stock should be transferred to the Accountant-General, and the interest and dividends thereof paid to a lady during her life, for her separate use, and on her death all parties interested were to be at liberty to apply to the Court. The lady, by a power of attorney duly executed by her, dated 14th December, 1780, authorized her husband to receive the dividends then due, or which should become due on those funds. The bill further stated, that, before and on the 14th December, 1780, the lady was of unsound mind, and had ever since continued so; that the husband, by virtue of the letter of attorney, received the dividends; that he was since dead, having appointed the defendants executors of his will; that the lady had been found a lunatic by inquisition, without lucid intervals, from December, 1783, and that the defendants had been appointed committees of her person and estate. The bill prayed an account of the dividends received by the late husband under the power of attorney. Lord Chancellor Thurlow ordered the parties to proceed to a trial at law on an issue, whether the lady was a lunatic at the time she executed the power of attorney, and that the jury should indorse on the postea at what time she became so. After a second trial the jury found that she was a lunatic when she executed the power of attorney.

On the cause coming on for further directions, the Lord Chancellor ordered it to be referred to one of the Masters to take an account of the dividends and interest accrued on the sums of stock and money received by the husband or by any other person by his order or for his use, and to take an account of what sums of money were laid out and expended by the husband for the better and more comfortable support of the lunatic, his wife. And it was ordered, that the said Master should consider whether any and what allowance ought to be made to the estate of the husband in respect thereof. And that what should be so allowed be deducted out of what should be found due from the estate of the husband upon the account, before directed, of interest and dividends received by him (q).

(q) Attorney-General v. Parnther, 3 Bro. C. C. 440; S. C. 4 Bro. C. C. 409; Reg. Lib. A. 1792, fol. 696.

In a recent case it was held, that the personal representative of a lunatic, for whose separate use annuities had been provided, but which had been retained by her husband, was entitled to recover all the arrears of them.

It appeared, that, by a settlement made in the year 1771, previously to the marriage of the late Duchess of Norfolk, certain estates belonging to her were conveyed to trustees for raising annuities upon trust to apply and dispose of the same to such persons only, and for such purposes, as the late Duchess by any writing signed with her hand, notwithstanding her coverture, should appoint; and in default of such appointment for her separate use in exclusion of her husband. The estates were limited (subject to the annuities) to the Duke for life, with remainder to the issue of their marriage in strict settlement. By a subsequent deed the Duke covenanted to settle an additional rent-charge for the separate use of the Duchess. The rent-charges provided for the Duchess were not paid or set apart for her separate use; and the Duke, who had an enormous income, appeared to have maintained her at his own expense, not according to her dignity, but having regard to the situation in which she was placed by her unfortunate malady. Duke died in 1815, having received the rents of the estates upon which the annuities were charged. By an inquisition of lunacy, taken in 1816, the Duchess was found to have been a lunatic, without lucid intervals, from 1782. The Master, by his report made in the lunacy, had stated that no arrears of the annuities could be recovered out of the personal estate of the Duke, he having wholly maintained the Duchess during his life, and it not appear ing that she, when of sound mind, demanded payment of them. But on a further petition being presented by the committees of the estate of the Duchess, it was ordered that they should be at liberty to institute a suit in the Court of Chancery against the executor of the late Duke and all other proper parties for the recovery of the arrears of such pin-money (r). A bill was accordingly filed

(r) In re Duchess of Norfolk, 10 Aug. 1819.

The

by the administrator of the late Duchess against the executor of the late Duke, to recover the amount of arrears of pin-money which had been withheld from her from the time she became a lunatic to the period of her death.

The defendant contended, that he had applied not only the separate income of the Duchess, but also additional sums of money to a large amount, for supporting an establishment suitable to her rank, and that if the Duchess enjoyed lucid intervals, it ought to be presumed that, during such intervals, she consented to the application of her separate estate by her husband. The decree stated, that it had been. agreed, for the purposes of discussion, that the Duchess should be considered to have been a lunatic from 1782, but, without prejudice to the defendant's going into evidence to prove lucid intervals, if the Court should be of opinion that the rights of the parties would be affected by such proof; and the plaintiff having alleged that the money expended upon the establishment of the Duchess was much less than the amount of her separate income, and the defendant having alleged that it considerably exceeded it, and it having been agreed, for the purposes of discussion, that the fact of such deficiency or excess should not be assumed either way, but that a reference should be made to the Master to inquire into that fact, if, in the opinion of the Court, the rights of the parties would be affected by the proof of such fact either way; and it having been admitted that no direct payment had been made to her separate use according to the strict provision of the settlement-The ViceChancellor decreed that the arrears of the annuities of 7007. and 3001, from December 1782, till the death of the Duke in 1815, were due to the estate of the Duchess, and that it should be referred to the Master to compute such arrears, and to tax the plaintiff's costs, which were ordered to be paid by the defendant out of the assets in his hands to the plaintiff (s).

(s) Earl Digby v. Howard, Reg. Lib. A. 1831, fol. 289, 291.

An appeal against this decree is now pending in the House of Lords.

SECTION XIII.

Of the Conversion of the Real and Personal Estates of Lunatics, as between their Heirs and Personal

Representatives.

THE claims arising after the death of lunatics between their heirs and personal representatives, in consequence of the alteration or investment of their property by their committees, have occasioned several decisions, all of which cannot be reconciled with each other.

In cases of lunacy, the first care of the Court is the maintenance of the lunatic, and, after that, it is a rule not to vary or alter the property of the lunatic, so as to affect the right of succession to it (t).

In the orders made by persons charged with the custody of lunatics, there is one general principle, though not without some possible deviation, that the general object of the attention of the administrator is solely and entirely the interest of the lunatic himself; and with regard to the management of the estate solely and entirely the interest of the owner, without looking to the interest of those who, upon his death, may have eventual rights of succession; and nothing could be more dangerous or mischievous than for him to consider how it would affect the successors. There will always be among them an emulation of each other, and their speculations, if the administrator were to engage in them, would mislead his attention, and confine his observation as to the interest of the only person he is bound to

81.

(t) Ex parte Annandale, 1 Ambl. See ante, pp. 184, 185, 188. The law of Scotland, on this point, seems conformable to that of England, for the tutor of an idiot cannot by his mode of investing the funds, or by leading an adjudication, alter the rule of succession. Moveable property invested by him in heritage,

continues to be regarded as personal quoad succession, and vice versa. Ross, 31 Jan. 1793; Mor. p. 5545; Graham and Others v. Hopetown, 6 March, 1798, Mor. 5599; Morton v. Young, 11 Feb. 1813; Fac. Coll. See 1 Stair's Inst. by Brodie, p. 55, n. (g).

take care of. The next of kin would contend for a short allowance. The heir-at-law would have no interest to contend for a small allowance out of the rents and profits, but might have an emulation against the next of kin; and, therefore, where the next of kin would contend for a narrow allowance, the heir would insist on a large one. Therefore, the Court has always shut out of view all consideration of eventual interests, and considers only the immediate interest of the person under their care (u). But, whatever tends towards ordinary improvement, it is strictly the duty of the administrator to do, considering only the immediate interest of the proprietor of the estate; but great care must be taken that nothing extraordinary is to be attempted; as, estates to be bought, or interests to be disposed of. Alteration of property is as far as possible to be avoided consistently with the idea of preserving the interest of the proprietor (v).

The committee is not authorized to purchase real estate with savings, and so alter the nature of the property; for, land so purchased will be considered as personalty. Thus, where the committee of a lunatic, out of the rents and profits of the real estate, purchased lands, which were conveyed to the lunatic, on whose death a question arose between the heir and administrator, who was to have the benefit of the purchase the Court decreed an account of the personal estate, and the lands purchased to be sold, and the money to be divided as personal estate amongst the next of kin (w).

Though it be very true, that the Court of Chancery will not order the personal estate of a lunatic to be turned into real estate, yet there have been applications to that Court to lay

(u) Oxenden v. Lord Compton, 2 tate." But it does not appear that Ves. jun. 72. the decree ordered the lands to be sold; the plaintiff was to have his

(v) Id. 73. (w) Awdley v. Awdley, 2 Vern. share paid so far as there was per192; S. C. 2 Freem. 114.

sonal estate to pay, and the purchased lands were to stand charged with the remainder. Reg. Lib. 1690, A. fol. 69.

The decree declared, "that it was not in the power of any committee to alter the nature of a lunatic's es