Page:Harvard Law Review Volume 8.djvu/505

THE SURPLUS INCOME OF A LUNATIC. 489 share of the lunatic's surplus income, and it is obvious that no court could safely extend its jurisdiction so far as to carry the test of the normal man to its logical extreme.^ The decisions, however, furnish no authoritative rule for drawing the line. On the one hand, it is clear that the class of possible beneficiaries is not lim- ited to relatives of the lunatic ; on the other hand, it seems equally certain that the applicant must bring strong proof to move the court. For, as Bowen, L. J., said in Re Darling, j'«/r«, "jurisdic- tion to make allowances . , . ought to be exercised with the utmost jealousy." And one may tentatively suggest, as a general rule, that wherever the applicant is a near relative, legitimate or illegiti- mate, or where he has at some time been in intimate personal relations with the lunatic, the court may, in proper circumstances, make the allowance. In extreme cases the court might go farther, but should tread such paths with caution and jealousy. The rules for determining what are proper circumstances to entitle an applicant to an allowance are equally vague. Abso- lute indigence is clearly not essential. On the contrary, an heir- at-law, the next in remainder, or the brother who keeps up a family estate (cf Re Weld, supra) may be kept in luxury. What would be an ample allowance for a day laborer (^Re Croft, supra) has not been increased because an adequate allowance for a clergy- man was larger. {Re Blair, Re Sparrow, supra.) In Re Blair .5^150 each was given to two nephews with incomes of ;^300. In Re Sparrow the applicant finally got ;^700 per annum, bringing his income up to ;^i(X)0; and the general test seems to be there well laid down by Baggallay, L. J. " What," he asked, " would be a reasonable allowance to enable the nephew to maintain his position? " Another question which has arisen deserves serious considera- tion. Under what circumstances is assistance rendered in the exercise of this jurisdiction to be treated as an advancement, and brought into hotchpot if the lunatic (as most lunatics do) dies intestate? The law of advancements in England is still determined by sec. 5, chap. 10, of 22 & 23 Car. II., the Statute of Distributions, and by the judicial interpretations of that Statute. Sec. 5 reads, . . . "And all the residue by equal portions to and amongst the children of such persons dying intestate . . . other than such child or children [not 1 For insta'^ee, a lunatic may have given annually in charity $1000, each year to a different charity The court cannot very well continue that, it would seem.