TESTAMENTARY FREEDOM.
WE are very jealous in England of our Testamentary Free- dom. When any one proposes a law which would limit that freedom, as it is limited, for instance, in France, there is a sort of impression that he is a Socialist, or at all events, the kind of person to whose opinion no one of any judgment would accord even the least imaginable weight. So far as regards the esteem, or want of esteem, in which your judgment would be held, you might almost as well advocate a law compelling a testator to leave a tenth part of his disposable personal estate to the religious society of which he was a member, as a law com- pelling the testator to leave the greater part of his property to his own family, and forbidding him to cut out his relatives in favour of other friends. And yet, though this is the theory of English society,—and a theory so jealously held, that we can hardly imagine a change of opinion much greater than would be necessary- to admit of any law tending in the direction of the French limitations on the right of disposal of property by will,—nothing appears to have more difficulties placed in its way, than the actual exercise of this freedom in the case of large estates. Last week, our Probate Court was considering the will of a young Welsh proprietor who, though he had been as reckless as possible in his expenditure during life, was certainly in no sense incapable of understand- ing what he was about, or of forming his judgment on the kind of grounds—call them caprices, if yeti will—which with, perhaps, fifty per cent, of our race, pass current as adequate motives for doing what we do. It appears that Mr. Lloyd took somewhat arbi- trary dislikes, and formed, it may be, somewhat arbitrary alliances. Certainly he did not like his sister to inquire what his testament- ary dispositions were, or what he intendedto do with his jewellery ; but there are, we suspect, a good many Englishmen who would have objected equally to the curiosity of relatives however near, upon points so tender. Mr. Lloyd was also guilty of caprices in other respects. He spent in one year 2700 on tobacco,—certainly a large allowance for a fortune of only 24,000 to 25,000 a year. But then if a man is to anticipate his means at all, it is *perhaps less irrational to do so in order to gratify an over- delicate taste in cigars, than in order to gratify a taste for racing or gambling ; and every Englishman of fortune has, as everybody knows, an indefeasible right to anticipate even a strictly limited life-interest for the purpose of either racing or gambling, without having his independence of mind called in question for so doing. Then, again, Mr. Lloyd paid 2122
for lessons on the banjo,—lessons in negro melodies. But if he had spent the same in lessons on the violin or the flute, no one would have even remarked on the item at all as an extravagance, in the expenditure of the owner of 24,000 or 25,000 a year. And why should the soundness of a man's mind be called in question for that element of grim humour in his composition which preferred attaining com- parative excellence in negro melodies, to learning the art of inferior performances on a finer instrument ? On the whole, the evidence in Mr. Lloyd's case certainly went no further than this,—that he was a reckless and extravagant young man, who did, what he chose, when he chose, and who, having a good pro- perty, felt no scruple at all about frittering a good deal of it away in indulgences of a rather coarse and poor kind. No one of the least wise of the pecuniary transactions into which he entered during his life, would have been invalidated for its folly. It is certain enough that 'le would have been held to his purchase of the South-African-diamond plot, though it might possibly have been shown that he had not taken any wise advice before purchas- ing it; and certainly the gentleman who instructed Mr. Lloyd in the art of banjo-playing would, doubtless, have recovered the 2122 for his services, in any British or American Court in which the debt might have been sued for. If men who have been no sillier than Mr. Lloyd were to be considered incapable of managing their own affairs, there would be exceedingly little certainty as to the rights of property in this country. And in point of fact, • it is pretty clear that thriftless as Mr. Lloyd was, no one would have disputed his competence to decide on any of the bargains, foolish or otherwise, which he completed during his life-time.
But when you come to the question of will-making, it is clearly quite another business. Judged apart from the peculiar jealousy with which the law always regards,—and, no doubt, very rightly regards,—the professionally confidential rela- tions between a man of property and his legal advisers, there was, so far as we can see, nothing nearer to a real exercise of personal discretion,—we do not say that it was a first-rate kind of discretion, but only that it was his own, and one coloured by his own individual tastes,—than the choice Mr. Lloyd made of an ultimate heir, and of his principal legatee. He had known Mr. Allen for nine years before his death. It is certain that he had taken a real liking to him, and it seems likely that he made the gifts recited and the successive testa- mentary dispositions in his favour, from what was as near to a deliberate exercise of judgment as it was in his nature to exert, Yet, in spite of all this, very preibably the compromise arrived at, by which Mr. Allen took 25,000 and a pledge that no account should be demanded as to the pecuniary transactions between him and his friend during the latter's lifetime, was a sound one. Very likely, had such a compromise not been arrived at, Mr. Allen might, after a great waste of money on judicial proceed- ings, have lost all which the will proposed to give him. It is clear that the law regards,—and there is little doubt that it ought to regard,—the exercise of anything like a professional influence by a solicitor, for personal ends, with extreme jealousy and aversion. And though the will in Mr. Allen's favour was eventually drawn by a different solici- tor, yet it was through Mr. Allen's influence over Mr. Lloyd, first exerted in his position as his solicitor, that he had obtained the favour which he enjoyed, and that the services, whatever they were, had been rendered, which entitled him, in Mr. Lloyd's estima- tion, to his friendship. This being the case, it was, perhaps, as we have intimated, quite wise in Mr. Allen to accept a compromise by which he gave up the greater part of the advantages he would have taken under the will, and secured himself against any question as to those which he had received from the testator during the latter's life-time. But if this were wise,—as we are quite willing to admit,—what a light it sheds on the funda- mental reluctance of English law to permit a man to do by will what it would never scruple at all to sanction his doing by an exercise of living preference! What is more, public feeling is entirely in sympathy with the law in this sentiment of jea- lousy. If you hear men talking of the recent suit, it is ten to one that til's the interlocutors alike express themselves grati- fied at the compromise, and indicate an opinion that it would have been very wrong if the " family " had lost the property which the validation of the will of 1878 would have caused them to lose. The general feeling appears to be that Mr. Lloyd had been guilty of caprices enough during his life-time, and. that it is quite right that the power of the Law should step in to Pre- vent his exercising a final caprice in the disposition of his pro- perty after his death. Not that this caprice was half as capri- cious as some of those which he had a perfect right to indulge in, so long as they were limited to his own life-time, If he had squandered the whole of his available property during his life, the fact would have been regretted; but no one, in all probability,' would have tried to get him declared incompetent to manage his property. But the moment you come to a man's disposition of that which he cannot enjoy himself, English feeling changes. On the one hand, it will not deprive him of one tittle of nominal freedom. On the other, if he exercise that freedom with any of that levity which public feeling deems indecorous, nothing is more popular than a decision,—or what is equivalent to a decision,—that the testator was under " undue " influence, and that his exercise of discretion must be disallowed. This is just the via media which English public feeling approves. It cannot hear the notion that any general limitation should be put on grave and reasonable people, who feel family ties as they ought to feel them, in relation to the disposition of their property after their decease. That seems to most Englishmen an interference with one of the most " sacred " of the exercises of individual right. But at the same time, when any man appears to exercise this right with a flippant disregard of whet the majority think sound personal judgment, they are delighted to find fault with that exercise of discretion, and to see it set aside. Levity may be pardonable in life-time, but it is not pardonable in a last testament. It is not pardon- able in a family man to make light of the ties of family, and put a stranger in the place of his relatives, unless, indeed, his whole conduct indicates a grave and solemn disposition with which any- thing like personal caprice is incompatible. If Mr. Lloyd, instead of spending money on banjo-players during his life, had spent it on elaborate and mischievous doles to the poor ; if, instead of making a young solicitor of his own his chief legatee and ulti- mate heir, he had divided his personal property amongst edu- cational and municipal trusts; if, instead of going to the South- African diamond mines and shooting at the wick of a candle, he had amused his leisure by publishing foolish tracts, and taking the chair at useless and extravagant public dinners,—then, we suspect., he might even have disinherited his family without public opinion being in any way hostile to him. But public opinion approves of testamentary freedom only for the grave and pious. And when men do not appear to be grave and pious, it is delighted to find an excuse for depriving them of this right. To discover the reason for this curious state of public feeling is not so easy. But perhaps the secret is this,'—men count actions done in life as in some sense less sacred than actions the sole consequences of which come upon those who survive you. Dis- cretion as to the former it cannot control, without making men into slaves, But discretion as to the latter it secretly regards as a much more important kind of discretion, and there- fore it rather likes to see this discretion when exercised by men of little weight of character, invalidated, and things regulated according to other schemes than those which they would have prescribed. Posthumous arrangements the British mind regards as matters quite too sacred for light-minded persons. This is indeed part of the same general notion of things as that which regards life as in fact less seriousthan death, and much less serious than the life to come,—which declines to re- gard life here and hereafter as all of a piece, and attaches a sort of personal honour to all acts which determine -what is to be when the person who thus determines, is "no more."
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