Page:Harvard Law Review Volume 8.djvu/490

474 HARVARD LAW REVIEW. whether he was extravagant or careful, liberal or mean. Unless it can be shown that there is some special reason why the lunatic would not, if he were sane, assist the particular applicants in ques-» tion, the court will dispose of his surplus property in accordance with the views of a reasonable and ordinarily liberal man, though such views would never be entertained by the lunatic if he were sane. The courts will not hear evidence on the question how a miser or a spendthrift, if he were sane, would dispose of his surplus income. We proceed to trace the applications of the principle indicated above in the reported cases. The earliest adjudication on the sub- ject appears to be an order of Lord Thurlow's in Re Cotton. There is no complete report of the case. The only information to be had about it is contained in a reporter's note to Ex parte Whitbread, where the order is merely said to have overruled an objection to a Master's report allowing maintenance from the lunatic's income to his relations generally, " without specifying the proportions which were meant to be granted to the relations respectively." The Chancellor's reasons are not stated. And all trace of this case seems to have been lost; for in i Collinson on Lunacy, 246, in 1812, it is said: " When any of the relations of a non-compos are dependent on him, whom he is bound to provide for according to the claims of nature, tho^Jgh not in law, and for whom he pro- vided when of sound mind, the Chancellor cannot direct a specific allowance for their support, but their expenses will be included in the general charges of the establishment, and the maintenance of the non-compos regulated accordingly." The next case, which is the leading English case on the subject, is Ex parte Whitbread, in the Matter of Hinde, 2 Mer. 99. 1816. The case came before Lord Eldon, on objections to a Master's report, the grievance being the smallness of the proportion of the lunatic's surplus income allowed to the petitioner, a niece of the lunatic. The facts are very obscurely stated. No order was made on the petition, but the Chancellor discussed somewhat at length the principle on which such allowances are made. His language at first seems to make the test question, What would this lunatic do if he were sane? . . . "The court," says he, (p. 100), "look- ing 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 " [the relatives]. But the next sentence of the opinion shows that the test that Lord Eldon intended to lay down