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ed to the formal appointment of a committee, yet the Court refused to grant letters of administration with the will annexed to the daughter and residuary legatee (during the lunacy of the executor), without the sureties in the bond justifying according to the ordinary rule of the Court (x). Where a person died intestate, leaving a widow, a lunatic, and two grandchildren, his next of kin, the Court decreed administration to the two grandchildren jointly, upon their exhibiting an inventory, and the sureties justifying (y).

The Ecclesiastical Court will not, when a competent party is opposing a will, stay the admission of the executor's allegation propounding such will until the appointment of a committee of one of the next of kin, who was a lunatic, be confirmed, especially where such committee was already a party to the suit as curator of the other next of kin (≈). Where administration has been granted on account of the mental incapacity of a party, it may be revoked on his subsequent recovery (a). Administration of the effects of a wife who was proved to have been insane at the time of her marriage, was refused to the husband on the ground that the marriage had been illegally contracted (b).

By the law of Scotland, the power of disposition by will is confined to moveable subjects, and does not extend to immoveable and heritable rights (c); but such power cannot be exercised by idiots, nor by furious persons during their furiosity (d).

(x) In bonis Hardstone, 1 Hagg. apart from, or combined with, cirEccl. Rep. 487. cumstances of undue influence, or (y) In bonis Williams, 3 Hagg. fraud and circumvention, may be Eccl. Rep. 217. collected from the cases of Towart (z) Tyrrell v. Jenner, 2 Hagg. v. Sellars, 5 Dow, P. C. 231-247; Eccl. Rep. 72. White v. Ballantyne, 1 Shaw, 272; (a) Com. Dig. Administration, (B. Watson v. Noble's Trustees, 4 Shaw & Dunlop, 200; M'Diarmid v. M'

8).

(b) Browning v. Reane, 2 Phill. Diarmid, Id. 583; S. C. 3 Bligh, N. Ser. 374. See Ersk. Inst. B. 4,

69. See post, Chap. xi.

(c) Stair's Inst. B. 3. tit. 8, s. 29, tit. 1, s. 27; and Tulloch v. VisErsk. Inst. by Ivory, 874.

(d) Stair's Inst. B. 3, tit. 8, s. 37. As to what constitutes a sound dis

posing mind, whether considered

count Arbuthnot, 26 Jan. 1759; 1 Lord Kaimes' Princ. of Eq. 106108, 3rd ed.

CHAPTER VIII.

OF THE ALIENATION OF THE ESTATES OF LUNATICS BY THE DIRECTION OF THE LORD CHANCELLOR, OR OTHER PERSONS INTRUSTED BY the King's SIGN MANUAL WITH THE CARE AND COMMITMENT OF THE CUSTODY OF THE PERSONS AND ESTATES OF LUNATICS.

SECTION I.

Of Leases of the Estates of Lunatics.

As the committee of the estate of a lunatic has no interest in his estate, but is considered as a mere bailiff (a), such committee cannot, of his own authority, grant leases of the lunatic's estate (b). And it seems to have been formerly considered, that such a lease, made even by the order of the Court of Chancery, was not valid at law; because the King could not grant it (c). Lord Chancellor Eldon held that he could make a lease of the lunatic's estate only during the lunacy; and that a tenant, trusting to the order of the Court, and taking a lease, might be ejected by the lunatic if he recover

(a) Ante, p. 180.

(b) Foster v. Marchant, 1 Vern. 262; Knipe v. Palmer, 2 Wils. 130. (c) Knipe v. Palmer, 2 Wils. 130; and see preamble of the act of 11 Geo. 3, c. 20. And it seems that, by the law of Scotland, the tutors of

idiots &c., cannot make a lease to endure beyond the term of their administration. Craig, Lib. 2, dieg. 10, sect. 1;

Reay v. Anderson and Others, 5 February, 1800; Mor. Dict. of Decisions, pp. 16, 385;. Colt v. Colt, Id. 16387.

ed (d). Before the statutes for enabling committees, by the direction of the Lord Chancellor, to grant leases of the estates of lunatics, orders were made for granting such leases if the lunatic should so long live, and continue a lunatic (e).

It has been before stated, that the Lord Chancellor had, formerly, no power to authorize the committee of a lunatic tenant for life, with power of leasing, to execute such power (ƒ). But, by statute 43 Geo. 3, c. 75, s. 3, after reciting that many persons found lunatic or of unsound mind might be seised and possessed of freehold and copyhold lands, tenements, and hereditaments, either for the term of their natural lives, or for some other estate, with power of granting leases and taking fines, reserving small rents on such leases for one, two, or three lives, in possession or reversion, or for some number of years determinable upon lives, or for terms of years absolutely-it was enacted, that, in every such case, every power of leasing such lands, tenements, and hereditaments, which should be vested in such person so found lunatic, or of unsound mind, having a limited estate only, should and might be executed by the committee or committees of the estate of such person, under the direction and order of the Lord Chancellor, &c., duly intrusted, by virtue of the King's sign manual, with the care and commitment of the custody and estates of such persons; and such leases so to be executed by the said committees, under and by virtue of such order, should be as good and effectual in law, as if the same had been executed by the person so found lunatic or of unsound mind, in his or her sound mind.

By the fourth section of the last-mentioned statute, after reciting that persons found lunatic or of unsound mind might be seised or possessed of freehold or copyhold estates in fee or in tail and an absolute interest in leasehold estates, and that it might be for the benefit of such persons that leases or under-leases should be made of such estates

(d) Ex parte Dikes, 8 Ves. 79.
(e) In re Davies, 30 March, 1779;

In re Stephenson, 4 Aug. 1779.
(ƒ) Ante, p. 189.

for terms of years, and especially to encourage the erection of buildings thereon, or otherwise improving the same; enacted, that it should be lawful for the Lord Chancellor &c., of the United Kingdom and of Ireland, respectively, intrusted as aforesaid, to order and direct a committee or committees of the estate of such lunatic to make such leases of the freehold, copyhold, or leasehold estates of such persons respectively, according to his or her interest therein respectively, and to the nature of the tenures of such estates respectively, for such term or terms of years, and subject to such rents and covenants as the Lord Chancellor, &c., of the United Kingdom and of Ireland, respectively, intrusted as aforesaid, should direct; and that all and every such lease or leases, made by such committee or committees under and by virtue of the said orders, as such Lord Chancellor, &c., should make thereupon, should be as good and valid in the law as if the same had been executed by the persons so found lunatic or of unsound mind respectively in his or her sound mind.

The statute 11 Geo. 4 & 1 Wm. 4, c. 65, has repealed the 43 Geo. 3, c. 75; and by the 23rd section of the former act, it is enacted, "that, where any person, being lunatic, is or shall be seised or possessed of any land, either for life or for some other estate, with power of granting leases and taking fines, reserving small rents on such leases, for one, two, or three lives in possession or reversion, or for some number of years determinable upon lives, or for any term of years absolutely, such power of leasing which is or shall be vested in such person being lunatic, and having a limited estate only, shall and may be executed by the committee of the estate of such person, under the direction and order of the Lord Chancellor, intrusted as aforesaid." And it is further enacted (g), "that, where any person, being lunatic, is or shall be seised or possessed of or entitled to any land in fee or in tail, or to any leasehold land for an absolute interest, and it shall appear to the Lord Chancellor, intrusted as aforesaid, to be for

(g) 11 Geo. 4 & 1 Will. 4, c. 65, s. 24.

the benefit of such person that a lease or under-lease should be made of such estates for terms of years, for encouraging the erection of buildings thereon, or for repairing buildings actually being thereon, or otherwise improving the same, or for farming or other purposes, it shall be lawful for the Lord Chancellor, intrusted as aforesaid, to order and direct the committee of the estate of such lunatic to make such lease of the land of such persons respectively, or any part thereof, according to his or her interest therein respectively, and to the nature of the tenure of such estates respectively, for such term or terms of years, and subject to such rents and covenants as the Lord Chancellor, intrusted as aforesaid, shall direct."

When the committees of the estate of a lunatic have received proposals for leases of his estates, and are desirous of granting them, they must present a petition (notice of which must be given to the heir-at-law and next of kin of the lunatic,) to the Lord Chancellor, who, if he thinks proper, will direct a reference to the Master to inquire and certify whether it will be for the benefit of the lunatic's estate, that the leases in question should be granted of the property mentioned in the petition, and upon what terms and conditions, having regard to the lunatic's interest in the estates. The Master to whom the matter is referred, after having been furnished with affidavits of the nature and value of the property, made by persons having a knowledge of the subject, and with such other evidence as he may require, makes his report, and, if he finds that it will be for the benefit of the lunatic and his estate, that the leases should be granted, a petition must be presented by the committee of the estate, praying that the Master's report may be confirmed, and that he may settle and approve of the leases to be granted, and that the committee may be at liberty to grant the lease mentioned in the report; the Court, unless any sufficient objection should be made, will then make an order that the Master's report be confirmed, and that the committee of the estate of the lunatic be at liberty, in the name, and on behalf of the lunatic, to grant the par

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