Page images
PDF
EPUB

TRIBUNALS TO WHICH IT IS PROPOSED TO TRANSFER THE JURISDICTION OF THE COURT OF PROBATE.

Everybody is agreed that there must be a Court of Probate, but some attorneys petition Parliament that it should be the Court of Chancery, others, that it should be the Courts of Common Law, in fact, anything but what it is and where it is that is, where the complainers cannot individually profit by it.

Now why should it be the Courts of Common Law? It is generally answered, first, because it is desirable to assimilate jurisdiction over, as well as the disposition of, real and personal property; secondly, because devises of real property are tried at Common Law."

Let me say a word on both these points.

1st. Until the law of primogeniture be abrogated there never will be any similarity between the two kinds of property. If you descend into the details of the subject, a different rule, bottomed upon a different principle, is found to be applicable throughout the administration of realty and personalty-the things are essentially different, and no act of parliament, were it to make so violent an innovation in the constitution of this country as to repeal the law of primogeniture and the statute of distributions, still not even such an exertion of legislative omnipotence would make

things in their nature unlike amalgamate. I may not stop to remark, that it has been the policy of every civilized country in the globe to facilitate, as much as possible, the transmission of personalty, nor how far and how widely the recent Statute of Wills has invaded this policy.

2ndly. What is the inference from the fact that devises are tried at Common Law, that testaments should be also tried there? I have shown that the Report of the Commission of 1832 came to a directly opposite conclusion. Ah! but think of the evils of conflicting decisions! and this is said with as much confidence as if conflicting verdicts of juries, new trials from the monstrous findings of juries in the very teeth of law and fact, were things unheard of, and not of frequent occurrence. As if the same case had not been sent four successive times to a jury whose verdict had outraged common sense. I well remember a case before the Judicial Committee of the Privy Counsel, where, in answer to a suggestion of counsel of what the finding of a jury would be as to whether a testator had signed or not in the presence of witnesses, the Lord Chancellor Lyndhurst said, "a

[ocr errors]

jury, why a jury would of course find it was "his will, and not care about the law;" and those who are acquainted with the case of Jackson v. Jackson, tried not not many years ago before Mr. Baron Parke at York, will appreciate the sagacity and truth of this remark. Indeed, is it not

more than probable that Judges, who have passed their lives in sifting and examining evidence, would possess more qualifications for adjudicating on such a question than twelve men who, for the first time in their life, were called upon to consider it, and kept without food (most sublime invention!) till they agree upon it. But our adversaries are not beaten-they are content to abandon the Courts of Westminster Hall provided they may take refuge in the Court of Chancery. Here, they say, is the proper forum for the Probate of Wills.

Now how stands the case at present, and what are the advantages which the Court of Chancery possesses over Doctors' Commons?

It will hardly be believed by the uninitiated, or, according to legal phrase, by laymen, that there exists at this moment a manifest and palpable deficiency in the Court which takes cognizance of realty; and for this reason it will hardly be believed, because it is the aid which Doctors' Commons affords to the Court of Equity which prevents this deficiency from being as severely felt as it would otherwise be. In the latter Courts a will may be proved in two ways: 1st. In common form, that is, on the simple oath of the executor or party entitled to the greatest interest under it— and by far the greatest number of the wills of this opulent country are, to the undeniable and manifest convenience of society, so proved. 2dly. By

solemn form of law, that is, by examination of witnesses. Now it so happens that the Courts of Realty have no means of proving wills otherwise than by the latter mode, so that whether a will be contested or not, the most expensive and most dilatory mode is of necessity adopted. If any change is to be made, an impartial person might be pardoned for agreeing with the Ecclesiastical Commissioners, that the cognizance of wills of realty should be transferred to the forum which had the better and more efficient machinery, not that the forum which has the good and efficient machinery shall be abolished, and this machinery be transferred to the forum which at present has it not. It is equivalent to saying, in plain English, it is so very troublesome to be always borrowing your aid, that we should prefer, merely for the interest of the state, to take possession of your purse! It is of course assumed throughout, that the Court of Chancery is remarkable for the economy and swiftness of its proceedings. Some perhaps may remember the famous illustration which Mr. Windham borrowed from it, when he assailed the conduct of the government for the expedition to the Scheldt, and especially their declaration that they had expected to take Antwerp by a coup de main--" I should as soon have thought" (said that eloquent and gifted man, amidst the general laughter of the House)" of a coup de main in the Court of Chancery." Let me

[ocr errors]

not be misunderstood; the Court of Chancery is unquestionably the fountain of a most valuable jurisprudence to the country; it is hallowed by great and venerable names, and the dilatoriness of its proceedings has of late years been much remedied. I feel all reverence and respect for this ancient and august tribunal; but I do not think the practitioners therein are exactly in a condition to throw stones at those in Doctors' Commons, upon the score of delay or expense.

The Government, of which you were a member, most wisely preserved by their Bill, which unhappily never became a Law, the present Court of Probate, instead of transferring the business therein transacted to a Court where every thing is wanting machinery in the Court-experience in the practitioners,-where there is not even a registry or place of deposit in any part of the kingdom. Surely they would have been sadly wanting in sagacity not to have seen that in fact and truth what was sought was a change, not of a particular system, but of the persons who administered it.

WHEN AND WHY THE JURISDICTION OF THE ECCLESIASTICAL COURT IS INCOMPLETE.

It is a point generally kept out of sight by the adversaries of Doctors' Commons, though it was much pressed upon the attention of the Commission of Inquiry, that where the remedy to the

« PreviousContinue »