118 N.Y.S. 449 | N.Y. Sup. Ct. | 1909
The contention made in behalf of the defendants, that the removal of the incompetent, Brinckerhoff, about ten years ago, by the authorities of Bloomingdale Asylum, from Hew York city, where that institution theretofore had been located, to its present location in Westchester county, effected a change of his domicile, is untenable. The incompetent was removed, together with all the other inmates of the asylum, when the institution removed from Hew York city to Westchester county. The defendant, Ollive, the committee of the lunatic, did not request his removal. He merely acquiesced in the action of the asylum authorities. Brinckerhoff became insane after he attained his majority, and it is conceded that his domicile before and up to the time he was adjudged insane was in Hew York city. In the absence of controlling circumstances to the contrary, his domicile before insanity will be deemed to have continued during mental incompetency. 10 Am. & Eng. Encyc. of Law (2d ed.), 35. Defendants’ counsel argues that the committee had the right to change the domicile or residence of the lunatic committed to his care, and hence his consent to the removal of Brinckerhoff constituted a change of domicile of his ward. In Hatter of Lynch, 5 Paige 120, it was held that the committee alone may decide, “ subject, however, to the superintending control of the court, as to the proper place ” in which the incompetent person shall reside. Attention is directed to various cases in which the authority of the committee to control the residence of his ward is recognized. Hill v. Horton, 4 Dem. 88, and cases therein cited. It seems to me, however, that the authorities relied upon have no application to the facts before us. This is not a case where the incompetent person, with the sanction of the court, has been transferred to another county in the personal custody of the committee, or with a private
Judgment accordingly.