110 N.Y.S. 1004 | N.Y. App. Div. | 1908
This is an appeal from an order of the Special Term directing that a commission de lunático inquirendo issue to inquire into the mental capacity of the appellant John Masterson Burke. The proceeding is prosecuted under the Code of Civil Procedure (§ 2320 et seq.), the petitioner being a distant relative of the appellant, and not even one of his next of kin, although she is one of fourteen heirs at law. She is a non-resident of the State and does not appear to have ever enjoyed any close intimacy with the appellant, except that some ten years ago he extended her aid in taking a normal course to improve her position as a teacher. Under section 2323 any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent, and the petitioner in this matter was, therefore, entitled to present her petition as she has done. By section 2327 it is made the duty of the court to which such a petition has been presented to •either issue a commission or direct the questions of fact to be tried before a jury if it presumptively appears, to the satisfaction of the court from the petition and the proofs accompanying it, that the case is one of a person incompetent to manage himself or his affairs and that a committee ought, in the exercise of a sound discretion, to be appointed. It is to be observed that in order to justify the issuance of a commission two things must presumptively appear to the satisfaction of the court, first, that the person proceeded against is incompetent, and, second, that a committee ought, in the exercise of a sound discretion, to be appointed. It is not sufficient that incompetency alone is established, for it may well be, even where incompetency exists, that the situation and surroundings of the incompetent are such that no necessity exists for the appoint
We have presented,-therefore, the case of an old man who has so disposed of his property as to assure himself that it will be devoted
The order appealed from must, therefore, be reversed, but, since the petitioner was probably actuated by no improper motive, without costs.
Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.
Order reversed and proceeding dismissed, without costs.