Page:Harvard Law Review Volume 8.djvu/493

THE SURPLUS INCOME OF A LUNATIC. 477 it is the purpose of this article to show maybe done directly within certain safe limits. One would think that a court would not rest easy in granting an allowance for the use of A, which it may do, to be spent for the use of B, which it says is wrong ; and yet it winks at B's profit, and (20 Ch. D. at 457-58) takes away the allow- ance when B's bills are not paid. (B.) Those cases where the court carries out for the lunatic definite enterprises begun or planned before his incapacity. Here also the considerations which furnish the ratio decidendi for the principal class of cases under discussion often effect and in- crease the liberality with which the court carries out the ward's wishes.^ " We often," said Cotton, L. J., in Re Whitaker, L. R. 42 Ch. D. at 126, "give out of the personal estate of a lunatic that which is mere bounty. That generally occurs in the case of charities where the lunatic has himself, while he was of sound mind, sup- ported institutions of a charitable nature." II. The first reported case after Ex parte Whitbread is — 1828. Ex parte Haycock, 5 Russ. 154. This was a petition presented by the committee praying a refer- ence to the Master, to approve of a proper allowance for four ille- gitimate children of the lunatic and for their mother.^ The Lord 1 This class comprises the following cases among others : Re Frost, L. R. 5 Ch. App. 699 (1870), Re Jodrell, Shelford on Lunacy, 161 (1828) ; Re Mackenzie, 43 L. T. 681 (1880); Hambleton's Appeal, 102 Pa. State, 50 (1883). In this case an old man without children, having a large estate, took his nephew and the nephew's family to live with him, paying all the expenses of the establishment and a salary to the nephew. Gordon, C. J., for the court, said that there was every reason for continuing the arrangement the lunatic had made when sane. Halsey's Appeal, 13 Atl. R. 934 (1888). Here the inquisition of lunacy found A, B, C and D to be the wife and three children of the lunatic, and the lunatic's property was applied for their benefit accordingly. The real and prior wife and a son by her turned up and made claim. Gordon, C. J., citing Hambleton's Appeal, said that the court would at any rate have ordered " the commit- tee to provide for the lunatic and the family which he then (/. e. at the time of inquisi- tion found) had about him." Re Strickland, L. R. 6 Ch. App. 226 (1871) ; Re Heney, 2 Barb. Ch. 326 (1847). So Re Whitaker, su/ra, ma.y by some be considered to belong here. 2 In argument two unreported cases were cited, Ex parte Galpin, " in which a gross sum had been allowed for the benefit of illegitimate children " (out of in- com2 ?) ; and Ex parte Spurrell, in which a yearly sum had been appropiiated for their maintenance.