Page:Harvard Law Review Volume 8.djvu/491

THE SURPLUS INCOME OF A LUNATIC. 475 is not what the particular hinatic with whose estate he is dealing would have done if he had been sane, but what any reasonable man of the same condition in life with the lunatic would do under the circumstances. He says, " 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 to 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." Thus it is what would " naturally " be more agreeable to the luna- tic, that the court considers ; that is, what would be agreeable to the normal man, with average notions of obligations to relatives and to society, and* not what would be agreeable to a man who is what this lunatic was before his insanity.^ Such then is Lord Eldon's rule. In the later English cases the expressions used by him are retained. But in almost all the cases it is clear that the sole test and sole limitation is that of the normal sane person in like circumstances. As the cases are very few and indicate interestingly the development of the principle, we proceed to consider them at some length. The order is chronological. Two interesting classes of cases are omitted as not directly in point. (A.) Those cases where the expenditure purports to have been upon the lunatic himself. It is obvious that a court can go far in allowing an infant or a lunatic to maintain a large establishment for the sake of the support of a family of brothers and sisters, upon the ground that such is really the best way to spend the ward's money upon himself. For instance, in Wellesley ^'. Duke of Beau- fort, 2 Russ, I, 1827, at p. 28, Lord Eldon says: ** In many great families the eldest infant is in possession of a large property; the younger infants have some little property; and in such a case the court does not measure the duty of maintaining the eldest child ^ Indeed, the latter test would fail utterly in many cases where the facts were scanty. For instance, the lunacy might have been congenital, and a court could scarcely go into the question of heredity. And so also where the insanity was gradual, it would he diffi- cult and dangerous to endeavor to distinguisli sane characteristics from generosity or meanness which were really symptoms of the approaching disease. This danger especially furnishes a strong argument for the more general test laid down by Lord Eldon. 63