Page:Harvard Law Review Volume 8.djvu/504

488 488 HARVARD LAW REVIEW. There is one recent English case which does not properly belong in the list,^ and which yet deserves special mention. In Re Whita- ker, L. R. 42 Ch. D. 119 (C. A. 1889), a sudden attack of angina pectoris had cut off a merchant who was in the act of changing his will. As a result Whitaker, already a rich man, got ^400,000 which the testator intended for the petitioner. Recognizing some imperfect obligation, he gave the petitioner a voluntary promissory note for ;^50,ooo, and had, when he became insane, paid three yearly instalments of ;^5000 each. The beginning which he had made, and his expressions in semi-lucid intervals, showed that he had had a clear intention to pay the whole sum, and this intention the court carried out, repudiating all the while every suggestion of legal obligation. "It is," said Lindley, L. J., "a debt of honour, not in the sense of a gambling debt, which I consider a debt of dis- honour, but a debt of honour which this court ought to recognize," Accordingly the court ordered payment out of the lunatic's /;V«- cipal. How far they would go in cases where they had no sane intention to guide them, one cannot of course tell. It would take a strong case ; but, given a strong case, there seems to be no good reason against such payments,^ and the court has crossed the Rubicon, and faced the bugbear of " giving away another man's money," in paying out Whitaker's principal on such a claim as this. III. In the conventional standards of the so-called imperfect obliga- tions, which are the standards that the courts are really applying in these cases, the claims of near kindred undoubtedly stand high. But the normal man certainly does not for this reason limit his benevolence to his relations, and Ex parte Haycock, Re Earl of Carysfort, and Re Willoughby, stipra, show that the court will impose no such limitation. It would be equally an error, however, to infer that the court in these cases acts like a board of charity, to canvass the merits of any person who thinks that he deserves a 1 It should be in class B, supra. 2 Suppose, for example, A has an aged mother, and, expecting to survive her, makes his will, leaving all his property to a clergyman. Suppose the clergyman, who was expected to devote the money to purposes of general benevolence, becomes a lunatic before learning of his legacy. Could not the court keep the mother out of the poor- house.'* And if the lunatic's other property would keep him from want, would the court shrink at spending the principal of this legacy on the testator's mother if it became advisable tu do so ?