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out part of his personal estate in repairs, or even upon improvements of his real estate; and the Court has allowed it, if the next of kin at that time, who, if he were dead, would be entitled to his personal estate, do not shew any reason against it; and such an order of the Court has been even held binding upon other persons who did not consent to it at the time it was made, but happened to be the next of kin of the lunatic at his death (x).

But, whenever personal estate is laid out in improvements on the real estate, it is necessary that the committee should first obtain an order of the Court (y).

Where a committee or guardian is entrusted with the care of an estate, and has abused that trust with a view of changing the quality of the estate, to serve his own interest, there arises an equity to undo the act tortious in that way; there is no rule of equity upon a less ground than that. Perhaps the Court, where guardians or committees have, without order, taken upon themselves to change the property, will, particularly where there is a cause in Court, consider it as a matter of fraudulent management, for that is the ground upon which the Court must proceed (≈). Thus, where the committees of the estate of a lunatic, who were entitled to the real property upon his death, purchased timber for repairs, notwithstanding there was sufficient timber on the estate proper for the purpose. Lord Chancellor Hardwicke observed, that committees of the real estate of a lunatic might exercise the same power over it, in regard to cutting timber for repairs as any discreet owner might do, but in that instance, they appeared to have acted merely with a view to their own interest; and he therefore ordered them to make good the amount to the personal estate (a). It is clearly established, that where a person is acting bond fide for a lunatic or an infant, without any intention to prefer either representative, there is no equity between them; there is no rule in equity to undo the act, unless there has been a

(x) Sergeson v. Sealey, 2 Atk. 413. (y) Ex parte Marton, 11 Ves. 397; Ex parte Hilbert, Id. Anon. 10 Ves. 104. See ante, pp. 201, 202.

(z) Ex parte Bromfield, 1 Ves. jun. 462; S. C. 3 Bro. C. C. 510.

(a) Ex parte Ludlow, 2 Atk. 407; ante, p. 202.

breach of trust in the committee or guardian; therefore, where a stranger had cut down timber tortiously, it was refused to be restored to the estate, because there was no abuse of confidence (b).

There is no equity for the heir, as against the personal representatives, to have the surplus money arising from the sale of timber felled by the order of the Court, restored after the death of the lunatic. Thus, where timber, growing on the estate of a lunatic, was cut under an order of the Court, founded on the Master's report, that it would be for the benefit of the lunatic, and was sold, and the produce was paid into the Bank on account of the lunatic, but there was no direction as to the future application. After the death of the lunatic, the heir-at-law petitioned for the money, and was resisted by the next of kin. Lord Chancellor Thurlow said, that the Court ought to be very reserved in changing one species of property into another, and to do it only on pressing occasions; and when it is done, the only ground upon which it can be given out to the one party or the other, must be an equity so distinct, as to govern it upon the proper rules of law. The jurisdiction in lunacy not being the forum that ought to decide in nice cases, on account of the difficulty of getting the decision reversed, his Lordship said, that the question should come before the Court by bill, drawn like a case, and the answer in the same way, merely stating the sum raised by timber, the order under which it was cut, and that an equity arose for the heir to have the produce paid to him (c).

A bill having been accordingly filed by the heir-at-law of the lunatic, against his next of kin, it was decided, that the heir had no claim to the surplus produce above the purposes for which the timber was felled, there was no equity between the real and personal representatives, since both claimed as volunteers; and the legal right ought therefore to decide to whom the property belonged (d).

(b) 2 Eden, 154, note; 1 Ves. jun. Dick. 762.

462.

(c) Ex parte Bromfield, 1 Ves. jun. 453; S. C. 3 Bro. C. C. 510; 2

(d) Oxenden v. Lord Compton, 2 Ves. jun. 69; S. C. 4 Br. C. C. 231,

There is no equity between the representatives even in a case where what was done under the order turned out to be clearly wrong. Thus, where so much of an estate was to be sold as would pay debts, and the bulk was sold, and there was a surplus, which, if the order had been strictly pursued, would never have been money, but real estate; it happened that by the order not being followed distinctly, or guarded sufficiently in the execution, that which would have been land was in fact money. Lord Camden thought, nothing arose upon that, but that the parties ought to take their respective rights as they find them (e).

Where the produce of timber cut from the lunatic's estate had been applied in redeeming the land tax, it was decided, that there was no equity on the part of the next of kin to be repaid the money. Upon the petition of the heirat-law, and one of the next of kin of a lunatic, it was ordered, that the petitioner should be at liberty to contract for the redemption of the land tax on the lunatic's estate: the land tax was redeemed accordingly; the consideration being stock transferred out of the fund in Court, arising principally from the sale of timber which had been cut under a former order, and constituting part of the lunatic's personal estate. A petition which was presented by some of the next of kin of the lunatic after his death, stated, that his personal estate had been diminished by the sum transferred to the commissioners; and, as in the orders, authorizing such transfers, no direction was contained, that the land tax so redeemed should merge in the estates on which it was charged, the land tax, having been purchased out of the personal estate, ought to be considered as such, and divisible among the next of kin; and it prayed, that the land tax so redeemed might be declared a charge upon the real estate, for the benefit of the petitioners and the other next of kin. Lord Chancellor Eldon said, the opinion he expressed must be subject to a bill, if the party thought proper to file one, as he had no direct jurisdiction; and he dismissed the petition, repeating his offer of a bill, which, being declined, his Lordship added, for the satisfaction of the parties, that (e) Flanagan v. Flanagan, cited 1 Bro. C. C. 500, 512; and see 2 Ves. jun. 77.

there could be no chance upon a bill of an alteration in his opinion (f). But Lord Chancellor Hart said, that he conceived that Lord Eldon would have come to a different result if the money to be paid for the land tax had been a fund of general personalty; for it appeared, that soon after the passing the land tax act, a standing order was made in matters of lunacy, whereby it was directed-" That, in all cases of redeeming the land tax, the order shall be accompanied by a declaration of trust, that the land tax redeemed shall be considered as personal estate of the lunatic, and transmissible as such (g)."

Where a committee had entered into contracts for the redemption of land tax charged on the lunatic's estates, which the Court ordered to be carried into execution, and the Accountant-General to make the necessary transfer of part of the stock belonging to the lunatic for the purpose; and by such order it was declared, that the land tax redeemed should be considered personal estate of the lunatic, to the amount of the value of the stock directed to be transferred on the day of transfer; and that the same should be transmissible as such, and not of the nature of real estate; and the committee had executed a deed, by which it was declared, that his name was used in such contracts in trust only, for the lunatic; and that the committee should stand possessed of the land tax in trust only, for the lunatic, his executors, administrators, and assigns, as part of the personal estate of the lunatic, for the amount of the value of the stock transferred. After the death of the lunatic, the declaration of trust was ordered to be delivered to his administrators, and the committee of his estate was ordered to deliver to his next of kin and administrators the several contracts and certificates for redemption of land tax charged on the lunatic's estates, and to execute to their nominees a proper assignment of the benefit and advantage of such contracts, in respect of the

(f) Ex parte Phillips, 19 Ves. 811; and see Ware v. Polhill, 11 Ves. 257.

(g) 1 Beatty, 275. On inquiry at the Lunatic Office, it does not ap

pear that the standing order alluded to was made; although particular orders to the same effect have been made. See ante, pp. 187, 188.

consideration for redemption, and of the yearly sum equal to the amount of the land tax redeemed, and of all arrears thereof, from the lunatic's death (h).

In one case, after the death of a lunatic, a reference was directed to the Master to inquire what proportion of the fund in Court had arisen from the sale of the freehold and copyhold estates of the lunatic, and what proportion thereof constituted a part of his personal estate, and to distinguish what part thereof had arisen from the rents of the estates, and from the timber felled thereon, and what had arisen from the sale of the leasehold estate of the lunatic (i)-the Master reported, that the whole was personalty; whereupon it was ordered to be transferred to the administratrix of the lunatic (k).

Where a lunatic, being seised ex parte paterná of estate A., and ex parte materná of estate B., the latter being subject to a mortgage; and the produce of timber cut upon A. had been applied in discharge of the mortgage upon B., it was held, upon a question between the heirs, that A. was not to be recouped (1). And it was held in another case, that a charge on a lunatic's estate, falling in to him as representative of his sister, should sink for the heir-at-law (m).

It is very clear, that a person, becoming entitled to an estate subject to a charge for his own benefit, may, if he chooses, at once take the estate, and keep up the charge. Upon this subject, a Court of Equity is not guided by the rules of law. It will sometimes hold a charge extinguished, where it would subsist at law; and sometimes preserve it, where at law it would be merged. The question in ordinary cases is upon the intention, actual or presumed, of the person in whom the interests are united. In most instances it is, with reference to the party himself, of no sort of use to have a charge on his own estate; and, where that is the case, it will be held to sink, unless something has been done by him to keep it on foot. Where no intention is ex

(h) In re Cotton, 20 June, 1827.
(i) In re Hucks, 24 Jan. 1815.
(k) Id. 25 July, 1815.

(1) Per Lord Eldon in Ex parte

Phillips, 19 Ves. 123.

(m) Compton v. Lord Oxenden, 4 Br. C. C. 397.

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