Again, when a man or woman dies a little better off, either with or without a will, if the whole personal estate does not exceed three hundred pounds, application can be made to the probate registry of the district—or if there be no registry near, to the Inland Revenue office of the nearest town—for a grant of probate or administration. All the necessary papers will be prepared at one or other of these offices; and the grant will be issued on payment of thirty shillings for duty and fifteen shillings for fees. In case the property does not exceed one hundred pounds, on payment of fifteen shillings for fees only. In none of these instances will the property be liable to legacy or other additional duty. The deceased’s debts, however, are not allowed to be deducted in order to bring the property under these amounts, and the privilege is restricted to the cases of persons who have died since the 1st of June 1881. Those who remember how costly was the process of proving a will or obtaining administration in the old ecclesiastical courts, however small the property might be, and those who more recently have had to pay their solicitor’s bill for the same services, will be aware that the substitution of this low tariff is a boon of a substantial character to all interested in the transfer of small estates at death.
While recent legislation has been thus favourable to the poorer classes, and has lessened the expense of obtaining grants in all cases where application is made in person at the probate registry, it has also introduced a much needed reform in the mode of levying the probate duty. The debts owing by any person at death can now be deducted from the amount of the personal property, leaving probate duty to be paid on the remainder only. Formerly, duty was required to be paid on the gross amount of the personal assets without any deduction whatever for debts. It is true that after debts were actually paid, application might be made to the Inland Revenue authorities for a return of the duty or a portion of the duty in respect of them; but difficulty and delay were sometimes experienced in obtaining such returns of duty, and frequent hardships were inflicted. Thus, where the property of a deceased person was nominally under a large amount, and the debts were almost as large, there was obviously no fund out of which probate duty could be paid. The executor was consequently out of pocket, often for a considerable time, and a disinclination to undertake such responsibilities was the natural result.
IN SCOTLAND.
The Scottish law applicable to wills has had an ecclesiastical history as well as that of England. The clergy were permitted to exercise jurisdiction in regard to divorce and succession because they were supposed to be ‘just persons,’ as also because they knew the art of writing better than most other ancient judges. Modern probate law does not differ materially in the two ends of the island, except in nomenclature. The chief distinction is that in Scotland a will does not require any ‘probate’ or proving; it proves itself, if it be signed before witnesses; and if it be holograph—that is, in the handwriting of the testator—its authenticity or validity is assumed, so long as not impugned. The Scottish analogue of English probate is obtaining confirmation of the executor. If the executor be named in the will, he takes it to a lawyer: the lawyer makes up an inventory of the estate of the deceased. This inventory is stamped at a revenue office by a stamp corresponding in cost to the amount of the estate. The stamped inventory, after being sworn to before a justice of the peace, is presented to the sheriff-clerk of the county in which the deceased had his ordinary domicile. The sheriff-clerk, in the interests of the revenue, satisfies himself that the stamp is correct as to pecuniary amount, and then grants confirmation under the seal of the court. That confirmation is equivalent to a judicial warrant to collect every debt and realise every asset specified in the inventory. If there be no will, or no executor named in the will, the sheriff appoints an executor, or executors, according to a recognised order, those equally near in blood, or having an equal interest in the estate, being appointed jointly; a proceeding which corresponds to the granting of letters of administration by the English Probate Court.
Scotland, of course, as well as England, enjoys the benefit of the statutory provisions applicable to estates under three hundred pounds. The persons entitled to succeed, or one of them, can do all that is necessary to transfer the estate from the dead to the living without the intervention of a lawyer or the burden of his bill of costs. He can go to the sheriff-clerk of the county of the domicile, give the requisite information; and the sheriff-clerk will do all that is necessary towards the giving of confirmation, for a fee that is regulated by the amount of the estate, but which is a merely nominal fee compared with what would fall to be charged by a regular professional man.
The courts of Scotland, as a rule, decline to interfere with the administration of the estates of deceased foreigners, among whom Englishmen are included. It is a necessary condition to a Scotch court confirming an executor or appointing one that the domicile of the deceased shall have been in Scotland. Some of the English courts are guided by much more expansive ideas of their duty, and will take charge of the estate of any man, if it be large enough to promise remuneration to Chancery and Probate practitioners. Within the last few years, the English Court of Chancery extended its long arm to administer the estates of Sir W. Stirling-Maxwell, formerly M.P. for Perthshire; and for years the officials of Chancery directed the management of his large Scotch heritable properties of Keir and Pollok, of course with such copious intelligence as Chancery persons have in regard to every property out of which money can be extracted, but perhaps not at a rate of remuneration quite so moderate as would have sufficed, had the greed of English lawyers and the benevolence of English judges permitted the estates of this eminent patriotic Scotchman to be administered according to the law of his own country. A similar stroke of usurpation was more recently attempted in regard to the estate of Orr Ewing. Less than the hundredth part of that estate, which exceeded in value a quarter of a million, had been left to a young man resident in London. This young man was under twenty-one, and therefore an English ‘infant,’ unable to take care of himself. Some officious person, calling himself a ‘next friend’ of this infant, attempted to have all this large estate transferred from Scotland to the Court of Chancery; and the Court of Chancery very kindly did what it could to gratify the zeal of this ‘next friend’ for the interest of the infant—and perhaps of some lawyers—of not very tender years. But this usurpation was resisted by the Scotch beneficiaries and by the Scotch courts. The House of Lords decided distinctly that the English Courts acted according to their precedents when they made this usurpation of jurisdiction over Scotch estates; and they decided also, but a good deal less distinctly, that the Scotch courts did not exceed their jurisdiction in resisting this usurpation. The courts of law in London and Edinburgh are thus in conflict; and the claims of each have so far obtained the sanction of the supreme tribunal of the country, that hereafter, unless the legislature interfere, no large Scotch succession can be considered safe from the purely benevolent but somewhat expensive supervision of the English Court of Chancery.
AN OCEAN MYSTERY.
A TRUE STORY.
Though it is nearly twenty years ago since the events related below occurred, yet the impression left upon my mind has never faded or lost the vividness of its outlines; and though there is nothing really inexplicable about it, yet the dash of mystery connected with it has always marked it in my memory as an incident of an unusual order.
We were driving on our way northwards from the gloomy and savage neighbourhood of Cape Horn, homeward-bound in Her Majesty’s frigate the dear old Bruisewater, now, alas, long since consigned to the shipbreaker. The fact of our being homeward-bound should have made all hearts light and all faces bright among our five hundred souls; but for all that, there was a general air of gloom in the ship, which was not to be accounted for save by one theory only—that of superstition. For things had not gone well with us since we had hoisted our homeward-bound pendant. True, we had sailed out of Valparaiso Bay with the said pendant streaming away, and with all our ‘chummy ships’ playing Should Auld Acquaintance be forgot? as we passed by them; and we had received and returned cheer upon cheer as we made our way to the open sea; while from the midshipmen’s berth had rolled up in a rich volume of sound, every night for more than a week before, the old strain, so well known and so lovingly cherished in Her Majesty’s service: