Page:Harvard Law Review Volume 8.djvu/507

491 THE SURPLUS INCOME OF A LUNATIC. 49 1 with allowances made by the court out of a lunatic's surplus. The court represents the lunatic, and should act as he would under like circumstances. Therefore if the advancement cases show that a sane person would not be reasonably expected to treat an allowance as an advancement, why should the court adopt a different rule in lunacy cases? A practical reason is not far to seek. In fact a lunatic's surplus rolls up for the benefit of his next of kin, and their expectations may be disappointed. But what shred of right or claim, we ask with deference, can they have to demand that the surplus shall roll up? The court watches jealously to see that they do not economize on the lunatic's maintenance,^ and why should not the rule be the same here? Another reason, which per- haps has had more weight, is that some judges, frightened at what seems to them audacity in exercising this jurisdiction, try, as soon as they have done anything, to neutralize its effect; and so in their decisions the Court of Chancery, instead of acting as the wise guardian, carrying out the lunatic's wishes, seems furtively to make a loan out of funds in court, and make it payable out of the bor- rower's expectations, — a true post-obit, since the next of kin of to-day may not survive the lunatic. Take as an example the case of Re Frost, L. R. 5 Ch. App. 699 (1870). There the court continued allowances made by the lun- atic to needy relatives. The surplus was large, yet the allow- ances from their size and nature might almost have been made by overseers of the poor. James, L. J., nevertheless, without giving reasons, said that the allowances must be treated as advance- ments. Now, no one with so large a surplus income as that of this luna- tic would consider such allowances as advancements to be deducted out of the recipients' legacy or distributive share. And so espe- cially where, as here, the allowances had been begun by the lunatic, any reason for treating the payments as advancements seems to be wanting. In Re Willoughby, supra. Chancellor Walworth seems to have thought that these allowances would be treated as advancements where possible, except in the case of " children who are sickly or decrepit, so as to give them a special claim on the lunatic for sup- port." With deference it is submitted that this is at least no improvement on the English rule. In any case the recipient 1 Pope, Lunacy, p. 147 and note/, 2d ed. 1890. VOL. VIII.— 8 65