This Bill has attracted an unusual amount of interest for a Bill of this nature both in the House, and in the country at large. I think it is a good thing that it has, because it is well to realise that Bills and legislation of this nature touching private law and the law of the individual have very far-reaching effects on the individual and on the community. Under modern circumstances, it is very important that this House should watch very carefully what we legislate for because there may be tendencies in the administrative machine to shove the community in certain directions for very good reasons that are not altogether what the community want.
This is a very important Bill not only in its substance but also for the amount of thought and preparation that went into it. For that very reason, our criticism must be forthright and our thoughts and care must measure to the thoughts and care that went into this Bill. In other words, we are not dealing merely with a mechanical or an automatic action. We are dealing with a positive setting of an aspect of social policy. I am, therefore, very glad to find that an experienced responsible Deputy such as Deputy J. A. Costello, a veteran lawyer of great renown in the legal history of this State, should express himself as he did here today. I think that most people who have had, on the practical side, experience of the problems with which he dealt would sympathise very greatly with his approach.
At the outset, though I shall be equally critical in some regards, I want to join Deputy J. A. Costello in the tribute to the people who did the thinking and the work on this Bill even though, I too, will fundamentally disagree on the controversial sections. However, I should like to join in that tribute. I should also like to say—and I think it should be said—that if somebody does not start the hare, so to speak, there will be no course: in other words, this problem had to be raised. It is no reflection on anybody to say that the problem was raised and faced. Furthermore, it is no reflection on the person who raised and faced the problem to say that a course was set. Rather, I think it is a matter for praise for the initiative involved in this. So, in any criticism we make on this measure, there must be no implied criticisms of another nature. Let us deal with the matter, as Deputy J. A. Costello said.
Before we get to the controversial parts of the Bill, the fundamental fact of course, is, as he stated, that the Bill combines features that are found in two types of Bills in a somewhat unusual way. Normally, we find that a Bill which comes before us is either a Bill that has something completely new in principle and the new principle is isolated and becomes the focus of discussion or else the measure is an administrative or consolidation Bill which is generally referred to as a Committee Bill. This Bill cannot be dismissed facilely as a Committee Bill, as some people on the Labour benches have dismissed it, or treated as a principle Bill, as the Leader of the main Opposition Party treated it. It is neither and, at the same time, it is both. This Bill, for the bulk of its actual content, is a consolidation and law reform Bill of great merit. The remainder, Parts 9 and 10, the testamentary parts, are the controversial parts and do introduce new principles into our law. The reason I want to expatiate on them a little further later on is that I suspect that the thinking behind it introduces a new attitude to jurisprudence when considered from the point of view of our traditional legal approach. These two things are separate and we should not be confused in them.
There are two separate things in the Bill which merit the careful attention of this House and for that reason, because of the nature of this measure, I agree with Deputies who said it should be committed to the whole House. I have a feeling the Minister is sympathetic to that view. This is not a case to be dealt with by merely a committee of experts and disposed of merely as a Committee Bill.
To come to the Bill itself, in its first Part it is a consolidation measure, to some extent, which should be welcomed from the point of view of the community as it will help to make law more fully known and very much more acceptable from the point of view of the practitioner, of the courts which may have to decide, and the administration which may have to interpret. I should like at this stage, in passing, to pay a tribute to the energetic efforts of the Minister's predecessor in the office of the Minister for Justice in getting ahead with consolidation and law reform and, through him and with the present Minister, the people who did so much of the staff work behind the scenes.
Anybody who knows anything about research in statute law and of how statutes and decisions accumulate will appreciate the industry and the devotion and the sagacity it takes to coordinate and to assemble the material that has grown in that natural way. In so far as the Bill does consolidate existing provisions and order them, I think it is, in its own right, to be welcomed. It also does something that becomes necessary from time to time: it provides for the rearrangement of the jurisdiction of, say, the Circuit Court and the superior Courts. The changing of the amounts of money involved, fixing limits, is something which must happen from time to time, and it is an important function which must be adverted to.
In so far as the Bill does that, it does it usefully and any questions that may arise on these details can properly be dealt with in Committee. I am glad to see that the Bill deals with what has been a traditional problem in property law. It arose for reasons the Minister gave in his speech. My own experience has been that it was liable to be a bit of a nuisance. I cannot say it caused all the difficulties that some people say it caused. On the average, in cases where problems arose from the difference between personalty and realty, real difficulties have been few in modern Ireland in recent times. There nevertheless was untidiness.
In regard to registered land, the difficulty has been dealt with previously. It is high time this provision was inserted and that this side of the law was rationalised. That this was done in the Bill is right and proper.
So far, one can have nothing but commendation for the Bill. Naturally, there were problems, some of them thorny, and again I think one must commend rather than condemn the attitude of mind that wants to face up to them. It is very easy to let sleeping dogs lie, but they may be in the way. The question of simultaneity—perhaps the death of two people, husband and wife, at the same time—has been a problem not only of academic interest to lawyers but also a practical one. It is not easy to see the best solution to it. Let us say it is not a major matter of law, of major interest to the community, or even of very major interest to the individual. It is something that can happen, does happen infrequently. When it happens, it can give rise to anomalies but, viewing it by and large, it is not a very serious social problem. Neither is it a serious legal problem. There is no reason why the problem should not be faced, however.
Because of that, I am rather easy, personally, on such a problem. I do not think I would join very greatly in any issue over it, but I do think it is dangerous to make such problems the focal points of discussions on jurisprudence—to make such relatively unimportant problems so much the centre of discussions on jurisprudence as to make them reasons for changing from the traditional system to some foreign system or getting systems of jurisprudence mixed together.
That, of course, is the danger of the academic lawyer. I am quite prepared to take this or any solution in regard to simultaneity. It is a problem, not a very important one. Well and good, let us go abroad or anywhere else for a solution but let us realise it is, in practice, from the social viewpoint, from the viewpoint of the community as a whole, indeed of the individual, relatively unimportant. I commend the attitude of mind that will grasp the matter rather than the one that will slip by it.
In so far as all these things are very excellent features of this Bill, it would be wrong for it to go forth that this is a bad Bill, or to have a tendency to denigrate itin toto because there are controversial features in it. Before coming to what is really the kernel of our discussion, perhaps I should mention one or two points in regard to administration. Perhaps “administration” is a bad word to use in this case because it might confuse it with the term used in relation to devolution— the question of local registry, the function of the county registrar or the customs official. What is really involved here is not a question of law: it is a question of ordinary practical working, but you must have regard to the fact that it is undoubtedly tied up with the administration of the law and how the law takes effect. Therefore, it should be organised, to my mind, within recognised legal mechanisms.
This is not a plea for lawyers, judges or legal procedure. It is very necessary that these things should be done properly, in an orderly way, with relation to their background, and their background in a case like this is completely a legal one, This is why I commend the Minister on withdrawing section 37 and on his approach to the county registrars.
I think it is illusionary for Deputies like Deputy Tully to think that a better service will be got from some other officer in administration. First of all, if there is any question at all, the matter will be so closely related to the courts that an official of that nature should have knowledge of it in the first instance. Secondly, the experience is there and traditionally the county registrar's office, and the county registrar, have been dealing with such and related matters. Therefore, that amendment is an excellent one and will not have any great opposition. There are, however, other difficulties which must be faced in all these cases and they are the convenience and cost. I shall return to this question of costs later on another matter. One of the greatest difficulties in dealing with the enforcement of law, of private law, is the cost, if it has to be referred for anything in the nature of a judicial decision or even a quasi-judicial procedure.
In administration of this nature, you have cases for free services. You have to meet two things here: to provide the services in the county registrar's office by the county registrar and the second is that a fee should be minimal. Another difficulty is location and at first blush one is tempted to suggest that, perhaps, through the district court clerks the matter could be centralised into the county registrar but I can see administrative difficulties here.
Three points have, therefore, to be met and the suggestion that the county registrar perform the service is excellent provided he is not asked to exercise judicial functions, so to speak, that is to make decisions of interpretation. If he is empowered to deal as the registrar then the fees, the cost of doing this, should be minimal. Lastly, there is the time at which he should be available and there is the location. The real difficulty is location but if necessary that point can be taken up on Committee Stage.
Perhaps this could be a good time to make a remark for Deputy Dillon's benefit. Last night Deputy Dillon made great play about White Papers and that this should have been promulgated as a White Paper, or something like that. To tell the truth, I cannot see the essential difference between a White Paper and a green paper. We have got it much more definitely in the form of a draft Bill than we would get it merely in the form of a white explanatory memorandum. I have often listened in this House to people on both sides complaning, and I have done a bit of it myself, that Ministers came in with their Bill so set that they would not change their minds about it. I have heard many complaints that the Minister was so committed when he came to the House that he was not willing to listen to suggestions or have another look at its provisions in the light of the discussion and the developments brought about thereby. Surely if there is anything in that criticism the people who have been so fond of making it should be very pleased that we have an approach to this Bill which is so obviously in the interests of the community. Here the Minister, and his predecessor, were prepared to issue a Bill for consideration and for discussion and had, like a judge, an open mind to postpone final decision until the matter had been carefully examined. Perhaps the partisan in us all makes it inevitable for us to say contradictory things but let us remember the approach which Deputy J.A. Costello indicated today. Deputy Costello is a veteran lawyer of very great standing in his profession and he also has the advantage of knowing the administrative side and we could heed what he has said in that regard.
Now, to come to what unfortunately appears in the public eye to be the Bill. To some people a thing is either black or white; some people have decided this part is excellent and some have decided that this part could not be worse. It is not as simple as that. I had better declare myself at the outset as being one of the severe critics of the draft, and that I remain, as I hope to show. Nevertheless, some move had to be made. Now we will take the original Bill, the Bill which Deputy Dillon would argue is the Bill before the House. It is approached from a certain point of view. Needless to say I cannot read the minds of the people who were doing the actual drafting nor can I know the thoughts that prompted them but I can see a double approach to it. Even if one does object to something there is no harm trying to see the approach of the other side. As I see it, these provisions stemmed from the inofficious or capricious will. The inofficious will has been notorious and, in certain cases is again just like simultaneity, one thing on which, at academic discussions on law the lawyers will fasten. It is an anomaly, an injustice, and something that calls for a remedy if remedy there be. All that, any reasonable man will appreciate.
The Minister's speech and the explanatory memorandum show a certain approach. I do not use the next word in any way disparagingly. That is the trouble about saying some of these things. I want to take it exactly as Deputy Costello did and say there must be no disparaging imputations put on the words I use. This has the hallmark of the academic lawyer's approach. I have great admiration for the academic lawyer in some ways, but we here are concerned with law as a social and practical thing. The thinking seems to be focused on foreign jurisprudence rather too much to the exclusion of the traditional legal thinking of the society whichde facto we have. I am not for a moment discouraging research or looking further afield if we can get something better. Again, there is no element of disparagement in this. It is an excellent thing to do.
I want to bring in, if I can, a small element of corrective balance. In reading the Minister's speech, the explanatory memorandum given in the first instance, and any other evidence before me, I can see no more extensive basis for the proposals in this measure than the three following. If there are more cogent reasons, I should be, I hope, only too glad to consider them. It appears to me to have been generated somewhat after this manner. A Bill to deal with the complications of succession law as it is today was desirable and was being produced. All aspects should be looked at. That was the first consideration. The second would appear to be the inofficious will, the manifest injustice of a testator capriciously disinheriting those to whom he had a duty. Stated netly, that certainly is a problem and, if it is widespread, an important one. Thirdly, in considering this problem, it seems to me it was the law reviews, the academic lawyers and the people of that nature who were consulted and who carried weight in the final decision rather than the judges and practising lawyers. In the Minister's speech we had quotations fromThe Law Quarterly Review. That was answered by Deputy J. A. Costello. What you really want in practice is the decision. I would have been much more impressed if I had dicta from judges in particular cases when they were confronted with particular problems.
Now, if that is the basis of it, I will go so far in answer as to say that I think I agree we should meet the problem of the inofficious will, that it is not right in principle anyway for a man to disinherit his wife and children, so to speak, on a whim or for inadequate motives. But when you find that the remedy proposed is going to have the effect the proposals originally in the Bill and, to a minor extent, the proposals before us have, then we must stop and ask ourselves some further questions.
The first danger any practical lawyer will recognise associated with a problem of this nature is that hard cases make bad law. Remember that. One interpretation of that is this. You may strain to do justice in a particular hard case, but in straining to do so you may produce a situation in law that brings infinitely more injustice afterwards. It is one of the facts of human organisation. It is, unfortunately, true that that is the case. Hard cases make bad law. Therefore, we have got to ask ourselves in regard to this Bill is this a case where the hard case of the inofficious will is going to result in bad law.
Unfortunately, I feel the danger is there. It must be guarded against. As an example of the kind of thing I am trying to say—the danger of the bad law resulting from the hard case of the inofficious will—the first symptom is to be found in the Bill itself. Once I saw the Bill, read Part IX and then saw that Part X had to follow, I saw the red light. When you bring in a provision and then have to start legislating for the exceptions from your provision —all too often in law it has to be done—it is something to be avoided if possible. When you find you are making a decision in principle of that nature and you then have to legislate to take cases out, what it means is that your principle is not or should not be as all-embracing as you have made it. The trouble about that part of the Bill is this: to meet the case of the inofficious will, that hard case, an all-embracing decision in principle was made on the implicit assumption it was all-embracing, and then immediately you find you have to legislate out exceptions.
Then, again, as has actually happened in the House with the Minister himself, you have to subtract from that again. That is a dangerous symptom and may have been an unavoidable symptom. It is not anything for which either the draftsman or anybody behind him, any of the staff officers preparing the Bill, are to be in any way impeached. In fact, they are to be commended for seeing these difficulties— fully commended for it—but it does set the question that when your principle raises this position for you perhaps you may have to review your decision in principle.
Perhaps, a Cheann Comhairle, you might allow me to repeat netly the point I made in order to make what I am going to say intelligible? My approach was this: seeing this was legislation to meet the hard case of the inofficious will, I was asking does a hard case not make a bad law and I then saw the symptoms of that happening in the Bill itself in that in legislating for the principle on the basis of the hard case immediately within the Bill itself, in Part XI, there had to be exceptions made. We have not even yet seen the end of the exceptions, and we have had exceptions to the exceptions. I was pointing out that that kind of thing can be a pointer to this question: is your principle as enshrined in those sections as all-embracing as it appeared to have been when it was accepted as a basic principle?
Further to develop the weaknesses from the point of view, does the hard case make the bad law, we have to ask ourselves two further questions. One question that must be asked is: is that case so hard that you must make bad law and, afterwards, how hard or how bad will the bad law be that follows it. When you have asked all these questions and answered them your final result must be a matter of judgment.
Let me then ask the second question which I pose myself: how bad in this country is the case of the inofficious will; how serious a social or even an individual problem is it? I am sorry I cannot accept Deputy Barrett's statistics as meaning anything because unfortunately, as far as wills are concerned, despite what others have said, I think people avoid having them tested in court. It is only exceptional ones and that would be for reasons of family pride or otherwise. Secondly, the law has crystallised in such a rigid way on it that you are not likely to get much change on any speculative matter where there is a will concerned.
So that, I am not impressed by the statistics in this but what I do feel is that, by and large, most people who make wills make proper wills. Here I should say straightaway—I am sorry; I am off at a tangent; I should have said it earlier—it is important to realise at this stage that the intestacy parts of the Bill are apart from the testamentary parts. In other words, in so far as intestacies are provided for in the Bill, I do not think there is anything fundamental there; we can talk about it; but, if you have provided for intestacy adequately it is all the more reason for adopting the attitude that I am adopting from this out.
Many people do not make wills because they feel the intestacy is adequate for their situation. In regard to those who do, in the vast majority of cases the wills have been satisfactory. Secondly, we must not blind ourselves to the fact, although it will give us no legal arguments for debating societies or anything else, most ordinary people when they make wills make decent wills because blood is thicker than water and most decent people look after their spouse and their children in a more sagacious way and in a way that is far more applicable in the particular case than any blanket legislation can do.
In this regard I am tempted to think of what one reads about countries that have divorce. In some countries that have divorce one would imagine reading the reports that everybody was divorced or something like that. The plain fact of the matter is that in these countries no less that here marriage and family life are treated by the vast majority of the people as something sacred. The instinct is in all of us, I hope, to decent things and decent feelings and it is a fundamental instinct in the human being to be devoted to spouse and to family notwithstanding the practical frictions of life.
In the same way, with regard to wills here, I feel that this case of the inofficious will, although it is obviously something for the pundits and for the writers of legal reviews to discuss, is an anomaly. It is a problem that should be solved if it could be solved and should be approached in order to get the solution. Nevertheless, because of what I have said, because the normal and the good are so normal, they do not attract attention. The abnormal and the forced do. We should not lose our sense of balance.
I, therefore, ask this question which I cannot answer categorically. I could come, perhaps, to a final choice for myself but will make no attempt to answer it. Every Deputy must do that for himself. The question is: how great is this evil of the inofficious will? How much real injustice is being done by it and in what type of case?
Moving from that, let us see what consequences can follow from the principle which this Bill introduces into our law that two-thirds of a man's estate is no longer disposable by him by testamentary disposition. Do not let us get involved in such details as where half is going to the spouse and what happens when the spouse is dead. These are details that have to be attended to. Well and good; let us take the essential point in it for a moment. This Bill proposes that the greater part of a man's estate is no longer at his disposal by will and, furthermore, it provides that certain people, namely, his spouse and his children, are legally entitled to a certain proportion of that whether he wishes it or not. That is the new principle that this Bill introduces and for the moment I will take it as in the original Bill, always conscious of the amendments that the Minister has brought in, but the Minister's amendments are palliatives only. The principle still remains.
What are the consequences of that? The first case, of course, that was immediately made, which, in fact, seemed to be a case based on the very reasons why the Bill was brought into effect was, why could not a man leave the whole lot to his wife? Again, I do not want to invite the Minister to say: "I have done all this." He has. I want to go through, to follow the process here. Why could a man not leave all to his wife? Because we had to deal with the case where, say, a man died leaving a young family which would have to be provided for.
The next type of case which, if the original provisions had remained in the Bill, would have created great difficulties was that of the small farm or small business. A case in connection with a small business came to my notice when this Bill was promulgated. It concerned a man who had a flourishing business and who died intestate, leaving children. The business had to be sold and everything went, which was the worst thing possible for all the family. If there had been a proper arrangement, a son who was able and willing to carry on the business could have done so. The tragedy of the situation was that no such arrangement could be made. That was very many years ago.
There is also the case of the small farm. You may wonder why I am discussing all this when it has been met by the Minister but I have a point in it to which I shall come later. Where a farmer's son remains on a small farm as virtually an unpaid farm labourer for the best part of his life, has he not, in effect, bought an interest in that farm? Provision must be made not only for the integrity of the farm but also for that further type of case which is very difficult to deal with by the doctrine of advancement. One would think the man who stayed on the farm, if you like, in expectation, would be the obvious object of his father's bounty. It is not enough to say that the doctrine of advancement will meet that point, on the one hand, or that consents will meet it on the other hand, for two vital and different reasons.
The doctrine of advancement will not meet the case. There are three sons on their father's holding. One of them stays on—this is in the past, I think; conditions have improved in rural Ireland but there was a time when this was true—as an unpaid labourer for the best part of his life. The other sons were not prepared to stay on as unpaid labourers but without any positive advancement from their parents, they went off and maybe did better for themselves in England or elsewhere. There is the anomalous position of the boy who stays at home working the farm and acting as an unpaid labourer. The Minister has met this by taking the word "dependent" out and the only reason I am discussing it is to get at a principle which is involved. The original proposals in this Bill would mean that the man who went off and had no real claim would get a share of the estate and the man who had actually earned it by his work would not get it. I have dealt with that in some detail in order to indicate the anomalies which can arise from this type of legislation, and neither the doctrine of advancement nor the mathematical apportionment of shares can meet any such case. I mentioned consents a little prematurely and I shall come back to that in a moment, I hope, in a more logical way. There is a first symptom that makes one beware.
The next question is that of independent children. Both Ministers have been very ready to meet that point but in that regard I want to come back to my first point, that hard cases make bad law. In regard to the fact that the Minister now finds himself making exceptions for dependent children, for the farmer's son and for the wife, is this trend of exceptions a further pointer to the fact that the hard case has been unduly influencing the legislation in this regard?
I shall raise this on the Committee Stage again but in passing, I want to ask the Minister this question, seeing that he has—and rightly so—excepted children who are independent so that only the spouse and dependent children are involved: why bring the non-dependent children into the reckoning at all? Why not calculate their share and leave their share free? If it has been decided that children who are independent should not have a statutory claim, it does not seem logical that their share should be brought into the non-disposable part of the estate. Their share should go to the free part rather than to the tied part. However, that is a matter with which we can deal on Committee Stage.
Not only is there the pointer of the wife being made an exception, the dependent children being made an exception, the farmer's son and the family business being made an exception, but if you go that far, there may be something further than that in the family interest. There may be other cases not necessarily a farm or a business but a family house or a bit of family property. There may be some reason for keeping that property and giving it to one person rather than to another. If it is brought into question at the will stage, it may cause considerable embarrassment. There is also the question of the rights to the family dwelling. Again, this is an exception which is compelled by circumstances only to complicate the law. The more you go on with this, the more you find yourself with a great many exceptions. Here you have a provision providing for a great many exceptions and, further to hedge them round, you find you have something more complex than you envisaged at the outset.
Is that not yet another indication of bad law? Are not all the characteristics of good law simplicity and directness? The manifest intention is to get order and simplicity and it is not commendable to have in legislation provisions which complicate the law. I referred to the exceptions in Part IX. Here we get into further difficulty. I understand—indeed, I sympathise with —the very able people who dealt with the provisions of section 119 but now you see because of other considerations, we have to delete subsection (4) of section 119. One is then left with a very restricted form of exception in what remains and, as Deputy J. A. Costello pointed out, that is by no means adequate. He mentioned a case very similar to a case of which I have a note here.
What happens in such a case? You have provided only for a decree ofa mensa et thoro. What about actual physical desertion? Suppose one spouse deserts another, what happens then? Deputy Costello's case can be pushed a little further. Suppose a spouse, having failed to get a separation, finds the situation utterly unbearable and clears off? What happens in these few cases? I believe they are comparable in number to the inofficious will cases where one married partner misbehaves but, for the sake of the children and for the sake of the Faith, they stay together and make the best of the situation. But one partner may leave the other. What about a case like that?
How is such a case to be provided for? You have the hard case of the inofficious will but, equally under these new provisions, you could have a hard case in relation to an innocent woman who might have a dependent sister or relative who might be the only friend in her distress. That woman may have been deserted by her husband. Is he to get all her estate, or even part of it, notwithstanding that? But the situation is even worse than that because if you try to legislate for that exception, you get caught the other way. There is the case of the woman who has had to leave her husband because he becomes unbearable and impossible because of drink. She quietly does the decent thing, having stood by him as long as she possibly could. If we provide for the first case, how do we deal with her? One gets into a regular morass of exceptions and counter-exceptions all because of the inofficious will.
I anticipate now that I will be charged with making imaginary exceptions or ones of such rare occurrence that they are not of importance. Fair enough, but let me ask a question: is the inofficious will not as infrequent as the type of case with which I am dealing here? It would not take any great ingenuity on anybody's part to produce cogent reasons and if one were to sit down in the study and peruse the law cases, using one's imagination, one could paint a much more intimidating picture just as one can imagine all the horrible cases of inofficious wills, even picking out some very bad cases in forensic history.
Everybody feels a very fine job is being done in tackling these problems and the reason I advance these arguments is that I believe we must look at the practical side and ask does a hard case make bad law? We are not out of the bog yet even when one considers the consequences. Another symptom of the dangers in principle is the fact that it had to be foreseen that settlements could have a bearing on the problem by either defeating the purpose of the legislation or from the point of view of protection where the settlements would be meritorious. Immediate reflection showed that both the suspected dangers were very real.
One of the troubles in dealing with testamentary disposition and the curtailing of it is the fact that it is very difficult to do that if you do not curtail settlementsinter vivos. In other words, the date line of a man's death is not sufficient. You cannot partition everything on both sides of that line and what he does before his death may have a very grave bearing on what will happen after his death in relation to his property. The Minister has rejected the principle of ten years, but we are not free of trouble yet and one comment in the debate is of some importance. If there must be a search within three years of death, if one is limited to three years, anything that depends on that uncertain period will be suspect. Secondly, it is very difficult to say what would be in anticipation of a testamentary disposition and what would not and your only answer would be to bring in a phrase that would invoke the jurisdiction of the court.
What is to determine, whether it is ten years or three years, that the transaction is in defeat of testamentary intention or testamentary liabilities? Suppose for a moment a man owns some property and decides to dispose of it for cash. He says: "Mary Anne will not get that anyway", and he blows it good and hard. Who is to say that was deliberately in defeat of Mary Anne's legal rights, or whether it was a legitimate thing for him to do with his own property while still alive?