The Sun.
London, England, 1852-03-24 00:00:00

LAW OF WILLS.

The LORD CHANCELLOR—My Lords, I rise to
move the second reading of a Bill for the amendment of
the law with respect to wills. When I introduced this
Bill the other night, I stated to your Lordships the diffi-
culties which it was intended to guard against. By a
statute passed in the reign of Charles 11., all devises in
writing were to be attested and subscribed by three or
four witnesses in the presence of the testator; and it was
said that a will was:good if the name of the testator was
found at the head of the will; and therefore, if a man,
for example, began in these terms—" I, John Styles, do
make this my will," that was held to be a sufficient sig-
nature. Now, my Lords, this was thought to be au
abuse; and, in order to guard against such an abuse, a
new Act of Parliament was passed in the first year of
her present Majesty, for the amendment of the law of
wills, which provided that every will should be signed
at the foot or end thereof by the testator, in the pre-
sence of certain witnesses. I had stated to your Lord-
ships that the effect of that enactment was (and I
dare say it was a surprise upon those who framed the
Act) that unless the name of the testator followed im-
mediately after the disposition of the will (if there was,
for example, a little more than an inch of space lefe
on which the name might have been introduced),
if the name was placed a little lower, the case was tried,
not by the rule of law, but rather by a rule of space, and
the will was held to be void; and, upon that construc-
tion, my Lords, haedreds of wills have been held to be
invalid, and misery and wretchedness have found their
way to hearths where wealth, and peace, and comfort
ought to have found their liabilities. My Lords, the
proposition is to amend the present law by providing
that where the name of the testator is found after the
will, so as to give, by its place and situation, a sanction
to the will itself—so as to show that it was intended to
sanction the will by the signature after the wit], that
shall be held to be valid. Now, my Lords, no question
ever arose in the vast number of wills which were made
after the Statute of Frauds in the reign of Charles 11.,
which I have mentioned—no question, I say, ever arose
as to whether the name of the testator being after the
will was in its proper place or not, and therefore
the removal of the obstacle which has been occa-
sioned by the decisions will remove all the difficul-
ties, and no questioe, hereafter can arise, as it ap-
pears to me, my . ads, with regard to the execu-
tion of such a will. My Lords, I believe there will
be a general concurrence in this measure, and I be-
lieve that nothing can be more desirable, as people die
daily, and as men must have made their wills, and as a
great majority of wills would be held to be valid but for
the rule of law I have referred to; and, indeed, I know
that many of your Lordships, in consequence of what
you have heard, have done exactly what I have done
myself, namely, I have looked at my own will to see
whether it was executed so as to carry my own inten-
tions into effect, having a very great doubt in my mind
whether the appearance of the thing upon paper might
not invalidate it, for I might have put my name a little
lower than the rule of law required. And I think, my
Lords, that it is of the utmost importance that a man's
will should be considered valid and sacred where the
mere form only is in question, and the substance is not
in question. Therefore I propose, with your Lordships'
permission, to carry the Bill through all its stages now,
so that your Lordships may be enabled to pass the mea-
sure before Easter, and send it down to the other House
immediately. My Lords, there are other points which I
have endeavoured to cope with, and which may be open
to more observation, and which may draw from some
of my Noble and Learned Friends objections to its pas-
sing without more mature consideration ; and, my
Lords, if that should be so, I can only say that I should
at once feel myself bound to withdraw those clauses,
because I mean to put forward nothing that in my
opinion shall endanger this measure, which is one which
I think so exceedingly important. My Lords, the two
clauses to which I refer will, I think, remedy a great
abuse. The Act of Parliament of her present Majesty,
as I have told your Lordships, requires a will to be
signed at the foot or end thereof, in the presence of two
witnesses. That my Lords, I have disposed of. It
then goes on to require that the signature of the testator
shall be made or acknowledged in the presence of the
witnesses. Now, my Lords, this difficulty has arisen
upon that—it was not required by the Statute of
Frauds: but this difficulty has now arisen. Your Lord-
ships will bear in mind that what the Act requires is,
that the signature of the testator shall be made or ac-
knowledged in the presence of the witnesses. Now,
my Lords, it often happens that when a man has
made his will and called in the witnesses to
attest his will, he is anxious that they should
not see any part of the provisions of that with—
suppose, for example, that it is written on a sheet of
letter paper—you have it before you, and two servants,
perhaps, come into the room to witness the will, and
the testator desires that they should not read any por-
tion of the will by glancing over that part which is
above the signature, and that bas induced a man fre-
quently to hold down the will so as to hide from the
witnesses the portion above the signature, and in doing
so they have folded down the signature itself. And, my
Lords, it leas been held, that as the statute requires
that the signature, not the will, should be made and
acknowledged in the presence of the witnesses, that
unless they have seen the signature the will is void.
Now, my Lords, that was never the intention, and with
your Lordships' permission I propose to amend that
state of the law in this manner—by enacting that if
the signature of the testator be in its proper place, and
it is not proved to have b ,en placed there after the
witnesses affixed their signatures, and if the testator
at the time acknowledged the instrument to be his will,
that that shall be sufficient. Now, my Lords. I enter-
tained a hope—which hope I have rather abandoned
within the last quarter of an hour—but I had
hoped that this proposition was free from objec-
Ntioonh,lhaanhdd weuld meet with none from any of my,
Learned Friends, because, if a testator ac-
knowledges an instrument to be his will, and if the will
come to be examined, and the name of the testator is
found to be in its proper place at the end of the will,
where is the danger? What is it, my Lords, that you
baveth
o guard
rdageirst? There is the signature—the
testator signed it, and properly speaking it is not
ffectaal
his will unless he has signed it. If, therefore, he did
reasonable to allow men's wills to be
that which was requisite at the end of it, which is ne-
cessary Lor-
dships
set aside upon a distinction of that sort. I should pro-
whtsoigheivreiteis operation to it, I ask your
pro-
mise your Lordships that if any obstacle be opposed by
any of my Noble and Learned Friends to this provision
being carried now—a provision which I should think it
not proper to attempt to force upon your Lordships—if
any of my Learned
Friends should have any objections
to offer, I shall think it highly improper to attempt to
ask your Lordships to pass this provision without full
consideration being given to it; and therefore I shall
withdraw it, so as not to endanger the ultimate success
of thu whole measure, though undoubtedly I shall intro-
duce it for further and more mature consideration upon
another occasion. My Lords, there is another improve-
ment, if your Lordships should think proper to concur
in it, that I propose to introduce. The statute requires
that the witnesses should sign in the presence of the tes-
tator; and, my Lords, it has very often happened that
when a man is making his will In extremis —when ho is
lying in bed, and is incapable of being moved, but still
in a state of perfect capacity of mind—it has frequently
happened that witnesses who have come round the bed-
side, and witnessed the execution of the will, and seen it
signed by the testator, all duo solemnities being ob-
served, in order not to disturb him, have retired to the
adjoining room, and there attested the will; and then
the question has arisen—is that, or is it not, a com-
pliance with the statute, which requires that a will shall
he signed by the witness in the presence of the testator?
Now, my Lords, in order to meet the difficulties of the
case—with a natursl desire to give effect to men's wills
where there is no fraud, and where the statute has been
substantially compliedi with, the courts have made
this distinction, that ,:if the witnesses sign in such a
position in an adjoining room, that they are within
the line of light, so that the testator, if he liked,
might see them (although nobody pretends that he
did see them) the will is good; but if they happen
to retire a little beyond the line of light, the table,
for example, being out of view, and they all sign
the will, then the will is void. Now, my Lords, what has
been the consequence ? Why, my Lords, this—that
jetties have not been found who would, though upon their
oaths, find a will so signed to be void. They would not
find a will to be void, though it was clear that the tes-
eater was not in a position in which he could have seen
the witnesses sign. And, my Lords, we have had
several instances of this sort. Several trials have been
sent down to juries once, twice, and thrice, to decide
that question upon a will, in cases in which there was
no doubt about the fact that the witnesses were not
within the line of light, and the juries have upon every
occasion returned a verdict in favour of the will, and re-
fusing obedience to the law, because they thought that a
verdict according to the rule of law would be stripping
the rightful owners of their just possessions. Now, this
is an invitation which should not be held to juries to
Compel them to come to a verdict at variance with their 1
' own consciences. My Lords, there is undoubtedly a dif-
ficulty ; but before I state to your Lordships what it
is, I must state that it is almost absurd and ludicrous.
The statute applies to a blind man's will, as well
as to the will of a man who is possessed of his eye-
sight ; and it has been held, therefore, that under
the statute, although the witnesses are to sign in the
presence of the testator, yet if they sign in the pre-
sence of a blind man that is a good signature. But
your Lordships will be astonished when I tell you—
although nobody would find fault with it, because it was
in furtherance of a testamentary power, and it would be
hard, because a man was deprived of his sight, that ho
should be deprived of the power of making a testamen-
tary disposition of his property—that tho courts have
made this rule, which surely must startle most people—
viz., that the same same rule, that which I have spoken
of to your Lordships as to the line of light—applies as
well to a blind man as to a man that can see;. and the...
courts have decided that if a blind man is not in adpoesie
tien in which if he was blessed with sight he could nee,
his will is void. And so, in the case of a man being
there,
, wholly incapab!e of seeing, if the witnesses
.are the
line
his will is good if they happen to sign within
of light. Now, my Lords, surely these aro
anomaliesallowed to
in the law of England which ought not to be I
put to
prevail; and I must say that the first case that
held to
your Lordships,
• in which men's wills have.been
the proper
put in
be void because the signature was not
' place, is a case arising under a law which in its opera-
tion is a disgrace to the country-
My
Lords, it is very
stating to your
easy to point out what I have
been
will not be perhaps so
' Lordships upon the last head. It
easy to persuade some of my Noble and Learned Friends
dy,
!
that I have provided a satisfactory re me aseci
intaltho()
mugheil
have often and ttlaaiously taken the Bu ha