The New York Practice: A Treatise Upon Practice and Pleadings in ..., Volume 2

notice to the party.1 Due proof of the service of this notice should be made.

The ditty, power, &c., of the commissioners.

The commissioners pro hoc vice are a quasi court with many of it* powers aud duties. There is no statute requiring them to be sworn. They may summon witnesses and should issue a subpoena to compel their attendance. Should the witnesses fail to attend, the court, upon the facts being shown, will make an order compelling their attendance and will punish them for their disobedience.3 There must be at least twelve jurors, who must be sworn, when the commissioners should read the commission to them and inform them of their powers and duties severally. They also must administer the oath to each witness before he is examined. After the testimony is closed, one of the commissioners will charge the jury as to the law and may recapitulate the testimony. The jury are also to be instructed that twelve or more of their number must agree to make a verdict, and that if they do not thus agree, they report the fact to the commissioners.3

It is always well to instruct the jury fully as to the extent of the inquiries required by the commission and the precise issue in the case, and the form of the inquisition in case they find against the party. *

The inquisition.

On retiring for deliberation, the jury are furnished with a blank form of inquisition, in which they shall insert a response to each question directed by the commission to be found. If the jury find against the party proceeded against, they will fill up and sign the inquisition and deliver the same to the commissioners, who will annex it to the commission, sign, seal and deliver it to the attorney conducting the proceedings, that he may present the proceedings to the court.

The finding in the inquisition should be in the technical language of the statute; but this is not absolutely essential. 4

The usual practice is to file the inquisition with the clerk and to give notice thereof, with a notice of a motion to all parties appearing, for a confirmation of the inquisition.

A motion may also be made at the same time and place for an order appointing a committee. This motion is based upon a petition setting forth all the proceedings had in the matter, with a prayer for the appointment of a committee.

The petition should be verified. Notice of this motion must be given to all the heirs-at-law and next of kin of the party proceeded against, that they may propose themselves as committee.1

i • • * Selection and appointment of committee.

The matter of the appointment of a committee lies, to a great extent, in the discretion of the court. The court will appoint as committee that person, who, under all the circumstances, is most suitable to have the care and custody of the person and estate of the party, and who is willing to take upon himself the performance of the trust, and give the requisite security.

The chief objects sought in the selection of a committee are the comfort and welfare of the lunatic, and the profitable management of his estate.3

In determining the suitableness of a party to act as committee, the court will consult the wishes of the lunatic as far as possible.' The heirs-at-law and next of kin are presumptively entitled to act as committee; but they must be suitable persons, and give the requisite security, or the court will not appoint them.'1 All other things being equal, near relatives and persons connected with the family should be appointed the committee.5

The care of married persons, if lunatic, is usually given to their spouses.6 If the lunatic is a female, it is usual to appoint a female the committee.7 In the case of a lunatic mother, her daughter was appointed committee.8

It is discretionary with the court to order a reference, or not, on the appointment of a committee. If the property is small, and the evidence clear as to the qualifications, and

the next of kin join in the petition, it will appoint a committee without a reference.1

If the appointment of the persons proposed as committee be contested, or there be doubts as to the suitableness of the persons named as such, the court will refer the matter to a referee, to inquire and report who is a suitable and proper person to be appointed the committee; and in such cases it is usual, also, to insert in the order a provision requiring the referee to approve of the bond, in the sum named by the court, and the sureties offered by him. In cases where there is much property, it is well for the order to require the officer to report a proper allowance for the support of the lunatic.

The order of reference is executed by taking testimony in the usual way. Notice of the time and place must be given to the heirs and next of kin of the lunatic, and such other parties as have appeared in the proceedmgs, or the court has seen proper to name in the order. The referee must report the facts found by him, and his opinion thereon, and his report must be filed with the clerk of the court, whose duty it is to note the day of filing, and enter the same in the proper book. Notice of the filing should at once be given, and unless exceptions thereto are filed within eight days from the service of such notice, the report becomes absolute and stands confirmed.3 If exceptions are filed and served within such time, the matter may be brought to a hearing upon a case to be made at any special term thereafter, on the notice of any party interested.3 The party objecting to the report must, in his exceptions, point out the errors complained of, otherwise the part not excepted to will be taken as admitted.3

The court will not be entirely governed by the referee's report, but may direct him to review it, or may act independently of it.4 The court may appoint two committees, one for the person and one for the estate. In short, the court has the power, and will make any order necessary to secure the proper care and attention to the person of the lunatic, and the best management of his estate.5

Of the effects of the finding of an inquisition.

The finding of an inquisition is conclusive evidence of incapacity; and all contracts, gifts and devises, to take effect during their lifetime, made by idiots, lunatics, persons of unsound mind or habitual drunkards, after the actual finding of an inquisition, without permission of the court, and while the inquisition is in force, are absolutely void.1

Acts done before the issuing the commission and the finding of the inquisition, which are over-reached by the inquisition, are prima facie void.*

But the fact that a party is under a committee does not disqualify him from making a will. He can make a will if he has the requisite mental capacity, and this he may do without the suspension of the commission or leave of the court.

Where a party is under commission, he is prima facie incompetent; and to establish such a will, the proponent must, in addition to the statutory requirements, give sufficient evidence to remove the presumption of continued incapacity arising from an unrevoked commission.3

An inquisition is analogous to a proceeding in rem, and is conclusive on every person dealing with the party against whom an inquisition has been found,4 upon the principle that it is the duty of every person to ascertain whether those with whom he deals have the capacity to contract.

Waiver of a notice of protest by an habitual drunkard, after inquisition found, even when sober, was held void.' The fact of his being sober is immaterial. The inquisition is conclusive, and to go behind it would open the door to endless litigation and effectually defeat the object of the trust. The person, or property of one against whom an inquisition has been found, is in the care and custody of the court; and it is an irregularity, as well as a contempt of court, to proceed against either without first obtaining leave of court.6

The court, on application of the committee, will restrain all suits and proceedings against a party under an inquisilion commenced without its leave.1 The proper and only safe remedy of a creditor of a lunatic, after inquisition found, is to petition the court, appointing the committee, for relief, or for leave to bring an action, or, if the claim be disputed, for a reference to establish it.* But a judgment recovered against a lunatic after the appointment of a committee, is not void, or even erroneous; and the court will not interfere with it unless some fraud has been practiced, or the lunatic has a good defense to the action.3 If the judgment is inequitable, or without any beneficial consideration, or has been fraudulently obtained, the court will grant relief.4

Of the allowance for support, <fcc.

In ordinary cases, the court leaves the amount to be expended for the support of the lunatic and those members of his family for whom he is bound by law to provide, to the discretion of the committee. In the execution of this trust, the committee should deal with its ward in a generous manner. The interest of the lunatic, &c., is the primary consideration of the law. The amount to be expended by the committee should be determined by the estate, rank, family and former style of living of the lunatic, &c.

When the estate is of any considerable amount, the better practice is for the court to fix the amount of annual allowance for support. This should be done on the report of a referee; and the order which refers the matter to a referee to appoint a committee, may contain a provision that he report a proper amount of annual allowance for the lunatic and those whom he is bound by law to support, and the committee may petition the court for such an order at any time.

In determining the amount of allowance for support, the court will be governed solely by the amount of the estate and the comfort of the lunatic himself without regard to next of kin or expectants.5 This doctrine has been carried so far as to invest the whole estate of a lunatic in a government annuity for his life.' The allowance should be changed as circumstances warrant or require.