and incumbrances, and other dispositions, or for any of such purposes as aforesaid, as such Lord Chancellor, intrusted as aforesaid, shall respectively direct; and that the monies arising from any such sale, mortgage, charge, incumbrance, or other disposition, may be paid, laid out, and applied in payment of the debts and engagements of such lunatic, the discharge of any incumbrances on his estates, the costs of applying for and obtaining the commission of lunacy and in opposition thereto, and all the proceedings under the same commission, or incurred under the order of such Lord Chancellor, intrusted as aforesaid, and the costs of such sales, mortgages, charges and incumbrances, and other dispositions, in such manner as the said Lord Chancellor, intrusted as aforesaid, shall direct; and to direct the committee of the estate of such person to execute in the place of such person respectively, conveyances of the estates so to be sold, mortgaged, incumbered or disposed of, and to do all such acts as shall be necessary to effectuate the same, in such manner as such Lord Chancellor, intrusted as aforesaid, shall direct."

It is also provided by 11 Geo. 4 & 1 Will. 4, c. 65, s. 29, that, on any disposition to be made under that act, the person whose estate shall be sold, mortgaged, charged, incumbered, or otherwise disposed of, his heirs, next of kin, devisees, legatees, executors, administrators, and assigns, shall have such and the like interest in the sur plus which shall remain, after answering the purposes aforesaid, of the money so raised, as he or they would have had in the estate by the sale or mortgage or other disposi tion, of which such monies shall be raised, if no such sale or mortgage or other disposition had been made; and such monies shall be of the same nature and character as the estate so sold or mortgaged or disposed of; and the Lord Chancellor, intrusted as aforesaid, may direct such acts and deeds to be done and executed, as shall be necessary for carrying the aforesaid objects into effect, and for the due application of such surplus monies (e).

(e) Provisions of a similar nature are usually inserted in private acts,

for the sale of lunatics' estates. See post, Sect. 4, and ante, pp. 238--241.

It is also provided, that nothing in that act contained shall extend to subject any part of the estates of any person being lunatic, to the debts or demands of his creditors, otherwise than as the same were then subject by due course of law, but only to authorize the Lord Chancellor, intrusted as aforesaid, to make order in such cases as were thereinbefore mentioned, when the same shall be deemed just and reasonable, or for the benefit or advantage of such lunatic (f). The powers and authorities given by this act to the Lord Chancellor of Great Britain, intrusted as aforesaid, extend to all land within any of the dominions, plantations, and colonies belonging to his Majesty (except Scotland and Ireland) (g). And it is declared, that the powers and authorities given by that act to the Lord Chancellor of Great Britain, intrusted as aforesaid, may be exercised in like manner by, and are thereby given to, the Lord Chancellor of Ireland, intrusted as aforesaid, with respect to all land in Ireland (h).

The powers conferred on the Lord Chancellor, by the preceding statutes, are certainly very extensive; but it should seem, that in exerting them he ought to be guided by a sound discretion, and that in making orders for the sale or mortgage of the estates of lunatics, particularly the former, a case of necessity or expediency ought to be required to be established by the committee making the application; for example, that the property is so circumstanced, as to locality or otherwise, that it cannot be beneficially enjoyed by the lunatic, but may be disposed of to advantage, (as in cases where a trade or business has been carried on); that there are incumbrances upon the estates of, or debts due from, the lunatic for the payment of which it is necessary to provide a fund, (there being no other available for those purposes); or that the income of the lunatic's estate will be so increased by converting it into personalty as to afford an ample fund, where before there was a deficient one, for his maintenance, by investing the produce of the sale in some

(f) 11 Geo. 4 & 1 Will. 4, c. 65, s. 30.

(g) Id. s. 39.

(h) Id. s. 40.

other mode, as in the purchase of an annuity, or in the funds. In all applications by the committee for altering the estate of the lunatic, it ought to be considered how far the interest of the latter will be promoted, and no such application ought to be granted, unless the committee can shew satisfactory reasons for exerting the extraordinary powers upon this subject now given by the Legislature to the Lord Chancellor.

3. When the committee of the estate of a lunatic is desirous of raising money on a mortgage of the lunatic's estate, the application must be made on petition to the Lord Chancellor (previous notice of it having been given to the heirat-law and next of kin of the lunatic), setting out the particular debts or incumbrances for the payment of which it is necessary or expedient to provide; if the application be granted, the Master will be directed to make the necessary inquiries, and, in some cases, the reference to him is to inquire whether the particular debt mentioned in the petition is due from the lunatic within the meaning of the act authorizing the committee to mortgage (i). After the Master has reported that the sum proposed to be raised constitutes such a debt, and that he has perused and approved of the security for it, such report will be confirmed, and an order will be made that the committee of the estate may be at liberty, in the name and in the place of the lunatic, to execute the mortgage for securing the principal sum and interest mentioned in the report; and such directions as to the application of the mortgage-money will be given as the nature of the case may require, and the costs attending such mortgage will be ordered to be taxed, and paid out of the lunatic's estate (k).

References on this subject are sometimes made in more general terms: thus, in one case, it was referred to the Master, to inquire whether it would be proper that any and what parts of the real estates of the lunatic should be sold or mortgaged for the purpose of raising sums of money mentioned in the pe

65.

(i) 11 Geo. 4 & 1 Will. 4, c.

(k) In re Buckle, 19 December,

1827.

tition, and found by the Master's former report to be due from the lunatic ()-It was held, that the last reference could not be proceeded in after the death of the lunatic (m).

In order to obtain a sale of the lunatic's real estate, a petition must be presented by the committees of his estate (of which notice must be given to the heir-at-law and next of kin of the lunatic), and if the Lord Chancellor grant the application, it will be referred to the Master to inquire whether it will be proper to sell any parts of the lunatic's estate;-upon inquiry before the Master, evidence shewing the necessity for such sale, a state of facts, and a valuation of the property, should be laid before him, who will report as to the propriety of the proposed sale, and, if he find that it will be proper to sell any part of the estate, an order for confirming his report must be obtained on the petition of the committees, in which it will be further ordered, that they shall be at liberty to proceed to a sale of the estates mentioned in the report, and to apply the money to arise therefrom as shall be thereby directed, being for purposes authorized by the act of Parliament (n).

On the confirmation of the Master's report, approving a sale, an order will be made, that the particular estate in question may be sold by public auction, with the approbation of the Master, to the best purchasers who can be obtained, subject to his allowance (o): and he will be directed to settle a reserved bidding for the estates directed to be sold, in order to prevent the same being sold for an inadequate consideration, and to appoint persons to bid for the same accordingly (p). When the Master has reported that a particular person has become the purchaser of the estate directed to be sold, or any part thereof, the purchase may be confirmed on the petition either of the committee, or of the purchaser, of the estate, whereupon it will be or

23.

(1) In re Holmes, 14th Jan. 1831. (m) Id. 19th Aug. 1831, ante, p.

The sales of estates in lunacy are for the most part conducted in the same way as those under a decree of the 11 Geo. 4 & 1 Will. 4, c. 65, Court of Chancery. As to which, see Sugd. V. & P. c. 2.

re Walter, 6th Aug. 1826.

(p) In re Walter, 6th Aug. 1825.

dered that the latter pay the amount of his purchase-money into the Bank of England, with the privity of the Accountant-General of the Court of Chancery (to be placed to such account as the case may require), and upon payment thereof be let into possession of the estate purchased, and that a proper conveyance of such estate be executed by the committees of the estate to the purchaser at his own expense. The conveyances of the estates of lunatics are generally directed to be settled by the Master, in case the parties differ about the same; and the costs incurred by the committees and next of kin of the lunatic about the sale, are usually directed to be taxed and paid out of his estate.

In a case, where the Master had reported that considerable sums of money were due from the estate of the lunatic for costs incurred in the lunacy, and in other legal proceedings arising thereout, and that there were no available funds for payment of them, and that it would be proper to provide for their payment by sale of part of the lunatic's real estate, and that the remainder of the lunatic's property, after the proposed sale, would produce an annual sum nearly equal in amount to the sum allowed for his maintenance-Such report was ordered to be confirmed, and the costs of the committee and next of kin of the lunatic to be taxed, and such costs, when taxed, and other costs which had been taxed under a former order, were directed to be raised and paid out of the monies to arise from the sale of the estates of the lunatic thereinafter directed to be sold, and out of the balance remaining in the hands of the committee. -And it was ordered, "that the several freehold and leasehold estates and other property belonging to the lunatic, comprised in the several valuations made thereof respectively, as stated in the said report, should be sold either by public auction or private contract, with the approbation of the Master (subject to any mortgage or mortgages thereon, or any part thereof, in case the mortgagee or mortgagees should not concur in such sale), to the best purchaser or purchasers that could be gotten for the same, to be allowed by the Master, wherein all proper parties were to join as the Master should direct, with liberty for the Master out of