ABREY. had a power very like that of the Lord Chancellor sitting 1846. in Lunacy. That he should therefore order that the sum EDWARDS v. found by the Master proper to be allowed for the future maintenance of the wife, should be paid to the husband out of her separate income, arising from the stock standing to the credit of the cause, he not being of ability to maintain her. With regard to the surplus dividends, exceeding the 701. a year, which the Master had reported was fit and proper to be allowed to the husband for the maintenance of his wife-no doubt if the wife were of sound mind and living with her husband, she would apply the entire dividends for the common benefit of herself and husband. Could the Court do that for her? Without determining whether in general there was ground to permit a husband to receive that part of the separate income of the wife, whilst in a state of lunacy, which was not required for her maintenance and support, he nevertheless, thought that in the circumstances of the case then before him-the embarrassment which the past maintenance of the wife had occasioned to the husband,there was a ground for allowing him to receive the surplus dividends. He should therefore allow the husband -he not being of ability to maintain his wife-to receive that part of the income of her separate property, which was not required for her maintenance, until the money advanced by him for past maintenance was repaid. That it was not necessary now to consider whether there could be any appropriation of the surplus dividends, not wanted for the maintenance of the wife, after the husband's debt was liquidated. But it would not be going too far if such appropriation were directed, until the payment of the debt. That the process of repayment would indeed be slow. He could however, do no more. That the Master had reported that he was of opinion that the husband ought to enter into his own recognizance, duly to apply the sum allowed for the maintenance of the wife. That this was unnecessary. That if a commission of lunacy were taken out, and the husband were appointed committee of the person of the wife, 1846. EDWARDS. ABREY. no security would be required from him for the due Thursday, 30th July, 1846. L. C.-Between Vawn Edwards, plaintiff, Daniel Abrey and Maria his wife, defendants. Whereas the above-named Daniel Abrey for himself, and as guardian of the above-named defendant Maria Abrey his wife, a person of unsound mind, did on the 22nd of July instant, prefer his petition unto the Right Honourable the Lord High Chancellor of Great Britain, setting forth as therein is set forth, and praying, &c. -Whereupon all parties concerned were ordered to attend his Lordship on the matter of the said petition, and counsel for the petitioner the defendant, and for the plaintiff, this day attending accordingly, upon hearing the said petition, the decree dated the 13th day of December, 1845, the Master's report, dated the 4th day of July, 1846-an order dated the 16th day of July, 1846, confirming the said report (6); and the Accountant-General's certificate read, and what was alleged by the counsel for the petitioner the defendant, and for the plaintiff. His Lordship doth order that it be referred to the Taxing Master of this Court, to whom the taxation of costs in this cause stands referred, to tax the costs of all parties of this suit since the last taxation, and of this application and incident thereto, as between solicitor and client: and it is ordered that so much of the 13567. 18. 4d. Reduced Annuities standing in the name of the Accountant-General of this Court in trust in this cause, as with the sum of 45l. 198. 3d. cash in the Bank, on the (a) It will be seen that the decree and order directed that the Master should report, upon what security the future allowance for the wife's maintenance ought to be paid. This part of the decree and order was probably founded on the language of Lord Eldon in Brodie v. Barry. There in one place it is said that the Master was to inquire what security should be taken for the due application of the fund [dividends] to be advanced. In another place, too, in which it is Isaid that there was to be an inquiry whether any of the separate maintenance should be applied (b) SIR JOHN LEACH.-The Inman v. confirmation of the Master's Re- Gardner. The con port is, in general, conclusive as to firmation of facts found, but not as to inferences drawn from, and recommendations founded upon, such facts. 1846. credit of this cause (a), will raise such costs, and also the sums of 611. 3s. 6d., and 617. 13s. 2d., and 317. 188. 11d., making EDWARDS V. together the sum of 154l. 158. 7d., and being the amount ABREY. of costs already paid under the said decree, and also for legacy duty (6), be sold with the privity of the said Accountant-General : and out of the money arising by the said sale, together with the said cash, it is ordered that the costs be paid. And it is ordered that the residue thereof (to be verified by affidavit) be paid to the petitioner the defendant Daniel Abrey, in discharge of so much of the sum of 413l. 8s. 6d., found due to him by the said report, dated the 6th day of July, 1846: and out of the interest and dividends from time to time to accrue on the residue of the said Reduced Annuities after such sale, and also on the 18007. Bank £3 per Cent. Annuities standing in the name of the said Accountant-General in trust in this cause, it is ordered that 701. a year be paid by half-yearly payments to the defendant Daniel Abrey, if sufficient for that purpose: but if not then so far as the same will extend-for the maintenance and support of the defendant Maria, his wife, the first payment thereof to be made on the 18th day of August next: and it is ordered that the residue of such interest and dividends be paid to the said defendant Daniel Abrey, such payments to be continued until such payments together with the said sum of 154l. 15s. 7d., amount to the sum of 4137. 8s. 6d. Reg. Lib. A. 1845, fol. 2158. In Nettleshipp v. Nettleshipp, 10 Sim. 236, the wife was entitled for life under a settlement made on the marriage with her first husband the testator in the cause, to an annuity of 4007., and 1087. dividends of stock: and she was also entitled for life under the testator her first husband's will, to an annuity of 100%. to her separate use. After her second marriage she became of unsound mind [but no commission of lunacy had been issued]. (a) Supposing this cash to have arisen from dividends, the order does not appear to have been drawn up in strict conformity with the principle of the judgment. If the cash arose from dividends, it ought not to have been applied in part payment of costs and legacy duty. The whole of such costs and legacy duty were to come out of the corpus of the stock. The cash ought at once to have been paid to the petitioner the defendant Daniel (b) If these sums were the total Annuities. See before, page 183. 1846. EDWARDS V. Peters v. Grote. V. C. January, 1835. [See 7, Simons, 238.] of a woman, sound mind, having placed On the hearing of the cause, it was submitted that the whole of her income, including the annuity of 1007. for her separate use, ought to be paid to her husband. The Vice-Chancellor ordered the annuity of 4007., and the 1087. dividends of stock to be paid to the husband, but directed that the arrears and future payments of the annuity of 1007. should be carried to the wife's separate account and accumulated. On a subsequent day, the application with respect to the annuity of 1007. was renewed upon an affidavit of the husband stating the details of the expenses attending the maintenance of the lunatic his wife, and that the 4007. annuity, and the 1087. dividends of stock were not sufficient to defray such expenses; and suggesting that he might be unable to pay the annual sums chargeable upon him on his wife's account. The Vice-Chancellor said, that at any rate before he could make any order as to the annuity of 1007., he must have a more positive affidavit from the husband as to his own means. Nettleshipp v. Nettleshipp, was not cited in Edwards v. Abrey. The student will note that the principle of the two decisions is identical. Friday, 16th January, 1835, V. C.-John Godfrey Peters, and Frances his wife, formerly Frances Read, Spinster, and Godfrey Joseph Peters, and Charles Henry Peters, infants, by John Godfrey Peters, their father and next friend, plaintiffs; George Grote, George West, and Louisa his wife, Thomas [The husband Backhouse Revell and others, defendants. Whereas the defendwho was of un- ant, the Reverend Thomas Backhouse Revell, clerk, did on the 10th day of December last, prefer his petition unto the Right Honourable the Lord High Chancellor of Great Britain, setting forth as therein set forth, and praying that his Lordship might be pleased to declare that the defendant Louisa West, the keeper of the wife of the defendant George West, is absolutely entitled the asylum beto the sum of 15157. 9s. 4d. Bank £3 per Cent. Annuities, ing unable to procure any and the sum of 221. 148. 8d, cash, now remaining to the credit payment from of this cause, to the account to the defendants George West, him] Order made, upon the and Louisa his wife, and to the future dividends to arise from petition of [the the said Bank Annuities; and that so much of the said her in a lunatic asylum, and afterwards gone to Jamaica, and that the amount wife's brother] 15157. 9s. 4d. Bank £3 per Cent. Annuities, as, together with any cash on the credit of this cause the account aforesaid, due to such 1846. EDWARDS v. will produce the sum of 5547. 11s. 5d. cash, and the costs thereinafter prayed for might be sold; and that out of the same the sum of 554l. 11s. 5d., now due and owing to William ABREY. Wastell in the petition named, in respect of the board, main- Peters v. Grole. tenance, care and keep of the said Louisa West, as in the said petition mentioned, might be paid to the said William Wastell; and that it might be referred to the Master, to whom this cause stands referred, to tax the costs of and occasioned by this application and incident thereto, and of all subsequent proceedings to be had thereon, as between solicitor and client; and that such costs when taxed might be paid out of the residue of the moneys to arise by the sale of the said Bank Annuities, after the aforesaid payment thereout to the said William Wastell. Whereupon all parties concerned were ordered to attend his Lordship on the matter of the said petition, and counsel for the petitioner this day attending accordingly, upon hearing the said petition, &c: and an affidavit of William Wastell, sworn this day, and the Accountant-General's certificate read, and what was alleged by the counsel for the petitioner-this Court doth order that it be referred to the Master, to whom this cause stands referred, to tax the costs of and occasioned by this application, and incident thereto, and of all subsequent proceedings to be had hereon, as between solicitor and client: and it is ordered that so much of the 15157. 98. 4d. Bank £3 per Cent. Annuities, standing in the name of the AccountantGeneral in trust in this cause, the account of the defendant George West, and Louisa his wife, as with the sum of 221. 14s. 8d. cash in the Bank, placed to the credit of this cause, the like account, will produce the sum of 554l. 118. 5d. cash, and the said costs when taxed, be sold: and out of the same it is ordered that the said sum of 554l. 11s. 5d., so due and owing to William Wastell, in respect of the board, maintenance, care and keep of Louisa West, as in the petition mentioned, be paid to the said William Wastell, &c.-Reg. Lib. B. 1834, fol. 221. The above is the order in Peters v. Grote, 7 Sim. 238. The facts stated in the note, which is in the margin of the order printed above, are taken from the report. The report also states that in Jamaica the husband held a lucrative appointment under government. The propriety of the order printed above is very questionable. It is true, as the student will probably have noticed, that in VOL. II. The propriety of this order is very questionable. |