pressed, or the party is incapable of expressing any, the Court, if called upon to exercise a discretion, will probably consider what is most advantageous to him (n).

It seems to be the principle of the Court, to do nothing wantonly, or unnecessarily, to alter the lunatic's property, but, on the contrary to take care, for his sake, that, if he recover, he shall find his estate as nearly as possible in the same condition as he left it, applying the property in the mean time, in such manner as the Court thinks it would have been wise and prudent in the lunatic himself to apply it in case he had been capable (o). In conformity with the above principles, where the personal estate of a lunatic has by the order of the Court been applied for the benefit of, or to discharge incumbrances on, his real estate, directions have been usually given to preserve the money so applied as personalty. Thus, where a lunatic held a lease for lives subject to a mortgage made by his ancestor, and the Master had reported that it would be for the benefit of the lunatic, that the committee should pay off the mortgage out of the personal estate-Lord Chancellor Hardwicke ordered that the committee should pay off the mortgage out of the estate of the lunatic, and that the mortgagee should assign over the mortgage in trust for the lunatic, his executors, administrators, and assigns, and that such trustee should declare the trust accordingly (p).

The Dowager Duchess of Norfolk, before her lunacy, by virtue of a power contained in her marriage settlement, charged the estates comprised in it, by way of mortgage, with a sum of 5000l., and created a term of years for securing it: the money was paid to a trustee, and directed to be held for her separate use. In consequence of the death of her husband without issue, the estates, which belonged to the Duchess before her marriage, stood limited by the settlement to herself for life, with the usual limitation to trus

(n) Forbes v. Moffatt, 18 Ves. 390. See Price v. Gibson, 2 Eden, 115; Donisthorpe v. Potter, Id. 162; S. C. Ambl. 600; Wyndham v. Earl of Egremont, Id. 753; 2 Sim. & Stu.

345, 369; 1 Sim. 298.

(0) Ex parte Whitbread, In re Hinde, 2 Mer. 102.

(p) In re Degge, March, 1743, stated in 1 Beatty, 270.

tees to preserve contingent remainders, remainder as she should appoint, remainder to the heirs of her body, remainder to her right heirs.

The Master, upon a reference to him, had reported that it would be proper that the charge of 5000l., as it bore a higher rate of interest than could be made of the surplus rents of the lunatic's estate, should be paid off, and the term securing it assigned to a trustee, to be disposed of as the Lord Chancellor, during the lunacy, should direct, and subject thereto in trust for the lunatic and her heirs, and to attend the inheritance. The presumptive heirs-at-law of the Duchess presented a petition to confirm this report. Another petition was presented by the persons who, in the event of her death, would be her next of kin, praying that the charge might be kept on foot as personal estate, without prejudice to the question by whom, or out of what fund the same should be ultimately paid-Lord Chancellor Eldon said, this question cannot be determined during the life of the lunatic, it may never arise. The term must be assigned to a trustee, in trust to attend the inheritance, or for the lunatic, her executors, administrators, and assigns, as shall hereafter be determined in the matter of the lunacy, or in any suit to be instituted for that purpose (q). On the death of the Duchess, it was agreed that the petitions should be brought on again by consent, for the purpose of taking the opinion of the Court, on the question whether the mortgage was to be paid off for the benefit of the heirs. And it seems to have been decided, that, as the charge was not a personal debt of the Duchess, that the heir-at-law was not entitled to be relieved from it; and even, admitting that the sum borrowed, was a debt as against the separate estate of the Duchess (she having entered into a covenant for payment (r), and that she had died possessed of any separate estate, yet it would depend upon whether the personal security was meant to be the primary security, or only collateral (s).

(q) Ex parte Earl Digby, In re Duchess of Norfolk, 1 Jac. & Walk. 640.

365; Stuart v. Viscount Kirkwall, 3 Madd. 387.

(8) Ex parte Digby, In re Duchess (r) See Bullpin v. Clarke, 17 Ves. of Norfolk, Jac. Rep. 235.

Where part of the lunatic's personal estate was directed to be applied in payment of a mortgage on his real estate→→ Lord Eldon ordered, that the term should be assigned to a trustee, without prejudice to the claims of the real and personal representatives; but said, that there was no doubt that it would be deemed personalty on the lunatic's death (t).

In another case, an order was made for sale of sufficient stock standing in the Accountant-General's name in the matter of a lunacy for discharging a mortgage on the lunatic's estate, and for payment of the sum due to the mortgagees upon their executing a reconveyance, such payment to be without prejudice to the persons by whom, or the estates out of which, the same should be ultimately borne or paid (u).

Where a real estate had descended on a lunatic, subject to a mortgage which was exonerated by application of the lunatic's personalty, in no way derived from or connected with the descended estate, it was held, that the mortgage money was a charge on the real estate, for the benefit of the next of kin. An estate subject to a mortgage, having descended to a lunatic, and a bill of foreclosure having been filed by the mortgagee, an order was made in the matter of the lunacy, on the petition of the committee, that it should be referred to the Master, to inquire and report, whether it would be for the interest of the lunatic that the mortgage debt, with interest and costs, should be paid, taking an assignment of the same, so as to prevent the property of the lunatic being altered; and if so, to report what was due thereon for principal, interest, and costs. The Master afterwards reported, that it would be for the interest of the lunatic that the mortgage should be paid off, which, with interest and costs, was afterwards done by the committee, out of a fund in Court belonging to the lunatic, and the mortgage premises were conveyed to the committee, her heirs, executors, and assigns. After the death of the lunatic, a bill was filed by the next of kin and administrator of the lunatic, against the defendants, her heirs-at-law, for an account of the personal

(t) Ex parte Hinde, June, 1822; Ambl. Rep. 706, note by Blunt.

(u) In re The Earl of Lisburne, 4 November, 1815.

estate, and that the mortgage might be declared to be part thereof, and be raised and distributed accordingly. Lord Manners decreed, that the assignment of the mortgage, made to the committee of the lunatic, was in trust for her co-heirs, the defendants, and that the bill should be dismissed as to the mortgage and assignment. But, on a petition of rehearing, Lord Chancellor Hart reversed that decree, so far as it dismissed the bill of the next of kin, and declared, that they were entitled to have so much of the lunatic's personal estate, as was applied in discharge of the mortgage, considered as a lien on the real estate, and raised accordingly. An account was directed of the amount of the principal sum paid in satisfaction of the mortgage, with interest from the death of the lunatic (x).

So also where a lunatic being possessed of a freehold lease for lives, and one of the lives having dropped, an order to renew and pay the fine and charges out of the personal estate was made; directions were also given, that if the lunatic should die during his lunacy, the remaining interest in the new lease, after the determination of the lives then subsisting, should be considered personal estate for the benefit of the next of kin. And a similar order was afterwards made upon the dropping of another life (y).

Where a lunatic was entitled to the equity of redemption of an estate subject to two mortgages for terms of years, which were paid off in his lifetime out of the savings of his estate, and the terms were, by the order of the Lord Chancellor, assigned to attend the inheritance: on the petition of the next of kin, after the death of the lunatic, the Court declared the trustee to whom the terms had been assigned, a trustee for the next of kin of the lunatic, to the extent of the mortgage money and interest, and directed an account accordingly; but, on a petition of rehearing by the heirs-at-law of the lunatic, that order was reversed (2). But the ultimate decision in this case seems contradictory

(x) Weld v. Tew, 1 Beatty, 266. (y) Ex parte Degge, 4 Bro. C. C. 235, note (a).

(x) Ex parte Grimstone, Ambl. 706; and see 4 Bro. C. C. 234.

to all former decisions; and its authority has been lately denied by Lord Chancellor Hart (a).

It is a well established principle in Courts of equity, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given: whether by will, by way of contract (b), marriage articles (c), settlement, or otherwise, and whether money is actually deposited, or only covenanted to be paid, and whether the land is actually conveyed, or only agreed to be conveyed (d). The quality of real or personal estate thus impressed by the instrument, will continue unless the possession was united with the absolute title under the uses of the instrument in a proprietor competent to elect, under whom both representatives claim; or, if standing out in a third person, the cestui que trust has by declaration or some act indicated an intention to keep it as it is, for which purpose a very slight act is sufficient (e). It is obvious that persons under disabilities are incapable of making any election; and if the interest of the lunatic should not require an election, the Court will not make any, merely to favour that class of representatives who would be benefited by it; thus, where an estate devolved upon a lunatic, under the will of a testator who intended it to pass as money only, under a direction to sell; although a party competent to act for himself might have elected to take the property as land, yet

(a) See Weldv. Tew, 1 Beatty, 276. (b) Stead v. Newdigate and Others,

2 Mer. 521.

388; 8 Ves. 235; Thornton v. Hawley, 10 Ves. 129; Ware v. Polhill, 11 Ves. 257; Biddulph v. Bid

(c) Ripley v. Waterworth, 7 Ves. dulph, 12 Ves. 161; Kirkman v.

435.

(d) See Fletcher v. Ashburner, 1 Bro. C. C. 499. See Smith v. Claxton and Others, 4 Madd. 484.

(e) Pulteney v. Lord Darlington, 1 Br. C. C. 223; 7 Br. P. C. 530; Fletcher v. Ashburner, 1 Br. C. C. 497; Hickman v. Bacon, 4 Br. C. C. 333; Wheldale v. Partridge, 5 Ves.

Miles, 13 Ves. 338; Triquet v. Thornton, Id. 345; Shard v. Shard, 14 Ves. 348; Walter v. Maunde, 19 Ves. 424; Stead v. Newdigate, 2 Mer. 521; Langley v. Sneyd, 1 Sim. & Stu. 45; Attorney-General v. Halford, 1 Price, 426; Amphlett v. Parke, 1 Sim. 275; Burton v. Hodsoll, 2 Sim. 24.