THE WHALLEY WILL CASE.
pIIBLIC attention has fastened itself very naturally upon the sensational element in the " Whalley Will Case," and especially upon one bit of evidence, but the proceedings suggest somewhat wider reflections. The fraud, no doubt, was a great one, much greater than most of the thefts or forgeries which attract notice, was executed in a most audacious and clever manner, and was demonstrated, past all doubt, by unusual and highly dramatic evidence. Mr. Whalley, once Member for Peter-
borough, an eccentric and ill-judging man, possessed at his death, in 1881, some £60,000. Nevertheless, he chose to lodge with a railway-porter named Thomas, paying him 9s. a week for such accommodation as he obtained. Falling ill in Thomas's house, he, it would seem certain, drew-up a will in favour of an
illegitimate son named Priestman, whom he had acknowledged and educated, and to whom he had repeatedly expressed his intention to leave his money. As he grew worse, he wished to send a letter to his son ; and, as he was too feeble to write, the idea occurred to Thomas or to Nash, a friend of Thomas who had been a solicitor's clerk, that it might be possible to carry out a really grand fraud, and obtain the whole of the dying man's large property. Mr. Whalley was known to be an oddity; he had no family, and, except to his son, he was not an object of special interest to anyone. Thomas accordingly wrote, at Mr. Whalley's dictation, a letter in pencil ; but plead- ing that the pencil had broken, induced him to sign it hi ink, and took it away for delivery. Nash then rubbed out the pencilled words, and substituted in ink a short will leaving the bulk of the property to Thomas, and only £5,000 to Priestman, the calculation evidently being that the latter, who had no locus slancli except under a will, would never be able to prove that Mr. Whalley's confidence in Thomas, which had induced him to reside in his house, had not induced him to make him his heir. The signature was, of course, not interfered with. The scheme, which deserves credit for its sim- plicity, for the adroitness of the mode in which a real signature was obtained, and for the moderation which induced the thieves to leave their victim a maintenance, very nearly succeeded. The will was proved without opposition, the property was con- veyed, and but that the guilty parties quarrelled among them- selves, Mr. Priestman would have been comfortably robbed of £55,000. He was, however, warned of the fraud, and after long civil proceedings—which he terminated at one stage by agreeing to pay Thomas £17,000 on the surrender of the remainder—the will was set aside, the compromise was declared void, Priestman took the property under an older will, and Thomas and Nash were tried at the Old Bailey, where they were sentenced to fifteen years' penal servitude. They defended themselves resolutely, but accomplices peached ; it was proved that Mr. Whalley, after the forged " will " had been signed, both thought and said he had left his illegitimate son everything ; and the original pencil-writing on the will revived so that many words could be traced—a possibility of which it seems librarians are well aware, but of which Nash, with all his astuteness, never dreamed. The filaments of paper pressed down by the pencil gradually recover their spring, and then the writing can occasionally be traced. That was a revelation of the kind used in novels, and more natural than the one upon which Miss Edgeworth relied in "Patronage,!" her villain having been far too astute to bury a modern sixpence in the seal of his forged old will, and it naturally interested the
audience. To us it seems, however, that the lesson of the case is not the expediency of using clean paper for forgeries, but another and a broader one.
Why do we allow the conveyance of such vast masses of pro- perty to be executed in such an informal manner ? A will may devolve a million or an estate of 10,000 acres, yet it may be drawn up in five minutes by a man whose mental strength may be nearly gone, just when he recognises that death is upon him, and at a moment when any influence to which he usually yields becomes absolutely irresistible. Scores of cases come into court in every decade in which the juries, though they give a verdict, are utterly puzzled at heart to decide whether the testator was com- petent or not, or free or not, or fully conscious of the effect of his own words or not; and though legacy-hunting is not in England the pursuit it once was in Rome, it still exists, especially among the poorer classes of respectables. The money is so much to them, and their sense of " claims " so strong, that desperate efforts are often made to secure a " favourable will. Men have been known to make the most astounding alterations in the disposi- tion of their property, apparently without reason, within a few hours of death ; and their wills, even if drawn by those who benefit by them, are still valid. No precaution is now indis- pensable to check or moderate " influence," or even to make sure that the dying man knows thoroughly what he is about, beyond insisting on the attestation of two independent and disinterested witnesses. These are, however, very often servants; and it is never necessary that they should know any- thing of the contents of the will, or, indeed, of anything else, except that it is a will, and that they signed it. Any influence may he used without their knowing it ; and influence, too, which morally amounts to compulsion,—the precise danger against which a hundred mortmaiu statutes have been drawn. The Legislature dreads the priests and the philanthropic money-gatherers, but apparently dreads no one else, though there is not an experienced lawyer in the country who has not some story to tell or hint to give of pressure more or less direct, or who has not wished occasionally that when the testator gives his directions the two should be atone. A decent lawyer will not draw a will in his own favour, though such cases have been known, and the will has still stood ; but he can protect his client very little, and, unless a personal friend, is not accustomed to remonstrate. Why should such transfers of property, large as they often are, not be sur- rounded with more checks ? The answer usually is that the testator is only giving away what is his own ; that the Legislature does not interfere with many other devolu- tions of property ; that a man may, and constantly does, ruin himself by a cheque to which no one objects. He may make a ruinous bargain on the Stock Exchange in five minutes, and in any state of health, or under any " pressure" from his broker ; and though he cannot convey land without forms, he can and often does sign, without thought, a contract to sell it, which is just as operative. That answer, however, is not sound. The law has differentiated will-making from any other method of devolving property. Not to mention the endless succession of Statutes in Mortmain, the entire Law of Probate, which was dictated by suspicion of fraud as well as by the necessities of the tax-gatherer, is based upon the assumption that in this particular case the conveyance of property does require special care and special legal forms. Why, then, should not those forms be made a little more effec- tive for their purpose ? It would, we suppose, even now, when opinion as to the liberty of bequest shows signs of a coming change, which will one day greatly modify English social con- ditions, be too much to suggest that the principle of the Law of Mortmain is j ust, and should be made universal ; or, in other words, that no will should be valid as against the Statute of Distributions unless it has been executed six months before death. The public, we fear, would reject that. There is a curious latent idea in the British mind that men are just on their death-beds —though they will not let the Charities or the Churches have the benefit of the notion—and that the death-bed will is likely to be fairer and more kindly than the will made when the testator was in full health. We should question the accuracy of the idea in many instances, the truth being that, although the en- feebled mind lets go its hatreds, it often becomes the slave of its fancies, and of the influences around it; while the fact that a death-bed will would not operate would often make the will written in health leas of an expression of provisional likes and dislikes; but the idea is as yet too dominant to admit of such
a radical alteration. The public would fancy that some chance of reparation, of doing right with unusual exactness, had been taken away from them, and would feel themselves oppressed. We do not see, however, any solid reason why a holograph will should be allowed, as against the Statute of Distributions,—that is, why the professional aid of an independent person should not be made as imperative as that of a doctor. The lawyer would be the proper person to summon ; but the doctor even, who is always about, or the clergyman, might be authorised to draw the will or copy the holograph one, and give a certificate that he has done so, the object being to secure in all cases the evidence of one disinterested and educated person, who could be punished for malfeasance both by law and by opinion, We want, in fact, a notary of some kind when wills are made, a witness who is for the occasion a public officer. It may be argued that the testator, if he chooses to be secret, has a right to be secret ; but the argument is not a good one. He is never allowed to be secret about any other property transac- tion of importance, even his cheque passing through the banker's hands, while his return . of his income may be read by any one who happens to be an Income-tax Com- missioner. Opinion, however—or, if necessary, law—would soon enforce professional secrecy, which, indeed, when lawyers are employed, as in the case of almost all important wills drawn at the proper time,—that is, when the testator is in possession of full health and understanding—is preserved with sufficient care. The cases in which mischief could arise from such a proviso would be very few, and, indeed, confined to those rare instances in which a man earnestly desired to alter his will, but died before the needful assistance could be procured. At the same time, the precaution would greatly diminish the chances of the forger, and place a strong check upon the exertion of influence, by the "devoted attendant," or intimate friend, or over-zealous housekeeper, who is so often in court as beneficiary under an incredible will.
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