The Sun.
London, England, 1852-05-28 00:00:00

with that anxious desire to promote the due adminis-
tration of the law which had ever distinguished that most
learned judge, had introduced the present Bill, and a
more proper one, in its scope and object, could not well be
conceived. And yet, owing to the menrier in which a per-
tion of it was framed, it was no: Only net calculated to
re-move the unfortunate mischief, bat was likely actually
to multiply and augment it. What was wanted Was a
plain and ordinary rule tor the guidance of plain and
orei-tary men; bet .he (Mr. Betbell) feared that
a portion of this Bill, as it now steed, would complicate
re-her thee simplify. 'Listed:l of repealing the original
enactment, it was reteinede accompenie i by a long sec-
tion which partly expounded and partly affected to be a
remedy for what was admitted to be a vicious state of
the law. The Bill, as at present constructed, provided
that whatever might be the position of the signature,
whether " at, or after, or following, or under, or beside,
or at the end of the will," the instrument should be of
no effect unless the signature were so placed as that it
should be apparent the testator meant to give effect to
the writing. The attempt to explain and determine , the
meaning of the previous provision with respect to signing
was unsuccessful, and it would' be far better to lay
down one plain general rule. The best mode of alter-
ina the Bill, therefore, would be to extract the words
in question. and to substitute others, not entirely new,
but in part adopted from the original clause. The HOD.
and Learned Member, after remarking en the imperfect
nature of the language too frequently made use of in the,
law Bills which were introduced into that House, and
compiimenting the Nobler and Learned Lord who framed,
the Bill for his great learning, stated that the first
clause, nevertheless, was a maze without a plan,
and therefore proposed as an amendment to omit
in the preamble the words "as follows," and tho
whole of the first section, and 'in lieu thereof insert the
following as the first section of the Billh--" That so
much of an Act passed. in the first year of the reign of
her Majesty Queen Victoria, intituled, ' An Act for, the
Amendment of the Law with respect to Wills,' as enacts
' Tout no will shall be valid unless it shall be in writing,
and executed in manner hereinafter mentioned (that is
to say), it shall be signed at the foot or end thereof by
the testator, or by some other person in his presence and
by his direction; and such signature shall be made or
acknowledged by the testator in the presence of two or
more witnesses present at the same time; and such Wit-
nesses shall attest and shall subscribe' the will in the
presence of the testator; and no form of -attestation
shall be necessary,' be, and the same is. hereby re-
pealed: and in lieu thereof be it, and it is hereby enacted
that no will shall be valid unless it shall be in writing,'
and executed in Manner hereinafter mentioned (that is
to say), it shall be signed by the testator, or by some
other person in his presence and by his direction, in such
manner as that it shall be apparent that the testator in-
tended to give effect by such signature to the writing as
his will, and such signature shall be, made or acknow-
ledged by the testator in the presence of * two or more ,
witnesses present at the same time, and such witnesses.
shall attest and shall subscribe the will in the presence
of the testator, but no form of attestation shall be ne-
cessary."
Mr. BERNA.L said the amendment was a perfectly
new clause, and could not, therefore, bo put in that
shape. The course was to negative the original clause,
and then make the addition of a new one.
The MASTER of the ROLLS concurred neither in
the clause nor the amendment. It was most important
in the law as regarded wills to avoid technicalities and "
to enable persons who made them to carry out their
intentions. The existing, law was framed upon the
report of the Real Property Commissioners for the pur-
pose of avoiding, technicalities; and yet it had, created
more than had previously existed. The Real Property
Commissioners bad put an end to the holograph wills,'
but he thought they would have amended the law more
effectually it they had required two witnesses to each.
There should not be one species of rule for one instru-
ment and another for another instrument, as existed at
present. Sir H. Jenner Fust had stated to him that
baskets-full of bond fide wills were every week refused
probate at Dectors'-commons. The evil was, therefore,
very great. But, nevertheless, he doubted whether
the House of Commons was 'in a position to- amend
the evil; and he submitted whether a Select Com-
mitte would not be the best mode of dealing with
the subjeche--(Hear, hear.) The signature of a
will was the attestation of the same, and there
could be no difficulty in arriving at a conclusion in re-
spect to it. He thought there should be an expression
on a will as the signature at the foot; all that should be
required was the signature and the attestation of the
same by witnesses. By the amendment a law suit might
be raised on every will upon the words " that it shall be
apparent that the testator intended to give effect by such
signature to the writing,/, He was of opinion, there-
fore, that the attestation of a will by two witnesses was
all that should be necessary. The present forms led
directly to fraud. He had considerable doubts whether
it was requisite that the witnesses should sign in each
other's presence or in the presence of the testator, and
he quoted tt case in which a will was held to be invalid
from excess of caution. Ho would venture to say that
neither of the law officers of the Crown had communi-
cated with a single lawyer conversant with wills in
courts of justice who would tell them that the effect of
the Bill would be such as was anticipated by i.s pro-
moters. He believed that the only remedy for the evil
complained of would be a simple enactment requiring
every man able to make a will to sign such document in
the presence of two attesting witnesses. He was so de-
sirous of the Bill being referred to a Select Committee
that he was disposed to suggest that the chairman should
report progress in order to effect that result.
The SOLICITOR-GENERAL could not concur in
the suggestion of the Right Hon. and Learned Gentle-
man to refer this Bill to a Select Committee, inasmuch
as such a proceeding must necessarily be attended with
considerable delay, while numberless wills were being
executed every day, the validity of which it might be
hard to establish in the present uncertain state of the
law. An important amendment was introduced into the
law by Lerd Lengdale'a Bill, in 1837. Nothing could
be apparently more clear and simple than the conditions
required by said Bill for legalising wills. The words
were that the will shall be signed at the foot thereof by
the testator, and that the signature shall be attested by
two witnesses. Unfortunately, however, these words
raised the greatest difficulties in the way, and many deci-
sions were given by the learned judges in respect of
them; the effect of which was generally that if there
was an interval of space of an inch or thereabouts
between the foot of the will and the signature
the document was hold to be invalid. The Lord
Chancellor, fully aware of the evils arising from the
defective state of the law in this respect, lost no time
after his appointment to office in endeavouring to apply
an effectual remedy to them. lie (the Solicitor Ge-
neral) had heard with much surprise the comments of
the. Hon. and Learned Member fur Aylesbury upon
the structure of this Bill, which had also received the
disapprobation of the Right Hon. Gentleman the Master
of the Rolls. Now, he could not but temind the Com-
mittee that the Noble and Learned. Lord the author of
the Bill was not only the greatest of living equity lawyers,
but that he possessed the most extensive experience
in the practice and administration of the law of any
man in existence. The Noble and Learned Lord was
also intimately acquainted with the subject, and was
the author of some of the most important and useful
Acts to be found in the statute-book.—(Hear, hear.).
The Noble and Learned Lord in the present Bill applied
himself solely to the grievance that was to be remedied
in *respect to the position of the signature of the tes-
tator, rind therefore provided that if the signature be
placed at or after, following, or beside the will—that no
matter where the signature of the testator be placed, the
document shall be valid if it shall be apparent on the face
of the will that the testator wished to give effect to it.
If the clause was enacted in the way Hon. and Learned \
Gentlemen propoeed it should be enacted, it would come
under the consideration of the Prerogative Court, and
then all the objections would lie taken which the lion.
and Learned Gentleman contended would be overruled
by his alteration. He apprehended that the whole of
the clause as it stood in the Bill, from the beginning to
the ende was necessary in ogler to apply a remedy to
those evils enumerated; and whatever might be the form
of words used, he was satisfied without this specific
enactment, those words would be entirely insufficient.
By the language need in the clause a remedy for certain
evils was applied: lie did not say all the evils of the
Act of 1835 would be remedied, but certainly much of the
admitted evil would he diminished. He would add ono
more word on another point which had been referred to.
The Right Honourable and Learned and Ho-
nourable and Learned Gentlemen opposite seemed
to think that the statute of 1835 relative to the
execution of wills was intended as a guide to persons as
to the way they should make their wills. The great mass
of makers of wills,- he would beg to remind those Hon.
and Learned Gentlemen, seldom looked to an Act of
Parliament in order to learn the way to make a will.
Men of education and property usually took legal opi-
nion, and the parties they consulted would no doubt take
care that the wills were made in a proper form. But he
coutended that it was not the province of an Act of Par-
liament to teach people how to make a will, but to tell
courts of justice how to pronounce on the execution of
wills which came under their consideration. The great
question was this, that laws were not to guide ordinary
men in the way' they should make their wills. That
was not the question or the object of Acts of Parlia-
ment, Bat the question was, would these Acts of Par;
liament enable courts of justice who had to pronounce on
wills, to do justice and to carry out correctly the inten-
tion of the testator, if these intentions appeared to be
dubious? His opinion was, the more simple the language
of an Act of Parliament, the lAtter would be obtained the
great object of framing an Act of Parliament—namely,
to guide courts of justice to the intentions of testators.
eNbvuo2f:rusvivneotrloeouuesor technical objection ought to be allowed to
set aside wills. The clause as it was now framed offered
a complete remedy to evils under the Act of 1837, and
He ethterucalteeudsetohfeothe Hon. and Learned Member for Ayles-
bury
alteration.substituted,hed. plu ttw
Committeethevoau rlido eulfser eu cv te would
open
courtsto l e e v
ofe
jus-
tice, as now, t
WOOD
gbeettentitpurdeesstionwgaorndsalthare would
to onth thee
elaAucate.
tempting to remedy a saidN he concurred in expressihg
Sir W. P.
_Ale and Learned Lord for at-
rievance that for a long time had
question
eesptiiortion of the community. But
ldwbbeether the Bill, in its
it was quite another
objection
on the statute-
present imperfect form, should
ion
fof delay, ho book. With respect to the oh'
re-
gretted that the Bill had Lot Len
fateepatorede to le-
ago to the Select Committee; for if Les errruerds'esohmade daysbecn
t
longer Bill,b,i,eu hadr reported
id;
takengi
slat e theu u
upon
otohsee
subject.wo uldhavier bweaesnnobtttceiorco
amucehndlonh
referredfor the Bankruptcyto a sel
eet
Committee, Bill,
upon in a tow hours. The present Bilk would beP pro-
perly‘ dealt with by a Select Committee in about two
eqs. It bad been asserted that this Bill was a perfect
Bill; but ho must take au exception to that description
of the Bill. No laws, in his opinion, required to
I be more simple and definite than !MVO by which per-