Page:Harvard Law Review Volume 8.djvu/489

473 THE SURPLUS INCOME OF A LUNATIC. 473 authority an interesting question has occasionally arisen which it is the purpose of this article to discuss, namely, what disposition , is to be made of the surplus income of the lunatic remaining after every reasonable and proper expenditure has been made for his care and comfort? There are only a few reported cases in English jurisdictions, and scarcely any in the United States, defining the circum- stances under which the guardian of a lunatic may spend a por- tion of his ward's income for objects not directly connected with the ward's maintenance. These cases announce with more or less clearness a tolerably definite principle, though in a few the principle seems to have been wrongly applied. In emphasiz- ing one proposition all the authorities are agreed. That propo- sition is, that before any portion of his income can be devoted to other purposes, the ward himself must be provided with every comfort that he requires or to which he has been accustomed. There must be no economizing for the purpose of making an allowance to needy relatives, or in order to save something for the next of kin.^ But when the ward has been liberally provided for, if there is still a surplus of income, allowances may, under certain circumstances, be made to the lunatic's relatives and to certain other persons. The only principle that can produce coherency or consistency in making such allowances is the principle laid down by Lord Eldon, in Ex parte Whitbread, 2 Mer. 99. Although it has not always been squarely followed by the courts, that principle, it is submitted, is this. Where there is no evidence of any settled intention of the lunatic before his insanity in regard to the matter, or of any intention formed during his rational moments, the court will presume that were the lunatic sane he would act in the mat- ter as any reasonable and ordinarily generous man would act under the same circumstances. In none of the cases, not even in those where the court professes to make " what the lunatic himself would do if he were sane," the ratio decidendi, is any account taken of the idiosyncrasies of the lunatic, that is to say 1 See remarks of Lord Eldon in Oxenden v. Lord Compton, 2 Ves. p. 69, 1793, and in Ex 'arte Whitbread, 2 Merivale, 99, 1816, and of Ames, J., May v. May, 109 Mass. at page 256, 1872.