among sons is the rule of descent, found to dispose of their estates differently to the landowners of other counties?
As regards persons of the middle class, it cannot be disputed that they are generally in favour of an equality of division. The majority of the wills of persons of this class clearly shows this to be the case. But it would be by no means wise to hold out an inducement to them not to make wills, and this measure would operate as such an inducement. Intestacies among them are now not very frequent, and are becoming less so every day ; but the measure in question would undoubtedly tend to increase their number. It is well recognised that a man, in dis
a posing of his property by will in favour of his family, benefits them far more than he would do by suffering it to devolve upon them by intestacy; and it is now generally understood beyond the legal profession what the disadvantages of intestacy are ; how, for example, the duties payable on taking out administration to the effects of an intestate are higher than those payable on the probate of a will; that a will is easily proved ; that the appointed executor enters into no bond, and requires no sureties; whilst an administrator may be required to procure a surety, or more than one surety, to join with him in an administrative bond—a matter which is not always found to be quite so easy as at first sight
may appear. Then, again, the “Handy Book,” or “handier attorney,” will have explained to the “man of property,” that the executor has, or ought to have, much greater powers of dealing with the estate of the testator in respect of the shares of minors, &c., than an administrator would have; and, generally, the disadvantages under which the family of an intestate labours, especially if there happen to be many young children, are so notoriously great, that the state ought to do every thing in its power to induce persons not to leave their property to devolve by intestacy. It is but idleness, carelessness, cowardice, or obstinacy, which induces persons to delay making their wills; and for these, who are a small minority, the state need hardly be required to legislate.
It is, then, the poorer class-the class of small landed proprietors—those who possess a small cottage and an acre or two of land a-piece, of whom it is said there are 300,000 in this country —that would alone be materially affected by this measure, for they seldom, if ever, execute wills. Mr. Locke King thinks these poor persons are seriously injured by the present system, and would be benefited by its modification. We not only doubt this; but we say, so far as experience and evidence are worth any thing on a speculative proposition like this, that the reverse is the truth, and the class in question would inevitably suffer. But the lawyer and the government would frequently be benefited, at the expense and sometimes ruin of the client.
In the first place, in every case an administration would be necessary where now none is required. The yeoman, with his attorney, must go to one of Sir Richard Bethell's district registries, and there take out administration to the estate of the intestate, who probably may have left nothing in the world but his cottage and patch of land ; a surety or not may be required at the option of the district registrar, and the yeoman may or may not come prepared with, or be able to provide, such an article.
But the obtaining of the letters of administration would be but a light and easy matter, as compared with the troubles and liabilities which the upfortunate administrator would incur in dealing with the little property vested in him. Would Mr. Locke King have the cottage pulled down and the bricks divided, and the land parcelled out into little strips and thin slices ? Probably not. Well, then, supposing all the next of kin are capable and willing to concur in some arrangement, there are but three courses open to the administrator:-(1) the property can be sold; or (2) one or more of the next of kin can take the land and pay out the rest; or (3) it may be let.
In the first case, the expenses of the sale, together with those of administration, would leave but little to be divided. The widow, for whom Mr. Locke King so urgently pleads, would be turned out of the house in which sbe may have resided during all her wedded life, and each of the next of kin of the intestate would become possessed of a small sum of money, the greater part of which would in many cases be frittered away, and sometimes, we fear, pass by a very ready-money transaction into the hands of the nearest publican.
In the second case, money must be raised. How can this be done but by mortgage? Here, again, step in the processes of the law, its costs, and outgoings. A deed of mortgage must be prepared, as also a conveyance to those of the next of kin who elect to take the land, and perhaps a release to the administrator, who would not be safe without it, at least so says the legal adviser. The expenses incident to these proceedings must either be shared by all the next of kin, or—which would amount to the same thing-must be taken into account in the valuation of the property, and be raised by the mortgage. These expenses would at least equal those which would have been incurred had a sale been determined on; and the few pounds which law and the lawyers would leave, would soon slip through the fingers of those who are paid out without bringing commensurate advantage to them ; while those who keep the land would be hampered with
l a heavy mortgage-heavier, perhaps, than the property can bear. In a bad year interest would fall in arrear—the land would be sold, and one of the valuable body of ancient freeholders be thus struck off.
In the cases we have mentioned, the attorney, however moderate, and necessarily ill-paid in the business, would be the nearest of kin to every intestate; for it is he who would take the largest share of the property, the value of which, be it remembered, must be reckoned not by thousands, but at most by a few hundreds of pounds.
We have yet the case of a lease to consider. This would be the least objectionable mode of dealing with the small property ; the expenses would not be so heavy as the expenses in either of the other cases, and each of the next of kin might, perhaps, receive two or three pounds a-year. But would this be so considerable an advantage to them as to induce the legislature to change a law which, after all, has worked pretty well for eight hundred years? And although all the next of kin may agree to a lease in the first instance, yet what is to preverit any of them, including the husbands of daughters, from subsequently insisting upon a sale ?
In the event of any of the next of kin being incapable or unwilling to concur in these arrangements, the property must either be sold by the administrator, or recourse may be had to the Court of Chancery! The bill makes special provision for such a state of affairs; for by its second section the Court of Chancery is authorized to give such directions, upon the summary application of the administrator, or of any of the parties entitled, as the court shall think expedient. Mr. Henley, in his observations on this bill, remarked that he did not think it was necesasry to enact that any man might go into the Court of Chancery, because he always laboured, unfortunately, under the impression that the Court of Chancery, like another nameless place, was always open. Be this as it may, the Court of Chancery is not exactly the court one would wish to see imposed upon the poor; and yet if this bill bad passed it would have been almost impossible for them to avoid resorting to it.
The law as it now stands does not operate with any degree of hardship upon the poor. The widow, we may say, is invariably provided for by her dower; and though instances may be found of a harsh elder brother, who may refuse countenance to the younger branches of the family, yet these are the exceptions among the poor, whatever may be the case among the richer members of the
, community. The good old English heart is not yet extinct, and the cottage which, under the proposed system, would in nine cases out of ten, come into the hands of the stranger, is still open to the young brother or sister in the case of need.
In the view which we take of this question, the peculiarity of the law as regards leaseholds cannot be considered; it is an anomaly we admit, but there is very little long leasehold property held by the poor ; that species of property is chiefly found in towns, and the poor are seldom owners of house property in such localities. There are, we are aware, a few districts in England, principally in the north and on the seashore, in which land is occasionally sold in small plots, by way of lease for 1000 years, at peppercorn rents, the object being to reserve certain rights which could not be reserved in
other manner; but these cases are not numerous, and the plots are usually purchased for building purposes, and are, therefore, not in the hands of the poor.
Mr. Locke King has said, that among the middle classes there is scarcely one in a hundred who knows the law; they imagine that land descends as money does. This we take leave to doubt. If one thing in law is popularly, nay universally, known, it is that the eldest son is heir to land. But were it to be as Mr. Locke King thinks, we again say the middle classes can and do take care of themselves and their families far better than the poor can. The small landowners, “who never do and never will make wills,” inherit by descent, and they know the law well. Lord Palmerston mentioned the case of a yeoman living on the borders of the New Forest, who possessed a cottage and a few acres of land, which he had inherited from an ancestor who carried the body of Rufus to Winchester; and that that yeoman was as proud of his position as the greatest peer or landowner in the kingdom. This yeoman, and all who, like him, have inherited as eldest sons, must be perfectly well acquainted with the rule of descent.
Mr. Locke King, in support of his bill, quotes the following passage from the renowned speech delivered by Mr. Brougham in the House of Commons, on the 7th February, 1828, in which the