In re Christie

5 Paige Ch. 242 | New York Court of Chancery | 1835

The Chancellor.

There is no sufficient ground for setting aside the inquisition, the alleged irregularities upon the execution of the commission being satisfactorily denied or disproved. The only question, therefore, is as to the propriety of granting a feigned issue. There is reason to believe that this application, although in the name of the alleged lunatic, is substantially an application in behalf of the son-in-law whose deed is overreached, by the finding of the jury. Even in England, where the traverse of the inquisition is a matter of right, it is not usual to grant it until the chancellor, upon a private ■examination of the alleged lunatic, is satisfied that it is his wish to traverse, and that he is in a situation to present a petition for that purpose. (Shelf. on Lun. 118. . 1 Collin, on Lun. 172.) Here it is more important that a private examination should be had, as it is in (he discretion of the court to grant or refuse a feigned issue, where the application is made in the name of the alleged lunatic. * The certificate of the officer before whom this petition was sworn should also have been special. It should have stated that the officer had examined the petitioner, for the purpose of ascertaining the state of his mind and whether he was capable of understanding the nature and object of the petition, and that he was apparently of sound mind, and capable of understanding it. And, as the petitioner was blind, the officer should also have certified that the petition was carefully and correctly read over to him, in the presence of such officer, before he swore to the same.

In this case, as it appears that the alleged lunatic, in consequence of his age and other infirmities, cannot be brought before the court to be examined personally, I should not grant the traverse upon his application, without first having Mm examined privately, by one of the masters of this court. But as I am satisfied that this is substantially an application on the part of tile son-in-law, whose conveyance is overreached by the inquisition, and as the affidavits on his part show that it is a case of sufficient doubt to entitle him to ask for a feigned issue, I will direct such an issue, upon his filing a stipulation to be bound by the final decision thereon. This was done in the case of Roberts, (Buller's N. P. 217;) and Dr. Finney, who had obtained a conveyance of the lunatic’s estate, agreed7 to be bound by the traverse. In that case also the chancellor compelled the party, who. had joined in the traverse, to perform his agreement to be bound thereby. (See 4 Bro. C. C. 238, note.)

The appointment of a committee is tobe suspended until it is ascertained whether Dobbin consents to an issue, and to be bound by the result of the same. If he files such consent a double issue is to be framed, so as to ascertain whether the alleged lunatic was of unsound mind at the date of the deed, as well as at the time of the finding of the inquisition.