
    IN THE MATTER OF THOMAS LATHAM, GUARDIAN, &c.
    Before the Court will direct any of the property of a lunatic to be applied to the payment of his debts, it will set apart a sufficient fund for the maintenance of the lunatic, and his wife and infant children, if he has any. Nothing that has been advanced for the prior maintenance of the lunatic shall be chargeable on this fund.
    This was an appeal from certain interlocutory orders made in the course of the proceedings on this petition in the Court of Equity of Beaufort County, at the Fall Term, 1843, his Honor Judge Pearson presiding.
    The following are the facts of the case presented to this Court.
    Daniel Latham was duly found to be a lunatic. He had a wife and some children, and was deeply involved in debt. The Court appointed the petitioner, Thomas Latham, to be his committee. The said committee filed this petition, to have the real and personal estate of the lunatic sold, for the purpose of paying his debts, and for the purpose of maintaining him and his family. At spring term, 1841, of Beaufort Court of Equity, there was an order made, that the committee should sell the real and personal estate of the lunatic. The property was sold, and a report made by the committee to the next Court, when the report was set aside, and the clerk and master was ordered to make the said sales. At spring term, 1842, the case was continued. At spring term, 1S43, an order was made by the Court, at the instance of H. Wis-wall, a creditor, that the committee should himself report in full, as to all the property, which had, or might come to his hands, before the next term of the Court; and also to report as to all his expenditures and'his disbursements for the lunatic: and that the creditors of the lunatic, prove their debts before the master. And it was then further ordered, that the house and land belonging to it be sold by the master. At tall term, 1843, the master reported a sale, made by him, of the home house and plantation ; and this report was confirmed. And the master also reported on- the accounts of the committee, from the date of the appointment, up to that term ; including the sale of the personal property, under an order of the County Court, made at December term, 1840; and also, the amount of property sold under a former interlocutory decree, made in this cause. The master also reported the amount of debts due to the several creditors of the lunatic, and the balance of debts still due to the committeeand the master allowed, the said balance, to the committee, and also allowed him commissions, 2 1-2 per cent, on the receipts, and 5 per cent, on the disbursements. To this report of the master, two of the creditors of the lunatic, Wiswall and Winfield, excepted; first, because the committee paid other creditors their debts in full, after he know or had reason to believe that the lunatic was insolvent. They insist that he should pay all the creditors pro rata. And the Court sustained this exception, and ordered, that the account and report be re-committed to the master, so as to distribute the whole fund, pro rata, among the several creditors. This order was resisted by the committee, because he said, that his payments in full to the several creditors had been rightfully made before the filing of this petition. And, secondly, he insisted, that, if the creditors were to be paid, as directed in the said order, then he should be deemed a creditor. Also a motion was made for á proper allowance, out of the fund in Court, for the maintenance of the lunatic and his wife and infant children; and also for an allowance to the committee, for the previous maintenance of the lunatic and his wife and family. The Court was of the opinion, that any previous necessary maintenance of the lunatic, his wife and children, should be allowed to the committee. But, as against the claims of the creditors, the Court thought, that no prospective allowance for maintenance could be hereafter made. The Court overruled the exception as to commissions allowed to the committee. From the decision of the Court upon the exceptions, and also from the judgment of the Court, upon the motion for an order for maintenance prospectively for the lunatic and his family, the committee prayed an appeal, which was allowed by the Court. Wiswall and Win-field, two of the creditors of the lunatic, prayed an appeal from so much of this decree, as allows the committee of the lunatic, for sums expended for maintenance of the lunatic and his family heretofore, which appeal was allowed by the Court. The master reported the receipts by the committee of the lunatic $3,730 51, and that his disbursements were $4,360 07. The committee was allowed for commissions $259 32, leaving a balance due the committee from the estate of the lunatic, $886 86. The master further reported, that there was now in his office the sum of $942 14 unexpended, belonging to the lunatic, being the proceeds of the real' estate sold in this cause by the master. And he further reported $3,160 40, unsatisfied claims, now outstanding against the lunatic.
    No counsel in this Court for the petitioner.
    
      J. H. Bryan, for the creditors.
   Daniel, J.

Before we give any opinion’ upon the exceptions taken by the creditors to the master’s report, we must first see that there is a balance of estate on hand, sufficient to maintain the lunatic during his lunacy, and his wife and infant children. Shelford on Lunatics, 356. In England, the grant, under the great seal, of the custody of the person and estate of the lunatic, contains, among other things, an authority to the bailiff or committee, to take the property and effects of the lunatic, for his profit and advantage ; “ and for the maintenance, sustenance and support of the said A. B. and his family, (if he has any, or in time to come may have).” Shelford, 635. In England, it has been questioned, whether the seizure of the estate of a lunatic by the Kingfirst, for the maintenance of him and his family, and secondly, for the benefit of his creditors, as the Court of Chancery might from time to time make orders for the same, was not solely by force of the statute, De prerogativa regis, 17 Ed. 2d. ch. 10. (See the translation into English of that statute, Shelford, 498.) But the better opinion is, that the said statute was not introductive of any new right, but was only declaratory of the common law. Beverly’s Case, 4 Steph. 126, 127, 2 Ves. Jr. 71, Bac. Abr. title Idiots and Lunatics, C., Shelford, 12. And we take it, that the King, as parens patries, by the common law, had the protection of all his subjects, and that, in a more particular manner, he is to take care of all those who, by reason of their imbecility and want of understanding, are incapable to taking care of themselves. Bac. Abr. Idiots and Lun. C. All the lunatic’s estate has been converted into money, and only the sum of $942 14 is now within the reach of this Court. We think that this fund must be retained by the committee, not to pay his balance or the debts of any of the creditors, but for the purpose of maintaining the lunatic and his wife and infant children. That the Court must reserve a sufficient maintenance for the lunatic, before making an order for payment of debts, or allowing to the committee sums already applied by him to that purpose, is clear from the nature of the jurisdiction in lunacy, as well as from the decisions. In Ex parte Hastings, 14 Ves. 182, Lord Eldojst said, he could not pay a lunatic’s debts and leave him destitute, but must reserve a sufficient maintenance for him ; and in Tally v. Tally, 2 D. & B. Eq. 385, that is cited with approbation by this Court. With respect to the maintenance of the wife, and such of the children as, from tenderness of age or other causes, are dependent upon the parent, this Court, in Brooks v. Brooks, 2 D. & B. Eq. 389, gave the opinion, that, though it was not mentioned in our statute, it was a proper charge upon the lunatic’s estate — it not preventing the maintenance of the lunatic himself — upon the ground, that the lunatic himself was chargeable with it; and, among the demands on his estate, to be provided for by order of the Court, none can be more meritorious, certainly, and no disposition of the lunatic’s estate is so likely to promote the comfort and due care of the lunatic himself.

These being appeals from interlocutory orders on the petition, this Court can do no more than decide the particular points sent here ; and therefore, we refrain from saying more than this: that, for the present, the whole of the sum in the Court of Equity should be declared a fund necessary for the maintenance of the lunatic and his wife and infant children, and be ordered to be put out at interest by the committee, to answer such orders as may be made by the Court, from time to time, for those purposes ; referring it to the master to inquire of the proper allowance for those purposes, according to the fund and the state of the family. We leave it to the Judge below or the County Court, whichever be the proper tribunal, now or in future, as they shall be moved, to deal with the committee in respect to the estate already disbursed by him.

The Court being of this .opinion, it is unnecessary now to decide the other points raised in the cause.

The costs in this Court must be paid equally by. the parties.

Per Curiam.

Decreed accordingly.  