In re Salisbury

3 Johns. Ch. 347, 1818 N.Y. LEXIS 180, 1818 N.Y. Misc. LEXIS 11

• Court: New York Court of Chancery
• Decided: March 9, 1818
• Status: Published

Opinion

The Chancellor.

It is settled that the property of a lunatic may be converted from real into personal, when it shall appear to be for the interest' of the lunatic, without regard to the contingent interests of the real and personal representatives. The governing principle in the managment of the estate, is the lunatic’s interest, not that of those who may have eventual rights of succession. The statute of 17 E. 2. (and which we have re-enacted,) directing that the estate should not be “ wasted or desh'oyed,” meant injurious waste or destruction. The words of the English statute are, sine vasto et destructions. There may be cases as Lord Rosslyn, observed, in which to cut timber on the estate would be no waste. In the case ex parte Bromfield, (1 Vesey, jun. 453.) timber of the lunatic’s estate was cut by order of the court, on the Master’s report, that it would be for his benefit. (See the opinion of Ch. J. Be Grey, cited in 2 Vesey, jun. 75. note, and the opinion of Lord Thurlow, in the case of Bromfield: see, also, Oxenden v. Compton, 2 Vesey, jun. 69. in which Lord Rosslyn, considers this subject very much at large.)

So, likewise, the court may authorise a change of the property of infants from real into personal, and from personal into real, when it is manifestly for the infant’s benefit. (Notes to the Earl of Winchelsea v. Norcliff, 1 Vern. 483. Lord Hardwicke, in Amb. 419.)

In the present case, I am perfectly satisfied, that the timber had better be converted into money, than left standing. The lunatic has been afflicted for a long time. She is not advanced beyond the middle stage of life, and the timber may grow again fit for use before she dies. The money will be more productive than the timber left upon the land. The case has peculiar circumstances : I shall, therefore, grant the prayer of the petition.

Order accordingly.