By the statute G Geo. 4, c. 53, s. 4, it is provided, "that the person intrusted, by the King's sign manual, with the care and commitment of the custody of the persons and estates of lunatics, after the return of any inquisition, and notwithstanding any petition or order which may be depending, relating to a traverse of such inquisition, may make such orders relative to the custody and commitment of the persons, and the commitment, management, and application of the estates and effects of any persons who shall have been found lunatic, idiot, or of unsound mind, by any such inquisition as he shall think necessary or proper; and all acts, matters, and things which shall have been done by any persons appointed committees of the persons or estates of the persons found lunatic, idiot, or of unsound mind, as aforesaid, or by any other person or persons, shall be and are thereby declared as valid and effectual; and such committees and other persons respectively are indemnified in respect of such acts, matters, and things, against all actions, suits, and proceedings, damages, costs, and expenses to be brought, commenced, or recovered by the person or persons so found lunatic, idiot, or of unsound mind, as fully and effectually as if such inquisition had not been traversable, but no further or otherwise." In one case it was ordered, that the custody of the person of a lunatic, ad interim, should be granted to his sister, and that a gentleman should be appointed the receiver of the estate of the lunatic, ad interim, if he would accept the of fice, and give security to account, to be allowed by the Master (c). In another case, on the petition of the lunatic, it was ordered, that the committees of the estate should pay to the lunatic's solicitor the sum of money he required for the purpose of trying the traverse, on his undertaking to apply the same, or a sufficient part thereof, in the necessary expenses of the traverse, and to account for such money before the Master; and that the committees should be at liberty to oppose the traverse; and that the lunatic should be at liberty to appear on the trial of the traverse (d). (c) In re Frank, 11 Aug. 1825. (d) In re Sir G. O. P. Turner, 27 June, 1826. Again, on the petition of the sister, next of kin and heiress-at-law of a lunatic, an order was made for granting the care and custody of the lunatic to the petitioner, until a committee of the person should have been appointed; and for delivery of the lunatic to the petitioner; and for restraining certain persons from visiting or interfering with the person of the lunatic without the Lord Chancellor's order (e). Where a petition to traverse the inquisition had been presented, and an immediate reference to the Master for appointment of committees could not be obtained; on the petition of the heir-at-law of a lunatic, it was ordered that the lunatic should be removed to a particular place, and that the petitioner should be at liberty to adopt such means as two physicians should approve, for the due care of the person of the lunatic, until the appointment of the committees of his person and estate, as thereinafter directed; and it was referred to the Master, sitting during the vacation, to appoint proper persons (not the petitioner) to be the committees of the person of the lunatic ad interim; and that such committees, when appointed, should act under the direction of the physicians, with respect to the care of the person of the lunatic, until a permanent committee should be appointed, or until further order; and it was also referred to the Master to appoint proper persons to be committees of the estate of the lunatic ad interim, such persons giving such security as the Master should approve, and the circumstances of the case might require; and such committees of the estate and effects of the lunatic ad interim were also ordered duly to account for the same, until a permanent committee should be appointed, or until further order (ƒ). (e) In re Chapman, alias Dunn, 1 Aug. 1829. K 130 CHAPTER V. OF THE COMMITTEES OF THE PERSONS AND ESTATES OF LUNATICS. SECTION I. Of the Appointment of Committees. THE regular course pursued upon the return of the inquisition, where there is no traverse, or after the trial of a traverse upon which the party is found to be a lunatic or of unsound mind, is, for the Lord Chancellor, by letters patent under the Great Seal, to commit to one or more person or persons, during pleasure, the custody of the person and management of the property of the lunatic, with a reasonable allowance out of his estate for the maintenance of him and his family (a). The custody of lunatics being a branch of the King's prerogative, the appointment of the committees must necessarily be in the discretion of the person to whom that branch of the prerogative is intrusted; and to whom therefore the application for the appointment of committees must be made. There is no instance where a party has been found a lunatic under a commission, in which the (a) See the form of the grant in the Appendix; there are some forms of old grants of idiots and lunatics and their estates, in West's Symbol. part 1, sections 365, 368, 369 and 370; and a copy of a similar grant, in the 16 Car. 2, will be found in Hargrave's MSS. in the British Museum, No 292. Court of Chancery has interfered in such appointment (b). In the exercise of the discretion given to the person intrusted with the execution of this branch of the prerogative, certain rules have been regarded as best calculated to protect the person and interests of the unfortunate lunatic. "To prevent sinister practices," says Sir William Blackstone (c), "the next heir is seldom permitted to be committee of the person of the lunatic, because it is his interest that the party should die. But it hath been said that there lies not the same objection against the next of kin, for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may be entitled to enjoy; the heir is, therefore, generally made the manager of the estate, it being clearly his interest by good management to keep it in condition, accountable, however, to the Court of Chancery, and to the non compos himself if he recover, or otherwise to his administrators." Lord Chancellor Macclesfield very much disapproved of the rule of our law, which gives the guardianship in socage to the next of kin to whom the land cannot descend. He would not allow the exclusion of the heir to the land to be founded in reason, but deemed it the offspring of barbarous times and the effect of a cruel presumption. Therefore, when he was applied to, on a like principle, for an order to remove a lunatic from the custody of Mr. Justice Dormer, who was the lunatic's uncle, and entitled to his estate as the person next in remainder, and who had, with the consent of the nominal committee of the lunatic's person, taken care of him for many years, and treated him with the greatest tenderness; his Lordship refused to make such an order (d). But notwithstanding this censure by one most deservedly of high authority, the rule of our law in respect to guardianship in socage, considered as one settling the right by nearness of blood without regard to personal qualifications, which was the point of view in which Lord Coke and those he follows extolled it, is surely very (b) Murray v. Frank, 2 Dick. 555. (c) 1 Bl. Comm. 305. (d) Dormer's case, 2 P. Wms. 262. defensible; for it gives the custody of the infant's person to those who in point of nearness of blood have equal pretensions to the trust, without the same temptation in point of interest to abuse it (e). The old rule, however, has not been adhered to for a great length of time; and therefore, Lord Chancellor Eldon, in a case where a petitioner (being brother of the half-blood of a lunatic, and entitled in remainder to his real estate, and having been appointed committee of the real estate of the lunatic,) had objected to being appointed committee of the person, under a conception that the appointment would be against the practice under the old rule, but afterwards applied to be appointed committee of the person, made an order for that purpose (f). The usual course is for the Lord Chancellor, on petition, to refer it to one of the Masters of the Court of Chancery, to inquire and certify who are the most fit and proper persons to be appointed the committees of the person and estate of the lunatic, and who are his heirs-at-law and next of kin, to whom due notice of attending the Master is directed to be given. The principle which leads the Court to call for the next of kin and the heir-at-law of lunatics, is, to receive from the persons probably entitled that assistance in the protection of the property, which persons having such expectant rights will be likely to afford, and not for the purpose of trying their title. But the report of the Master is not considered conclusive, for the parties may not choose to put themselves to the expense of trying their rights of representation, which may turn out to be worth nothing (g). After the Master has made his report, approving of the persons proposed as committees, and finding who is the heir-at-law and next of kin of the lunatic, the persons who are selected for committees must then present a petition for having the Master's report confirmed, and praying that they may be appointed committees of the person and estate of the lunatic, and that the care (e) Co. Litt. 88, note (b), by Hargrave. 590. (g) Ex parte Clarke, Jac. Rep. (f) Ex parte Cockayne, 7 Ves. 589; 19 Ves. 123. |