[*§ 1364 a. By the present construction of the English statute,1 the Lord Chancellor has authority to give consent, on the part of a lunatic, tenant in tail in possession, that the first tenant in tail in remainder may bar the subsequent limitations, on a proper case being made out for the exercise of that authority. In the case ing of the commission is under the direction of the great seal, and the care and custody of the person and estate is a matter which, after the abolition of the Court of Wards and Liveries, seems to have fallen back to the crown, to be provided for upon a special application for the purpose. At the same time, the duty thus thrown on the crown was often difficult. It was to be performed by the crown according to the advice upon which the king might constitutionally act, and it has, therefore, long been the practice, from time to time, to authorize, by the king's sign-manual, the person holding the great seal, to exercise the discretion of the crown in providing for the care and custody of the persons and estates of lunatics, which has been usually done by grants to committees. But I apprehend, that, though the discretion of the crown has been thus delegated to the person holding the great seal, yet the superintendence of the conduct of the committee in the management, both of the property and the person, originates in the authority of the court itself, as the court, from which the commission, inquiring of the lunacy, issues, and into which the inquisition is returned, and which makes the grant founded on the inquisition; for which grant the sign-manual (which is countersigned by the lords of the treasury), is a general warrant. The reason, given in the warrant, for delegating the power of appointing the committee, to the person holding the great seal, is, because the jurisdiction of issuing the commission, and, consequently, of acting upon it, is, by law, in the great seal. And I conceive, that the warrant itself implies no more; and that nothing is communicated by it, but simply the selection of the person to whom the grant shall be made. But as the king is bound, in conscience, to execute the trust reposed in him by the statute, and cannot do it otherwise than by bailiff, the chancellor, or person holding the great seal, is the EQ. JUR.-VOL. II. proper authority to direct and control 2 In re Blewitt, 6 De G., M. & G. 187. This case was heard before the Lord Chancellor and the Lords Justices, on appeal, and the former decisions, Re Blewitt, 3 Myl. & K. 250, and Re Wood, 3 Myl. & Cr. 266, were overruled. The more common practice in the American States, where a conveyance of the title of the lunatic's real estate is required, is for the guardian of the lunatic to petition 39 of a devise of real and personal estate, to trustees, to apply the whole, or any part of the rents, to the maintenance of an imbecile person, it was held that the trustees could not interpose their discretionary power to oust the jurisdiction of the court; and that the trust was in exoneration of the private property of the cestui que trust, so that his personal representative might claim to have recouped out of the income of the trust property any sum which he may have applied out of the private property of the imbecile towards his maintenance.1] § 1365. In regard to the manner of ascertaining whether a person is an idiot or lunatic, or not, a few words will suffice. Upon a proper petition addressed to the chancellor, not as such, but as the person acting under the special warrant of the crown,2 a commission issues out of chancery,3 on which the inquiry is to be made, as to the asserted idiocy or lunacy of the party. The inquisition is always had, and the question tried by a jury, whose unimpeached verdict becomes conclusive 5 upon the fact. The commission is not confined to idiots or lunatics, strictly so called; but in modern times it is extended to all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs, and therefore are properly deemed of unsound mind, or non compotes mentis.9 8 the court having jurisdiction, for leave to dispose of the estate of the ward, which, in practice, amounts to the same thing. The court will do on behalf of a lunatic what a just and reasonable owner would do, and will restrain the committee from ousting a tenant when contrary to justice or sound policy. In re Wynne, L. R. 7 Ch. App. 229. And property falling to a lunatic will be applied to past maintenance, though no inquisition had been had. In re Gibson, L. R. 7 Ch. App. 52. So income of separate estate of a married woman may be applied to her support when lunatic. Davenport v. Davenport, 5 Allen, 464; In re Baker's Trusts, L. R. 13 Eq. 168. 1 In re Sanderson's Trusts, 3 Kay & J. 497. See also Cope v. Wilmot, 1 Coll. 396, note a, which is here commented upon.] Webb, 2 Phillips, Ch. 10, 245; 2 Cooper, 145. 4 Lysaght v. Royse, 2 Sch. & Lefr. 153; Ex parte Fitzgerald, 2 Sch. & Lefr. 438; In the matter of Webb, 2 Phillips, Ch. 10; In the matter of Joanna Gordon, 2 ibid. 242. 5 See Rogers v. Walker, 6 Barr, 371. 6 In New York, it has been said, the court might issue a new commission, if it appeared that the jury upon the first commission manifestly erred in their decision. In re Lasher, 2 Barb. Ch. 97. [See In re Sarah Collins, 3 C. E. Green, 253. But in most of the States, equity exercises no general jurisdiction over either the person or property of lu natics. Dowell v. Jacks, 5 Jones, Eq. 417.] 7 [In re Sarah Collins, 8 C. E. Green, 253. See Queen v. Shaw, L. R. 1 C. C. 2 See Sherwood v. Sanderson, 19 Ves. 145.] 285. 3 This commission will be issued to such person as is most likely to bring out the whole truth as to the lunacy. In re 8 See Monaghan, in re, 3 Jones & Lat. 258. 9 Gibson v. Jeyes, 6 Ves. 273; Ridg way v. Darwin, 8 Ves. 66; Ex parte § 1365 a. The jurisdiction of the Court of Chancery over lunatics is not confined to lunatics domiciled within the country; but a commission of lunacy may issue where the lunatic has lands or other property within the State, although he is domiciled abroad.1 [* § 1365 b. And where a person of unsound mind had been maintained in a lunatic asylum, by his parish, a portion of the capital of a fund belonging to him was ordered by the vice-chancellor, acting under his general chancery powers, to be paid in satisfaction of the claim for this support. A query is here raised by the court, upon reviewing the cases upon that subject, how far it is proper for them to order capital expended in support of the lunatic, or the payment of his debts. But it is finally assumed, that the court has a discretion to order such payment as it may deem most for the benefit of the lunatic.2 § 1365 c. Suits are sometimes entertained in the English courts of equity on behalf of persons of weak mind, brought by next friend, where no commission of lunacy has been obtained, and decree made for the protection of the plaintiff's property, and liberty given to apply in lunacy as to its application.3 § 1365 d. Where a court of equity is invoked to set aside a conveyance made by a lunatic, it exercises the broadest equity, and does not treat the conveyance as necessarily void. In such case, he who seeks equity must do equity, and if it would on the whole case be inequitable to set aside the conveyance, or declare it void, the court will decline to act.1] Cranmer, 12 Ves. 446; Sherwood v. Sanderson, 19 Ves. 285. Some statutes have, in modern times, been passed in England, relating to idiots, lunatics, and persons non compotes mentis, authorizing certain acts to be done on their behalf by the committee, under the direction of the Court of Chancery. They will be found summarily stated in Jeremy on Eq. Jurisd. B. 1, ch. 4, p. 213, 214. 1 Southcote's case, 2 Ves. 402; Perkin's case, 2 Johns. Ch. 121; Petit's case, 2 Paige, 174; In the matter of Gause, 9 Paige, 416; In the matter of the Princess Bariantinski, 1 Phillips, Ch. 375; In re Fowler, 2 Barb. Ch. 305. [For a case where income only of English property was ordered to be paid to curator bonis of Englishman put under guardian ship as a lunatic in France, see In re Garnier, L. R. 13 Eq. 532.] 2 [* Buckley's Trust, in re Johnson, Eng. Ch. 700. For a case where allowance was made out of surplus income for support of next of kin, see In re Frost, L. R. 5 Ch. App. 699. And for a case where a subscription to a charity was allowed out of surplus income, see In re Strickland, L. R. 6 Ch. App. 226. So the expense of a journey of pleasure by the insane person was allowed out of his estate. Kendall v. May, 10 Allen, 59. 3 Light r. Light, 25 Beavan, 248. See also Conduit v. Soane, 5 Myl. & Cr. 111; In re Berry, 13 Beavan, 455; In re Irby, 17 Beavan, 334. See Herring v. Clark, L. R. 4 Ch. App. 167. 4 Canfield v. Fairbanks, 63 Barb 461.] CHAPTER XXXVII. MARRIED WOMEN. [* § 1366, 1367. Disabilities of married women, at law. § 1367 a. The wife's personalty vests in the husband. § 1368. In equity, husband and wife treated as distinct persons. § 1369. Distribution of the subject into several heads. § 1370. Equity will enforce contracts between husband and wife. § 1371. Contracts to take effect after coverture ceases. § 1372. Postnuptial agreements binding in equity. § 1372 a, 1372 b. Equity will protect wife's property in husband's possession. § 1373. Equity will treat the wife as creditor of the husband. § 1374. Will uphold conveyances from husband to wife. § 1375. Will protect wife's pin-money. § 1375 a. But this is personal to the wife. § 1376. The widow's paraphernalia. § 1377. Paraphernalia received from the husband, or others. § 1377 a. Settlements, after marriage, on consideration, good. § 1378. Equity recognizes the wife's right to separate estate. § 1379. This may be secured, by contract, before marriage, or even after mar riage. § 1380. Intervention of trustees not indispensable. § 1381. How property shall be so secured, difficult to define. § 1382. Must be clear intent to put it beyond control of husband. § 1382 a. Wife's control may also be limited. § 1383. Equivocal words do not exclude marital rights. § 1384. Gifts to separate use of unmarried women. § 1385. Wife may carry on trade separate from her husband. § 1386. Agreements for separate trade after marriage. § 1387. Equity enforces such contracts without trustees. § 1388. Right of the wife to dispose of her separate estate. § 1889. Distinction between control of real and personal estate. § 1330. That distinction now abandoned. § 1391. Husband's consent during coverture only binds his interest. § 1392. Wife's control over real estate acquired during coverture. § 1393. Her control over personal, and income of real, estate. § 1394. What estates vest absolutely in wife. § 1395. Wife may dispose of her separate estate to husband. § 1396. Court will aid the wife in such cases. § 1397. Can only bind her separate property in equity. § 1397 a. What language sufficient to exclude marital rights. § 1398. This not liable for her general engagements. § 1399. But only for such debts as are charged thereon. § 1399 a. How far her contracts to convey are valid and binding § 1400, 1400 a. The fact of contracting a debt ought presumptively to make it a charge on her separate estate. § 1401. What contracts of wife are a charge on her separate estate. § 1401 a. Latest decisions upon the question. § 1401 b. Subject further discussed with reference to later cases. § 1401 c. The labor of married woman and her children may be secured to her separate use. § 1401 d. The point further discussed, and the mode of charging separate estate pointed out. § 1401 e. How the separate estate may be bound. § 1401 f-1401 i. Same subject further discussed. § 1402. Husband's legal control over wife's estate. § 1403. Equity will not ordinarily interfere with husband's control. § 1404, 1405. But when it comes into equity, that court will secure the wife's maintenance. § 1406. This extends also to the issue of the marriage. § 1407, 1407 a. It seems to be but a reasonable protection. § 1408. It extends to all cases where the husband seeks aid in equity. § 1408 a. Equity will interfere where there is an attempt to evade the jurisdiction. § 1409. This will not be done contrary to the law of the domicile of the parties. § 1409 a. Questions affecting domicile. § 1410. Husband may dispose of wife's leasehold estate held by trustees. § 1411. Husband's assignees take subject to wife's equity. § 1412. This extends also to bonâ fide special assignees and purchasers. § 1413. So also as to her equitable reversionary interests. § 1414. The settlement will be decreed in such cases at the wife's suit. § 1415. Mode of enforcing the wife's support. § 1416. How wife's equity to settlement waived. § 1417. This is personal to the wife. § 1418. Wife may waive settlement, unless she was a ward of court § 1419. She may also forfeit this right by misconduct. § 1419 a. But court will not change a settlement for that reason. § 1420. Nor withhold a settlement stipulated before marriage. § 1424. And equity will apply equitable estate for alimony. § 1425. So, if there has been an express contract. § 1426. Equity will not aid the wife when in fault. § 1427. Will not enforce articles of separation. § 1428. Construction and enforcement of deeds of separation. § 1428 a. Equity cannot restore conjugal rights. § 1429. Equity in its application to this relation.] § 1366. WE may next proceed to the consideration of the peculiar jurisdiction exercised by courts of equity, in regard to the persons and property of MARRIED WOMEN; and, principally, in regard to their property. It is not our design, in these commentaries, to enter upon any consideration of the general doctrines relative to the rights, duties, powers, and interests of husband and wife, which are recognized at the common law. That would |