minutes might be varied in the several particulars specified, and especially that the report might not be confirmed as to the apportionment of part of the lunatic's allowance among his relations in the manner therein mentioned; but that the Lord Chancellor would be pleased to make such order or declaration as would enable the petitioner to receive such other proportion of the said allowance as the petition required; but no order was made upon the petition. Lord Chancellor Eldon observed, "for a long series of years the Court has been in the habit, in questions relating to the property of a lunatic, to call in the assistance of those who are nearest in blood, not on account of any actual interest, but because they are most likely to be able to give information to the Court respecting the situation of the property, and are concerned in its good administration. It has, however, become too much the practice, that, instead of such persons confining themselves to the duty of assisting the Court with their advice and management, there is a constant struggle among them to reduce the amount of the allowance made for the lunatic, and thereby enlarge the fund which, it is probable, may one day devolve upon themselves. Nevertheless, the Court, in making the allowance, has nothing to consider but the situation of the lunatic himself, always looking to the probability of his recovery, and never regarding the interest of the next of kin. With this view only, in cases where the estate is considerable, and the persons who will probably be entitled to it hereafter are otherwise unprovided for, the Court, looking at what it is likely the lunatic himself would do if he were in a capacity to act, will make some provision out of the estate for those persons. So, where a large property devolves upon an elder son, who is a lunatic, as heir-at-law, and his brothers and sisters are slenderly or not at all provided for, the Court will make an allowance to the latter for the sake of the former, upon the principle that it would naturally be more agreeable to the lunatic, and more for his advantage, that they should receive an education and maintenance suitable to his condition, than that they should be sent into the world to disgrace him as beggars. So also, where the fa

ther of a family becomes a lunatic, the Court does not look at the mere legal demands which his wife and children may have upon him, and which amount, perhaps, to no more than may keep them from being a burthen on the parishbut considering what the lunatic would probably do, and what it would be beneficial to him should be done, makes an allowance for them proportioned to his circumstances. But the Court does not do this because, if the lunatic were to die to-morrow, they would be entitled to the entire distribution of his estate, nor necessarily to the extent of giving them the whole surplus beyond the allowance made for the personal use of the lunatic. There is difficulty as to the extent of relationship to which an allowance ought to be granted. There are instances in which the Court has, in its allowances to the relations of the lunatic, gone to a further distance than grandchildren-to brothers and other collateral kindred; but the principle is, not because the parties are next of kin of the lunatic, or as such have any right to an allowance, but because the Court will not refuse to do, for the benefit of the lunatic, that which it is probable the lunatic himself would have done" (u).

In a recent case, a petition was presented by a mother on behalf of her infant son, by which it appeared that a lunatic was tenant for life of estates of the annual value of 11907., with remainder in tail to the petitioner, an infant of the age of eight years, and the great nephew of the lunatic; and that the surplus income of the lunatic's estates, after payment of the allowance for maintenance, amounted to the annual sum of 800%. That the lunatic was seventy-five years of age, had been declared a lunatic twenty years, and was then in a most hopeless state of lunacy. That the mother of the infant petitioner had only an income of 40%. for their maintenance. The petition prayed a reference, to inquire into the state and circumstances of the lunatic, as to his family and relations, and particularly as to the circumstances of the petitioner, the infant, and whether his mother was capable of properly maintaining and educating him, with reference

(u) Ex parte Whitbread, In re Hinde, 2 Mer. 101-103.

to his rights, interests, and expectations, upon the death of the lunatic; and to certify whether it would be proper, that any increase should be made to the allowance for the maintenance of the lunatic, regard being had to his circumstances and estate, and also to the situation of the petitioner, the infant; and whether it would be proper that any, and what, allowance should be made to any person, and to whom, towards the maintenance and education of the petitioner, the infant, out of the rents and interest of the lunatic's estate. The petition stood over for some time, to give an opportunity to the committee to answer certain affidavits in support of it; and as it afterwards appeared that the surplus income of the lunatic was required for several contingent expenses, as renewing leases of his property; and that the lunatic, every other day, was capable of expressing his wishes as to the application of his property-Lord Chancellor Brougham, although he recognised the doctrine of Lord Eldon in the preceding case, refused to make the order prayed by the petition last stated (v).

In one case, where the Master had reported that the income of the lunatic was sufficient to allow the sum of 2001. a-year to be paid to each of his married daughters, and that the same ought to be allowed from the date of the commission, and that, from a subsequent period, an annual sum ought to be paid for the support of each of the lunatic's married children, in proportion to the income of the lunatic, and the wants of himself and his wife, and the other branches of his family; and that the net annual income of the lunatic ought to be divided into thirty-two equal parts, seventeen of which should be allowed for the support of the lunatic, his wife, and his two unmarried daughters, and the remaining fifteen parts paid to the four married children and the children of a deceased child—an order for apportioning the income of the lunatic amongst himself and his children and grandchildren was made (w).

A petition was presented for a natural child, by his mother and next friend, whereby it appeared to have been

(v) In re Windsor, 21 Dec. 1831. (w) In re Freak, 14 Aug. 1830.

the intention of a lunatic to give a natural child a liberal education, and the mother had not sufficient means for his support or for carrying those intentions into effect. Lord Chancellor Lyndhurst declared, that, under the particular circumstances of the case, the natural child ought to be maintained and educated out of the estate of the lunatic, and referred it to the Master, to inquire and certify what would be a fit and proper sum to be allowed for the past and future maintenance and education of the child (x).

Where the lunatic has two funds applicable towards his maintenance, and both are not required for that purpose, it will be charged on one fund exclusively of the other, if such arrangement is beneficial to the lunatic's estate. A mother, whose only daughter, a lunatic, was entitled to a large real and personal estate under her father's will, bequeathed the residue of her estate and effects to trustees, upon trust to apply the interest, amounting to about 1600l. a-year, towards the maintenance and support of her daughter, and otherwise for her comfort and advantage, as they should think proper, without being liable to account; and after her decease to pay the principal, and also such interest as should not have been actually so applied, to the testatrix's nieces. The Master found, that the residue of the mother's estate amounted to about 1600%. a-year; that an annual sum of 12001. was proper to be allowed for the maintenance of the lunatic; and that the whole of that allowance ought to be paid out of the income to arise from the property to which she was entitled under her mother's will. The next of kin prayed a confirmation of the Master's report; and the trustees under the mother's will presented a counter petition, praying that the lunatic's allowance might be charged, either entirely or at least rateably, on the income of the property which she derived from her father. The Court held that the testatrix intended that the fund should be applied, in the first instance, for the maintenance, support, and clothing of her daughter; it might turn out, eventually, that it was not a sufficient provision; which would explain the use of the

(x) In re Jodrell, 14 Aug. 1828.

M

word "towards;" and if there was any surplus, she gave it to the legatees over. Under these circumstances, it being for the interest of the lunatic, and not contrary to the intention of the will, it was held that the charge should be wholly borne by the maternal estate (y).

Where a lunatic had estates in England and Scotland, it was ordered that the burthen and expense of the maintenance and debts ought to be borne in a rateable proportion between his real and personal estate in England, and his real and personal estate in Scotland, regard being had to the respective incomes and produce of each estate; and the Master was directed to inquire into, and settle, the proportions accordingly (2).

Where it appeared by the petition of the committees of the person of a lunatic, that, in consequence of the unsettled state of the lunatic's affairs, no regular allowance had been fixed for his maintenance, and that they had advanced their own money for that purpose-It was referred to the Master to inquire and certify what sum would be proper to be allowed for a provisional allowance for the future maintenance of the lunatic, until the Master should have made his general report, and from what time such provisional allowance was to be payable (a).

SECTION VII.

Of the Allowance for Trouble to the Committees of the Estates of Lunatics.

THE general rule of the Court of Chancery is, not to make any allowance to committees of lunatics for their trouble in the execution of their trust; but, under particular

(y) In re Ashley, 1 Russ. & Marchioness of Anandale, 2 Ves. sen. Mylne, 371. 381; Reg. Lib. 1750, B. fol. 612, 13.

(*) Marquess of Anandale v.

(a) In re King, 11 Aug. 1829.