Page:Harvard Law Review Volume 8.djvu/501

THE SURPLUS INCOME OF A LUNATIC. 485 lishmaii's feeling of obligation to his cousins.. In a Scotch clan, as the Master of the Rolls intimates, a different obligation would be felt. Probably in this country, in New England at least, an average man who had an income of ^925 ($4600), which he could not reasonably spend, would arrive at a different result. It may be doubted, therefore, whether an American court would follow Re Evans. 1884. Re Robinson, 27 Ch. D. 160 (C. A.) ; S. c. 53 L. J. Ch. 986. An annual allowance of £60 by way of alimony, was after the lunacy of the husband provided for by an order in lunacy. The wife sold and her assignee mortgaged the allowance.. The assignee and mortgagee petitioned for its payment to the latter. Baggallay, L. J., said that he preferred to treat it as an allowance in lunacy, given out of " charity," so to speak, the reason for which did not exist after assignment, and the payment of which, therefore, " ought no longer to be sanctioned." Cotton and Lindley, L.JJ., agreed with Baggallay on this point. 1888. Re Darling, L. R. 39 Ch. D. 208, C. A. Here the gross income was ;^i647, the surplus income ^^857, after continuing certain annual allowances made by the lunatic while sane to three of his first ten cousins and next of kin. The Master recommended an increase of these allowances, and also allowances to three other first cousins, all six being in extremely narrow cir- cumstances. Counsel attempted to distinguish the case from Re Evans, supra, on the ground that here there was no opposition. Cotton, L. J., distinguished as a separate class " those cases in which an allowance has been made by the court in favor of a per- son who is the next successor to the lunatic's estate, for it is," he said, " the interest of every possessor of an estate that his suc- cessor should be educated and brought up in such a manner as to enable him to fulfil the duties attaching to the ownership of the estate." He added that Re Evens rendered it unnecessary to go into the question, and that consent or opposition should have no weight in any case. Fry, L. J., said : " I am by no means satis- fied that if the lunatic were of sound mind he would have made any further allowances to these relatives." No allowances were made. Fry's ambiguous remarks may or may not indicate that he thought any special generosity or penuriousness of the lunatic when sane ought to be taken into account. Cotton's point of