473 HARVARD LAW REVIEW. THE SURPLUS INCOME OF A LUNATIC. APART of the ancient jurisdiction of the Chancellor con- cerns the care of the persons and estates of persons of unsound mind.^ In the course of the exercise of this parental 1 Whether it existed at common law or no is perhaps a purely academic question. It appears to have been first definitely formulated in the Statute of Prerogatives, 17 E. II. chs. ix. and x. Chapter ix. of that statute gave the king the beneficial interest in the land of idiots, limited only by the duty of finding them " their necessaries." For a collection of the authorities on this point, see Pope's Law of Lunacy, p. 20, note (8) ; also Collinson on Lunacy, vol. i. p. 94. Chapter x. is more important, as containing a suggestion of the lines upon which the law in relation to both classes — lunatics and idiots — was at a later period laid down by the Lord Chancellors. It has been sug- gested to us that lunacy jurisdiction being prerogative rather than equitable, may not exist except by statute in some of the States ; and that, the statute not conferring the special jurisdiction to be discussed in this article, difficulty might therefore be found in its exercise. In Kentucky (Nailor v. Nailor, 4 Dana, 339) ; Maryland (Corrie's case, 2 Bland Ch. 467) ; North Carolina (Latham v. Wiswell, 2 Ired. Eq. 294) ; Illinois (Dodge V. Cole, 97 111. 33S) ; and Indiana (McCord v. Ochiltree, 8 Blackf. 15), it has been held that full lunacy jurisdiction exists in American Chancery Courts. Cf. in New York Brashen v. Van Cortlandt, 2 Johns. Ch. 264, 402; contra, Oakley v. Long, 10 Humph. (Tenn.) 254. Where all jurisdictions are merged one would imagine that this jurisdiction could be taken without difficulty, on the ground stated in the cases above. In Massachusetts, where the lunacy jurisdiction is in the Probate Courts (P. S. ch. 139, especially §§ 29-34), the statute which would regulate this matter (§§3off.) is a mere paraphrase of the 17 Edw. II. ch. x., (i Pick. Statutes, 381,) which gives the king this jurisdiction; and although arguments against such jurisdiction might be drawn from subsequent provisions of the Massachusetts Statute, §§ 33, 34, they would not be in the least as strong as the provision of 17 Edw. IL ch. x., that "the Residue beside their Sustentation shall be kept to their use," which is omitted in Massachusetts. In this connection the forcible remarks of Holmes, J., in Minot v. Baker, 147 Mass. 348, where a similar objection was raised, are in point. "The objections ... to the juris- diction are purely historical . . . that although in England there was a remedy exist- ing alongside of the ordinary jurisdiction of the Chancellor, and practically reaching similar results, yet since this court has not the powers exercised by the sign manual, a will must be defeated and a trust must fail. ... If it is possible to avoid such a result it is desirable to do so." So in lunacy jurisdiction, it is desirable, if possible, to avoid a result which will leave the strongest moral duties unperformed. Fitzherbert's definition of the term " idiot," or " idiota," as paraphrased by Stauneforde [Pr. Reg. 34], is quaint enough to be worth inserting here : " And the maner of the tryall of hym to bee a foole naturall appeares in the sayd Natura Braiium, fol. 233 ; that is to say, yf hee cannot tell to twenty pence, or tell his age, or who was his father and mother, or such lyke thinges whereby it may appeare that he hath no kynd of under- standinge in that that is eyther for his profite or dammage. But if hee bee learned and apt to learne then is hee no ideot, as Maister Fitzherbert there thinkes, and Grene sayeth in Saver de Default, that if hee bee able to beegette eyther sonne or daughter hee is no foole naturall." Grene, later C. J. of K. B., is the " Seigneur Grene, le Sage Jus- tire " cited with respect by Thirning, C. J. (Bellewe, 142).
