Page:Harvard Law Review Volume 8.djvu/499

483 THE SURPLUS INCOME OF A LUNATIC. 4^3 simply a debt of the lunatic {Re Marman's Trusts, L. R. 8 Ch. D. 256) ; (2) that the court would therefore not order the payment of more than six years of arrears. Here £",r/^r/<? Whitbread and analogous cases were not cited, nor was their principle urged upon the court. Had it been, it is submitted that the result might have been different, if (as does not appear) there had been a surplus of the lunatic's estate. For, it may be argued, the average man would not set up the statute of limitations against such a claim ; even if the service had been pro- fessedly gratuitous, he would pay something, and that the court should do for him. As a creditor the petitioner has no case. It should not follow, as the court here assume, that he is remediless. 1882. Re Weld, 20 Ch. D. 45 1, C A. In this case a heavy allowance was made to the lunatic's brother for the keeping up of Lulworth Castle, the family estate, and for the maintenance of the brother and two sisters. The brother became bankrupt, having attempted to mortgage the arrears of his allow- ance. Jessel, M. R., said that though rendering no account, the brother received the money in a fiduciary capacity, and it followed that he could not make a valid mortgage, and, as a general rule, ought to be removed if he tried to. A bill for wines,^ and other bills for supplies furnished to Lulworth Castle, were considered proper payments to be made out of the arrears of allowance. Nothing went to the mortgagee or the trustee in bankruptcy. This seems to follow Re Hennessy, i J. & La T., 29, supra^ p. 481. The nature of the interest which the recipient of such an allowance has, is discussed more at length below. 1882. Re Sparrow, L. R. 20 Ch. D. 320 (C. A.). Here the petitioner, a clergyman aged twenty-eight, with an income of iTioo, and a curacy worth ;^I20, was nephew and heir- at-law of the lunatic, entitled in remainder to the entailed estates, and one of many next of kin, several of whom opposed and insisted that such allowances were never made except with the consent of all concerned. They also said that if any allowance should be made it must be treated as an advancement, and insurance ef- fected. The surplus income was ;^20D0. Jessel, M. R., said that he could and would make the allowance of ;^500 prayed for; and, the petitioner consenting, the estate tail was ordered to be barred 1 Per Jessel, M. R. "I am not sure that they are rightly called articles of luxury." VOL. VIII. — 8 64