V.-C. M. 1872 In re GARNIER. Garnier, on the ground that it was not desirable that the money now in Court should be taken out of the control of the Court and paid over to a French committee, to be placed on the security of French Rentes; that there was a further sum of £120 per annum, derived from property belonging to the lunatic, which was in the hands of Messrs. Childs, the bankers, and which, at the direction of the relatives of Charles Garnier, had been regularly paid to Dr. Semelaigne for his benefit, and this sum, in addition to that received by the Petitioner, was amply sufficient for the comforts of the lunatic in the position in which he was placed. Mr. Glasse, Q.C., and Mr. Begg, for the Petitioner: This money has been paid into Court under the Trustees Relief Act (10 & 11 Vict. c. 96). The lunatic is absolutely entitled to it, and the Petitioner, who is the legally constituted curator bonis according to the law of France, where the lunatic is domiciled, is now entitled to have the money paid out to him. The Court has no power to refuse the application. The estate of the lunatic is vested in the Petitioner, just as it would be in the committee of a lunatic in this country, or in the assignee of a bankrupt. He is in the position of the legal personal representative, and the Court is bound, under the Trustees Relief Act, to pay the whole of the fund over to the Petitioner, who is answerable to the French Court for the proper application of the fund. In Scott v. Bentley (1) it was decided by the present Lord Chancellor, when Vice-Chancellor, that the right to sue for the property of a lunatic in Scotland was vested in the curator bonis appointed according to the law of that country, and that he could give a good discharge for the money; and this case is precisely the same. The curator bonis appointed by the French Court has the same power to sue, and the same absolute control over the fund, as a Scotch curator would have in a Scotch lunacy. The amount of the fund has nothing to do with the question; the curator is responsible only to the French Court. To that Court he has given security for the due performance of his office, and this Court can exercise no discretion, nor give any directions as to the application of the money. Hessing v. Sutherland (2) was a case in which the Lords Justices (2) 25 L. J. (Ch.) 687. (1) 1 K. & J. 281. ordered the transfer of a fund standing in the names of the trustees to the curator bonis appointed in Scotland of an English lunatic; and in Newton v. Manning (1), the Lord Chancellor said that if the law of France warranted the Petitioner in dealing with the corpus of her husband's property in the manner proposed, she had only to arm herself with the authority of the foreign jurisdiction, and the money would be paid out to her as any other sum of money in Court would be paid out to a party shewing a title to it. Here the Petitioner comes with the authority of the French Court, and has shewn a title to receive the money, which is all that is requisite for him to do. In Mackie v. Darling (2) it was held that a curator bonis and factor loco tutoris of Scotch infants was not bound to pay into Court assets belonging to the infants, receivable under an English will of which the curator was administrator, and which was in the course of administration by the Court; and in Re Elias (3) an order was made, upon the application of a curator of a lunatic resident in Holland, for the transfer to him of the corpus of a fund in England, to which the lunatic was entitled. We have shewn our title to this fund, and are entitled to the order we ask. Mr. Cotton Q.C., and Mr. Bevir, for the relations of the lunatic: The Petitioner is not entitled to this fund as a matter of right. It is true that he is the duly appointed curator bonis of the lunatic in France, and we do not question his right to give a discharge for the money paid to him; but it is a matter for the discretion of the Court whether the corpus of the fund should be paid out to him. If this were a question arising within the jurisdiction in lunacy, the Court would have power to inquire as to the amount which was required for the support of the lunatic. This was decided by the Lord Chancellor in Re Stark (4), where, upon an application by the curator bonis of a Scotch lunatic for the transfer of stock standing in the lunatic's name in the Bank of England, the Lord Chancellor was not satisfied that the security given by the curator in Scotland was sufficient, and considered that it was a matter of discretion to refuse or accede to the application. (3) 3 Mac. & G. 234. (4) 2 Ibid. 174. (1) 1 Mac. & G. 362. V.-C. M. 1872 6 In re GARNIER. V.-C. M. 1872 In re GARNIER. So in Re Morgan (1) it was held that the Act of 1 Will. 4, c. 65, s. 34, did not render it imperative on the Lord Chancellor, upon the application of a curator bonis of a lunatic appointed by the Court of Sessions in Scotland, to order a transfer of stock standing in the lunatic's name in the Bank of England into the name of the curator. The Chancellor there ordered payment of the dividends only, and refused a transfer of the corpus of the fund. Re Sargazurietta (2) is a similar case; for there, upon a petition under the statute 56 Geo. 3, c. 60, for the re-transfer to the committee of a lunatic of a sum of money from the Commissioners for the Reduction of the National Debt into the name of the curator of a person found lunatic at Genoa, the Lord Chancellor directed the stock to be transferred to the Accountant General, and the dividends only to be paid to the Petitioner. All that the Court has to do in lunacy is to pay so much of the dividends of a fund as may be required for the support of the lunatic; and this is a question for the discretion of the Court. The case of Scott v. Bentley (3) only decided the right of a curator appointed in Scotland to sue and give discharges. This we do not deny. Newton v. Manning (4) had reference to the amount of security given by the curator. In Hessing v. Sutherland (5) no objection was made to the transfer of a fund to the curator, but the trustee required the indemnity of the Court for the purpose. In Mackie v. Darling (6) a curator bonis of Scotch infants was held not bound to pay into Court assets belonging to the infants receivable under an English will, of which the curator was administrator, and which was in course of administration by the Court; but that is a very different case. In bankruptcy the same principle is acted upon, and it is not imperative upon the Court to pay out to the assignee more than is required for the debts. It is for this Court to decide what shall be done with the surplus after payment of debts. This was decided in Cook v. Sturgis (7) and In re Dyson (8). In the Trustees Relief Act, under which the Court is now called (1) 1 H. & T. 212. (5) 25 L. J. (Ch.) 687. (3) 1 K. & J. 281. (4) 1 Mac. & G. 362. (8) 29 L. J. (Q.B.) 68. upon to act, it is expressly stated that such order shall be made as to the Court shall seem fit. There is a discretion, therefore, vested in the Judge as to the terms and the amount of payment; and it is not simply because a Petitioner shews that the fund is vested in him, as trustee, for a particular purpose, that he is entitled to have the whole corpus paid out to him as a matter of right. The evidence in this case shews that the lunatic is sufficiently well provided with all the necessaries and comforts that his situation requires. It is alleged that the income might be increased by the principal being placed in the French Rentes. This might also be done by the Court sanctioning the investment of the fund in more remunerative securities; but no necessity for such a course is proved on behalf of the curator, and he has given no good reasons for removing the fund from the control of this Court, which the relations of the lunatic consider to be a safer and more effectual protection than placing it in the hands of the official curator appointed by the French Court, particularly as it appears that he is not called upon to give security for the amount which he claims a right to the possession of. The security which he gave to the French Court was a general guarantee for right conduct in his office, and not a guarantee applicable to this particular matter. Mr. Glasse, in reply, cited Phillips on Lunacy (1) and Thorne v. Watkins (2). SIR R. MALINS, V.C.: This is a Petition to take a sum of £939 11s. 1d. Consols out of Court, that sum of Consols being the absolute property of Charles Garnier. The circumstances are peculiar, and the Petition raises a question of so much importance relating to the estate of a lunatic (though not so found by inquisition in this country, and therefore not subject to the jurisdiction in Lunacy of the Courts of this country) that I was very desirous at first that the course should be adopted of making the application to the jurisdiction in Lunacy-that is, the Lords Justices-rather than have the matter argued before me; and I certainly think I should have (1) Page 410. (2) 2 Ves. Sen. 35. V.-C. M. 1872 In re GARNIER V.-C. M. 1872 In re GARNIER. insisted upon that course if I had been aware that the same view had occurred to the Master of the Rolls in the case of Hessing v. Sutherland (1), and that the Lords Justices did take that case. But as the question has been fully argued before me, and I have formed a very distinct opinion upon it, I think it is better that I should decide it. 4 The point which arises on this Petition is this: Mr. Charles Garnier, being a resident in France (he was not at the time domiciled in France, though now he may be considered as a lunatic there domiciled), became of unsound mind. Before the tribunals of that country the necessary and proper steps were taken for establishing the lunacy, and putting his person and his estate under proper care, much as it would have been in this country; and the present Petitioner, M. Ravant, is the person appointed curator, and has vested in him the estate of the lunatic. This sum of £939 11s. 1d., to which the lunatic became entitled upon the death of a relative, has now been paid into Court by his personal representative. The curator petitions to take the money out of Court. There is also, it appears, a considerable amount of property belonging to the lunatic in England, some £3000 or £4000, which is in the hands of Messrs. Child & Co., the bankers, who, under the authority of the relatives of the lunatic, the brother and sister-near relatives-have from time to time sent the dividends of the stock in their hands (Dutch bonds) for the maintenance of the lunatic. The curator claims by this Petition to be the complete representative of the estate of the lunatic, and in him is vested, as he says, the right to take possession of all his property, to sue for all his rights, to maintain actions on behalf of his estate, and, in fact, in every respect, in the most complete manner, to represent that estate, and to take possession of every part of it whatever. The first part of the argument addressed to me on behalf of the Petitioner was as to a point upon which I do not feel the slightest doubt. I have no doubt that this curator in France has completely vested in him the whole estate of the lunatic, and that he is entitled to sue on his behalf, and to ask this Court to hand out to him, as the representative of the lunatic in whom the property is (1) 25 L. J. (Ch.) 687. |