tioner, the maternal uncle, from time to time, to be applied in the maintenance of his niece-Lord Chancellor Loughborough said, it was in effect a petition for a commission of lunacy, and he was afraid of establishing the precedent; but, on being informed that by great parsimony a commission cost 100%., he said, he was doing an irregular thing, but might as well do it completely; and, therefore, upon producing affidavits of the state of the petitioner's mind, and the amount of her fortune, he would, without a reference, order payment of the dividends of the two next quarters, or a year; and then they must apply again by short petition, as the Court must know her state of mind, and the amount of her fortune, from time to time. The order was drawn up for payment of the dividends of the two next quarters (a). In a case where a commission of lunacy had issued against a lady, under which the jury found a verdict that she was not a lunatic, and was sufficient for the government of herself and her property; on a petition being presented against this verdict, from which the nature of the case appeared to be imbecility of mind in a great degree proceeding from epilepsy-Lord Eldon observed, that every person about this lady was satisfied that some care should be thrown round her, and that it was fit to put a control upon those who might be proper persons to have the care of her property. His Lordship would not then subject her to another commission; but directed two physicians, who had not been consulted, to confer with those who had been consulted on a former occasion, to read the evidence, and afterwards to visit her for the purpose of determining whether her state of mind was competent to the management of her affairs; as it did not seem a case of insanity (b). An order was afterwards made for payment of the dividends of the Bank annuities, from time to time as they became due, to the lady for her separate use, during her life, or until further order of the Court; and the lady or any other person or persons authorized by her, either by deed or will, executed by her in the presence of and attested by three (a) Eyre v. Wake, 4 Ves. 795. (b) Ridgway v. Darwin, 8 Ves. 65. or more credible witnesses, were to be at liberty to apply to the Lord Chancellor concerning the capital of the Bank annuities, or any part thereof, as they should be advised, to the intent that such order might be made respecting the same as should be just and for the benefit of the lady, or any person or persons who should be entitled to the same Bank annuities under her will so executed as aforesaid (c). Where a defendant of unsound mind was entitled, under the decree of the Court of Chancery, to an annuity of 1257. it was ordered that the same should be carried over to the credit of the cause to his account, subject to further order, with liberty for him, or any one duly authorized on his behalf, to apply concerning the same as he should be advised (d). It seems that the separate estate of a married woman, in a state of incapacity, will not be ordered to be paid to her husband, if he is possessed of sufficient means for providing for her comfortable maintenance. A testator by will directed the share of his daughter, a married lady, in his residuary and real estates, to be held by trustees upon trust, to lay out the same in their own names, and to pay the dividends for the sole and separate use of his daughter during her life, independently of her husband. Various payments had been made into the name of the Accountant-General, on account of the lady's share in the property. At the date of the will, and for many years preceding, the lady had been, and still continued, of unsound mind, though no commission of lunacy had been taken out against her. She resided with her brother in Scotland, but was maintained by her husband; and their only child, a son, was at the University of Cambridge. The husband presented a petition, stating the circumstances that he had not any fortune with his wife on his marriage; and that no settlement had been since made on her by him; and praying a reference to the Mas (c) Ridgway v. Darwin and Others, Lord Harcourt. Reg. Book, B. 1802, fol. 576. See 2 Ves. sen. 409, where it is said, that a similar order was made by (d) Gallwey and Others v. Christie and Others, Reg. Lib. A. 1830, fol. 1057. ter, whether it would be for the benefit of the lady, regard being had to the circumstances of the petitioner, and the state of his family, that the whole or any part of the income arising from her share of the testator's estate, should be paid to the petitioner, or otherwise applied for her maintenance. Lord Chancellor Eldon observed, this is a case of great importance and delicacy. Upon the facts stated by this petition, the testator must be supposed to have been aware of the situation of this lady; and the terms of the will are in direct opposition to this application; and said, that he had searched, and could find no authority in the least governing him in a case of this nature. Without prejudice to the question, what might be done thereafter, an inquiry was directed how the lady had been maintained, and at whose expense, since the testator's death; whether her husband was of ability to maintain her, due regard being had to her comfort; and whether any of the separate maintenance should be applied for her use, to whom, and upon what securities. There is a distinction between the application of a stranger, and of the husband himself, able to maintain her, and not maintaining her as he ought, in which case his petition would be dismissed (e). Where an application was made for an order to dispense with the attendance of barristers, there being none within twenty miles distance, on a commission of lunacy proposed to be executed in the country, the only object of which was, that proof might be made before the Master, under the usual decree upon a creditor's bill upon a bond for 300%., which, with 80%. due for interest, was the only property of the party, a woman of too imbecile a mind to be capable of making proof herself-Lord Chancellor Eldon said, he might save the expense of a commission, which in such a case would be ruinous, by permitting the Master to receive any evidence that would be satisfactory to him, by analogy to the usual practice of taking the answer of a person of weak mind by guardian; and made an order in the cause, that the Master should be at liberty to receive any proof, ie v. Barry, 2 Ves. & Bea. 36. See ante, pp. 155, 156. that should appear to him satisfactory, although no proof should be made by the party herself, or by any committee (ƒ). Applications have occasionally been made to the Lord Chancellor, for the purpose of obtaining his order for directing the property belonging to lunatics, (not so found by inquisition), in the hands of third persons, to be applied for their benefit, where such lunatics have not been subject to the jurisdiction of the Court as parties to a suit, but it seems that the Chancellor has no jurisdiction to interfere in such cases (g). In a case where it appeared by the petition, that a person of unsound mind, and unable to manage her affairs, but against whom no commission of lunacy had issued, was entitled to a legacy of 2001. and an annuityof 50%., and that her next of kin were incompetent, from their situation in life and circumstances, to support her; that the sum necessary for her support was 40l. per annum; and that the expenses of a commission of lunacy would so reduce her estate as not to leave sufcient for her comfortable maintenance-The petition pray (f) Herbert v. Matthews, 19 Ves. 611. See ante, pp. 442, 443. (g) See ante, p. 378, n. (p). It seems very desirable that some method should be provided in such cases, as are mentioned in the subsequent part of this section, for enabling trustees and others to apply or invest the property belonging to persons who are decidedly insane, in some way for their benefit, without putting their estates to the heavy expense incurred by a commission of lunacy. It deserves consideration, whether it would be proper that power should be given to the Lord Chancellor, upon a petition being presented, and the incapacity of the party being established by the most satisfactory evidence, to direct by whom, and in what manner, the property belonging to such lunatics in the hands of other persons should be applied for the benefit of the former, requiring the person to whom the trust was confided to give security, and making him accountable to the Court of Chancery, on a summary application by petition. As little discretionary power as possible ought to be given over the liberty and pro perty of others; but it is apprehended, that the abuse of the power proposed to be given in this case, might be prevented by proper legislative provisions, and by due vigilance and caution on the part of those to whom its exercise was entrusted, and by giving the party alleged to be a lunatic notice of the application for the order, and a right of shewing cause or appealing against any order proposed to be made, or made. ed a reference to one of the Masters, to inquire into her state of mind, and whether she was of capacity to take care of herself and of her affairs, and the state and amount of her fortune, and that the care and custody of her person and estate might be granted to the petitioner; and that the arrears of the annuity, and the growing payments thereof, might be applied towards her maintenance-Lord Chancellor Lyndhurst refused to make the order prayed, and a commission of lunacy afterwards issued (h). Petitions of a similar nature to the last have been presented to Lord Chancellor Brougham, sitting in lunacy. In one case, it appeared by the petition of the acting trustees and executors under two wills, that two sisters, who were considered incurable lunatics, and under confinement in a lunatic asylum, were entitled, for life, to the interest of the sum of 17801. Reduced 3 per cent. Annuities, standing in the names of trustees, and to two annuities of 40l. each, directed to be paid by the trustees under a will; and that the whole income of the two lunatics amounted to the annual sum of 1337. 8s. which was barely sufficient to support them; and that there was no surplus to pay the expenses of issuing a commission of lunacy; and that the trustees under the wills were anxious to continue to pay the said annuities and dividends to one of the petitioners, under the sanction of the Lord Chancellor. The petitioners prayed, that it might be referred to one of the Masters in Chancery, to inquire and certify the state of mind of the lunatics, and of what their fortunes consisted; and that, if the Master should find, that they were of unsound mind and incurable, and that their fortunes only consisted of the said income of 1337. 8s., then that the trustees under the wills might be directed to pay such income to one of the petitioners, to be by him applied for the maintenance of the said lunatics. But the Lord Chancellor refused to make any order on such petition (i). In another case, it appeared by the petition of the sister of another lunatic, that, for nearly two years, the latter had (h) In re Crompton, 7 June, 1828. |