V.-C. W. 1871 Nov. 17; In re BAKER'S TRUSTS. Pauper Lunatic in Colony-Maintenance-Wife's Separate Estate-Colonial The accrued dividends on a fund settled to the separate use of a married woman, who had been for many years an inmate of a pauper lunatic asylum in the colony of Victoria, Australia, were ordered to be paid to the Colonial Master in Lunacy towards the payment of expenses incurred for past maintenance; and the future dividends on the same fund were ordered to be paid to the same Master in Lunacy, he being, on the construction of the Colonial Statute, the committee of the lunatic's estate. PETITION. Samuel Baker, the father of Sarah Salmon, by will, on the 13th of June, 1852, devised his farms to his sons; and after bequeathing to each of his children the sum of £600, or enough to make up that sum in case he had advanced them money in his lifetime, directed that the income of the residue of his estate should be paid to his wife for her life, and that after her death the residue should be divided amongst his children. The testator settled his daughter Sarah's share (including the £600) upon her for life, for her separate use, and so that it should not be alienable, and after her death, gave it to her children, and in case she should have no children he gave it to her brothers and sisters, or such of them as should be living at her death. The testator died on the 15th of June, 1852. The residue of the testator's estate amounted to more than £9000. It was invested, and the income was paid to the widow during her life. She died in 1864. Sarah Salmon, on the 17th of August, 1846, intermarried with Laurence Salmon, a builder. They both went to Australia. Nothing was heard of Sarah Salmon for some years. It appeared in evidence that she was, on the 27th of October, 1858, admitted as a pauper inmate into the lunatic asylum at Melbourne, Victoria, and that she had been there ever since. The share of Sarah Salmon, under her father's will, amounted to about £1400. The money was paid into Court and invested in consols. The husband was living, but was unable to maintain his wife. He had not been served with this Petition, which was presented by the Master in Lunacy of the Colony of Victoria, Australia, praying that the arrears of the dividends on the consols (about £260) might be applied towards the expenses incurred by that colony in the maintenance of Sarah Salmon, and also that the future dividends might be applied towards the lunatic's future maintenance. Mr. A. C. Bruce, for the Petitioner : This is the first case in which an application has been made on behalf of a public authority for payment of dividends out of the separate estate of a married woman for the expenses incurred in her maintenance as a lunatic in a pauper establishment. The Master in Lunacy of the Colony of Victoria, Australia, is, under the provisions of the Colonial Lunacy Acts of 1867 and 1869, entitled to collect and receive the estate of a lunatic in that colony. In the case of In re Smeaton's Will, which came before Sir J. Stuart on the 21st of March, 1870, on the petition of F. Wilkinson, of Melbourne, Master in Lunacy of the Colony of Victoria, and of Hugh Lewis Taylor, of London, manager of the Bank of Victoria, and attorney of F. Wilkinson, a sum of £119 18s. 11d., part of a sum of £989 19. 9d. New £3 per Cent. Annuities remaining to the credit of the account in the matter, so far as related to the clear residuary estate, was directed to be sold, and the money to arise by the sale, and the dividends as they should accrue due on the residue of the annuities during the life of William Charles Smeaton, were ordered to be paid to Hugh Lewis Taylor as the attorney of F. Wilkinson. In ordinary cases the expenses of maintaining a wife become, no doubt, a debt of the husband. [The VICE-CHANCELLOR :-The difficulty in the present case is, that the expenses incurred became a debt of the husband, and the Petitioner asks that it may be paid out of the wife's separate estate.] Mrs. Salmon was not placed in a lunatic asylum by her husband, but by legal authority. Debt can arise only on contract either express or implied; and where a wife is placed either in prison, or, as in Mrs. Salmon's case, in a lunatic asylum, there is no contract V.-C. W. 1871 In re BAKER'S TRUSTS. V.-C. W. 1871 In re BAKER'S TRUSTS. on the part of the husband, and he is not liable at law for the expenses incurred in her maintenance. That difficulty was recognised in the report for 1850 of the Poor Law Commissioners: Fry's Lunacy Acts (1); and after the report had been considered by the authorities, the 5th section of the statute 13 & 14 Vict. c. 101, was passed. By it guardians and overseers are empowered to recover the expenses of maintenance of a pauper lunatic wife from her husband by summary proceeding before the justices. [The VICE-CHANCELLOR :-Assuming that the section is applicable, does it not increase the difficulty? It says that the husband may be summoned to appear before the justices in reference to the maintenance of his wife, and that they may make an order upon him for the cost of her maintenance. The Petitioner asks me to direct payment to him of the separate estate of Mrs. Salmon, in order that he may apply it towards the discharge of what is primá facie her husband's debt.] Here the husband is quite unable to maintain his wife. There is no direct authority that touches this case. Cases have come before the Courts on applications by boards of guardians in this country, where the persons concerned and the property have been resident and situate; but here the persons concerned are in Australia. In none of those cases, however, has there been any attempt to deal with the separate estate of a married woman. In Peters v. Grote (2) a married woman, entitled to a fund in Court standing to an account in the joint names of her husband and herself, became of unsound mind, and was placed by her husband in a lunatic asylum. The Court allowed a part of the fund to be paid to the husband for the purpose of discharging the debt incurred on her account, and of the sum so received by him he paid part to the proprietor of the asylum, and applied the residue to his own use. The proprietor of the asylum being unable to obtain any further payment from the husband, a petition was presented by the wife's brother stating that she had no property except the fund in Court, and that no settlement was made on the marriage; and in accordance with the prayer of the petition, which had not been served on any one, the Court ordered a further (1) Pages 545, 546. (2) 7 Sim. 238. part of the fund to be sold, and the proceeds paid to the proprietor of the asylum in discharge of the debt due to him; and Mr. Shelford, in his book on the Law of Lunatics (1), gives a case of Re Evans (24th May, 1826), in which the dividends of a fund held in default of appointment in trust for the separate use of a married woman, without power of anticipation, were ordered to be paid to the husband, to be applied by him as committee in and towards her maintenance; and in March, 1828, it was further ordered that a rent-charge of £200 a year, also settled to the wife's separate use, should be paid to the husband. [He also cited Attorney-General v. Parnther (2), Nettleshipp v. Nettleshipp (3), Edwards v. Abrey (1), In re Law (5), In re Dodsworth's Trust (6), and Davies v. Davies (7); and submitted that the Court had power to make the order asked for as regarded the application of the accrued dividends towards the repayment of expenses for past maintenance; and asked for an order in respect of the future dividends. Mr. Renshaw, for the Respondent, the surviving trustee of the will, did not oppose the application. The VICE-CHANCELLOR :-On the authority of the case of Peters v. Grote (8) I will make the order asked for as regards the application of the accrued dividends to the cost of past maintenance; but before I make any order appropriating the future dividends for the cost of the future maintenance of the lunatic, I should wish the Colonial Acts to be further looked into; and the Petition must stand over for that purpose. Mr. Renshaw:-I have looked through the Colonial Act, intituled the Lunacy Statute (No. 309), which was passed by the Legislature of the Colony of Victoria on the 6th of September, 1867, "to consolidate and amend the law relating to lunatics;" and also the Act (No. cccxlii.) which was passed on the 31st of August, 1869, to amend "The Lunacy Statute," and it appears that by sect. 3 it (1) 2nd Ed. p. 204. (2) 3 Bro. C. C. 440, 444. (4) 2 Coop. C. P. 177. (5) 7 Jur. (N. S.) 410. V.-C. W. 1871 In re BAKER'S TRUSTS. V.-C. W. 1871 In re BAKER'S TRUSTS. was enacted that the 147th section of the Lunacy Statute, which limited the power of the Master in Lunacy, should be repealed; and in lieu thereof it was enacted "That the Master may and shall, out of the estate of any lunatic patient, pay such sum or sums for the maintenance of such patient, and for the maintenance of his wife or other near relative, and for the maintenance and education of his children, as to the Master shall seem expedient and reasonable." It appears to me, and I submit, that the Master in Lunacy of the Colony is in the position of a committee, and that as committee he stands in the place of the lunatic wife, and is entitled to be paid the future dividends. SIR JOHN WICKENS, V.C.: I think, looking at the language of the Colonial Lunacy Acts, that the Master in Lunacy of the Colony is entrusted with the powers of a committee of a lunatic's estate, and therefore I will order the future dividends to be paid to him as the person who will be accountable for their application; but I will not direct the application of them to be in any particular way. The order will be in these terms: Let the costs of the trustee of this application, including any costs properly incurred in communicating with the Petitioner, be paid out of the accrued dividends; let the residue be paid to the Petitioner; and let the future dividends on the fund in Court be paid to the Petitioner during the life of Sarah Salmon, or until further order. Solicitors: Messrs. Roy & Cartwright; Messrs. Satchell & Chapple, agents for Mr. Wittey, Colchester. |