it was held to go to the lunatic's representative as personalty, and as if it had been actually converted (f).

In another case, where a testator by will gave to his wife all his ready money and bank notes which he should have about his person, or at his residence, at his death, and gave specifically to others his exchequer bills, stock, &c., and became insane two months before his death, and during that time two large sums of money which had been paid at his house, were laid out for him in stock and exchequer bills-The Vice Chancellor said, that it was the duty of those who managed the testator's affairs, during his incapacity, to act as a provident owner would do, and not to leave large sums of money unemployed. That there was no equity between legatees; and, as between them, property duly converted must be taken in the same state and character in which it is found at the death of the testator (g).

The principle of not altering the right of succession to the property of a lunatic has been adopted in several enactments of the Legislature. By the statute 11 Geo. 4 & 1 Wm. 4, c. 65, s. 21—it is provided, that, upon the death of the lunatic all such sums of money arising by fines or premiums on the renewal of leases of the lunatic's property, or so much thereof as shall remain unapplied for the benefit of such lunatic at his death, shall, as between the representatives of the real and personal estates of such lunatic, be considered as real estate, unless such lunatic shall be tenant for life only, and then the same shall be considered as personal estate. The statute of 11 Geo. 3, c. 20, (which is repealed by the above statute) contains a similar provision (h). And, by the statute of 11 Geo. 4 & 1 Will. 4, c. 65, s. 29, it is enacted, that on any sale, mortgage, charge, incumbrance, or other disposition which shall be made in pursuance of that act, the person whose estate shall be sold, mortgaged, charged, incumbered, or otherwise disposed of, and his or her heirs, next of kin, devisees, legatees, execubridge and Others, 4 Madd. 495.

(f) Ashby v. Palmer, 1 Mer. 301. See Van v. Barnett, 19 Ves. 102; Seeley v. Jago, 1 P. Wms. 389.

(g) Browne and Others, v. Groom

(h) See post, Chap. viii. s. 1; 4 Br. C. C. 235, n.

tors, administrators, and assigns, shall have the like interest in the surplus which shall remain, after answering the purposes therein mentioned, of the money so raised, as he, she, or they would have had in the estate by the disposition of which such monies shall be raised, if no such disposition had been made; and such monies shall be of the same nature as the estate so disposed of: and power is given to the Lord Chancellor to make orders for the due application of such surplus monies. The statute 9 Geo. 4, c. 78, s. 2 (which is repealed by the last mentioned act) contains a similar provision, and by the 43 Geo. 3, c. 75, s. 2, which is in like manner repealed, it is provided that any surplus of money to be raised by any sale under that act shall be applied and disposed of in the same manner as the estate sold would have been applied (i).

It is conceived, that some important and difficult questions may arise under the acts of Parliament last cited, for `it often happens that a person previously to becoming a lunatic, has made a will disposing of different estates to different individuals, and, during the lifetime of the lunatic, judicial notice cannot of course be taken of the contents of his will, for the lunatic may recover and revoke it, or it may never be established, and if there are several testamentary papers it may not be known which is his will. Suppose, therefore, that a particular estate devised to one individual, should be sold or charged by the Lord Chancellor's order for discharging the lunatic's debts, or for paying the expenses incurred in the lunacy, or for any purposes for the general benefit of his estate, would the party to whom the estate sold or charged had been devised in the event of the lunatic's will being established after his death, be entitled to call upon the other devisees or heir of the lunatic, to make any contribution out of the other parts of the lunatic's estates remaining unsold, for the benefit of the party, whose interest had been defeated by such sale or mortgage.

: It may be doubted whether the statute (k) in question authorizes the Lord Chancellor to qualify his order for sale or (i) See post, Chap. viii. s. 2.

(k) 11 Geo. 4 & 1 Wm. 4, c. 65, ss. 28, 29.

mortgage, by inserting a declaration in it, that such sale or mortgage shall not, as between the person who would otherwise have become entitled to the estate sold or mortgaged, and the persons who shall, on the lunatic's death, become entitled to the other parts of his estates, prejudice the former beyond the proportion which he ought to bear of the sum raised; and that the persons who shall become entitled to the other parts of the lunatic's estates shall pay their proportions of the sum raised. Assuming that the Lord Chancellor has no power to make such a declaration, or having it, that he omits to do so (m), the question would be, whether the disappointed devisee or heir could compel, by a bill in equity, the persons who became entitled, on the lunatic's death, to the other parts of his estate, to contribute any and what proportions of the money which had been so raised, for the purpose of giving to the disappointed devisee or heir some equivalent for the interest devised to him, and sold or charged.

The decisions establishing the general rule in equity, that if a person has two funds to which he may resort, he shall not disappoint another person who can only resort to one of the funds (n), appear to have some analogy to the case now under consideration. Contribution is even allowed at law in some cases, upon the principle that one has paid that to which all are liable (0).

The right and duty of contribution is founded on doctrines of equity, and does not depend upon contract (p).

It may be assumed, in the absence of proof to the contrary, that all the devisees named in a will are equally the objects of the testator's regard, although the benefits conferred on them are unequal; and, if his presumed intention be allowed any weight, it should seem, that the principle of

(m) 11 Ves. 278.

(n) Aldrich v. Cooper, 8 Ves. 382; Trimmer v. Bayne, 9 Ves. 209; Carter v. Barnadiston, 1 P. Wms. 505; Henningham v. Henningham, 2 Vern. 355; and see 1 Eq. Cas. Abr. 113-117.

Cress. 688.

(p) Lawson v. Wright, 1 Cox, C. C. 275; Dering v. Earl of Winchelsea, Id. 318; 2 Bos. & Pull. 270. See 3 Bligh, 590; Walker v. Preswick, 2 Ves. sen, 622; and Suppl. by Belt, p. 449. See 3 Rep. 12 b; Vin. Abr,

(0) Collins v. Prosser, 1 Barn. & tit. “Contribution.”

contribution ought to be applied to the case under consideration; for it would be hard that one only should, at the option of a third party, bear the whole burthen which the testator probably would have divided amongst all the objects of his bounty; but at the same time it must be admitted, that some of the cases stated in the previous part of this section are against the admission of such a principle.

It is quite clear that a sale (q) or mortgage (r), or even a contract (s), made by a testator when of sound mind, defeats his will pro tanto; but whether the order of the Lord Chancellor acting under an act of Parliament on behalf of a lunatic, will have the same effect as an alienation by the testator himself, is a question which probably has not yet been the subject of judicial consideration.

(q) Sparrow v. Hardcastle, Ambl. C. 154. 224; 3 Atk. 799; Arnald v. Arnald, 1 Br. C. C. 401; 2 Dick. 645.

(r) Hall v. Dunch, 1 Vern. 329, 342; Earl Lincoln's case, 1 Eq. Cas. Abr. 411; 2 Freem. 202; Show. P.

(s) Ryder v. Wager, 2 P. Wms. 328; Cotter v. Layer, Id. 622; Bennett v. Earl of Tankerville, 19 Ves. 170.

R

212

CHAPTER VI.

OF THE ALIENATION OF ESTATES BELONGING TO
LUNATICS.

SECTION I.

Of Alienation by Matter of Record.

It may probably be assumed, that by the laws of every civilized country, in theory if not in practice, the consent of the parties to every private contract is a necessary ingredient.

In order to ascertain what persons possess a moral power of binding themselves by contracts, it is necessary to consider the nature of consent, which is the essence of every contract, and implies physical power and a moral power of consenting, as well as a deliberate and free use of such powers (a). Therefore, the absence of any of those capacities in either of the parties to a contract renders it void. It is obvious, that all persons, either totally destitute of reason, or so far bereft of it as not to have a will governed and directed by reason, or who are incapable of comprehending the nature of obligations, have no power, during the continuance of their infirmities, of giving a deliberate consent, and consequently of contracting by their own acts.

On these grounds, idiots and lunatics are incompetent to

(a) Puffendorf's Law of Nature and Nations; Barbeyrac's note 1, B. iii. c. 6, s. 3; Grotius de Jure Belli et Pa

cis, Lib. 2, c. 11, s. 5. See Pothier on Obligations, by Evans, 1 Vol. p. 29.