The Express.
London, England, 1853-07-05 00:00:00

Lam iintelltgenct.

EQUITY COURTS.—YEsTaBoAr.
barons Vtee-rtssecauua 110115111.121 r.
AD .\Y3 v. SWITSI.—INFANCY.—ALLIOID Lcsrace.
This bill was tiled by the two surviving trustees of the
will of John Eastman, kr the purpoe of obtaining the opi-
nion of the court at to the disposal of a portion of the pro-
perty under the will, which was given to a person named
Frederick Smyth when lie should attain the age of 21, as
tenant in tail. Affidavits had been filed to show that
Frederick Smyth, who would attain the age of 21 during
the present month, had been of unsound mind ever since
his itfancy—that he wan of weak intellect, and incapable of
managing his affairs. He had lately been married, through
the contrivance of some of his family, to a young woman,
and it was alleged that in his state of mind such marriage
ought never to have been permitted. The case now came
on upon motion fora decree under the 16th section of the
new Chancery Act, for the purpose of obtaining a reference
to chambers, to ascertain whether Frederick Smyth was or
war not of unsound mind and incapable of managing his
property.
Mr. Kerslake, in support of the:motion, submitted that
no one could doubt upon the affidavits filed that this
young man was of weak intellect. The only question
was whether the small property to which he was entitled,
amounting to about 681. per annum, was to be reduced by a
commission of lunacy, the cost of which would be from 1201.
to 2001., or whether the court could Nave that expense by
having an enquiry in chambers, and ascertaining for itself
the real state of his mind. These proceedings were takes
by the trustees for their own safety, and for the benefit of
the property. Several authorities were cited to prove that
the court had power to take this course.
Mr. Willcock and Mr. Heaven urged that the court had
no power to make the order asked, and affidavits were read
to show that Frederick Smyth, although not of strong
mind, was still capable of transacting business and of taking
care of his property.
The Vice-Chancellor said he did not think that the au-
thorities cited went so far as to enable the court when there
was a dispute as to the fact of unsoundness of mind to take
upon itself to decide the question. He admittdd that the
evidence was very strong as to the incapacity of Frederick
Smyth, to manage the property himself, and he clearly saw
the difficulty in which the trustees were placed, but the
question here was whether the court could upon motion
make the order for a reference to chambers, to inquire into
his state of mind. This important fact must be taken int,
consideration, namely, that if he were to be found of un-
sound mind then his marriage would be void, and the
children, if may, would be illegitimate. This fact would
necessarily be involved in the inquiry, although if he were
now to direct that inquiry it would not be binding so as to
determine the validity of the marriage. The section of the
new act under which this motion was made gave
the court a discretion to grant or refuse it,
and under the circumstances he considered that he
ought not to make the reference. He would give
no opin ion as to what course the parties ought to adopt,
but if ever the cause was brought to a hearing, he should
then have to determine whether the decree oneht to be
made, or whether the bill should be dismissed. He should
at present decline to make any order upon the motion.