174 N.E. 655 | NY | 1931
Submission of a controversy upon agreed facts under Civil Practice Act, section 546.
By a decree of the Court of Common Pleas of Dauphin county, Pennsylvania, plaintiff, a trust company incorporated under the laws of that State, was appointed committee of the property of Minnie Smith, an incompetent.
By an order of the Supreme Court of New York, the trust company was appointed ancillary committee of the property of the incompetent located in this State. Simultaneously with its appointment, the committee submitted a petition for leave to sell and convey an undivided interest in real property in Brooklyn. The petition being granted, a contract of sale followed. The defendant, the assignee of the purchaser, refused to accept the title after receiving the report of a title company refusing to insure it. The objection is that the appointment of a foreign trust company as committee of a lunatic is forbidden by the statute.
Civil Practice Act, section 1363, makes the following provision as to the appointment of an ancillary committee *285 of the estate of an incompetent: "Where the person alleged to be incompetent resides without the state, and a committee, curator or guardian of his property, by whatever name such officer may be designated, has been duly appointed pursuant to the laws of any other state, territory or country where he resides, the court, in its discretion, may make an order appointing the foreign committee, curator or guardian, the committee of all or of a particular portion of the property of the incompetent person, within the state, on his giving such security for the discharge of his trust as the court thinks proper."
This section is a re-enactment of Code of Civil Procedure, section 2326, which in its substance has been part of the statutory law of the State since 1880 (Laws of 1880, vol. 2, ch. 178, § 2326; Laws of 1898, ch. 294).
Until the adoption of the Code provision, the ruling of the courts had been that a committee would not be appointed by the courts of this State without an independent inquisition into the fact of lunacy, even though lunacy had already been adjudged in the foreign jurisdiction (Matter of Neally, 26 How. Pr. 402;Matter of Payn, 8 How. Pr. 220, 223; Matter of Perkins, 2 Johns. Ch. 124). Doubt was expressed whether the foreign committee would ever be appointed even after a new inquisition and a new finding of lunacy unless such committee was a resident (Matter of Neally, supra).
The purpose served by the enactment of section 2326 of the Code was thus the avoidance of the requirement that there be a second inquisition and the concession of power to dispense with the requirement of residence. The section had nothing to do, at least in the purpose of its enactment, with the definition of the powers of banking corporations.
In this state of the law, the Legislature enacted section
Among the powers thus excluded are those conferred upon domestic trust companies by section 185, subdivision 6, "to be appointed and to act under the order or appointment of any court of competent jurisdiction as trustee, guardian, receiver or committee of the estate of a lunatic, idiot, person of unsound mind or habitual drunkard."
We think the conclusion inescapable that section
Another provision of section
If section
The judgment of the Appellate Division should be reversed, and judgment directed in favor of the defendant in accordance with the stipulation, without costs in the Appellate Division or in this court.
POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; HUBBS, J., not sitting.
Judgment accordingly.