In re Cook

| N.Y. Sup. Ct. | Jul 6, 1889

Landon, J.

This case is in some of its features similar to In re Demelt, 27 Hun, 480. The petitioner did not prove that notice of the execution of the commission had been served upon Christopher Pox, a grandson, and one of the next of kin of the alleged lunatic, pursuant to the order directing such execution. Hotice was served upon the appellant, which was of no avail to her, because she misread the date of the hearing. Christopher Fox himself lived near his grandmother and the place where the commission was executed, and no affidavit is presented showing that he complains of the proceedings, or takes any interest in them. The case cited is to the effect that the jurisdiction of the county judge does not depend upon notice given to all of the next of kin; and, in the absence of any suggestion of injury to the lunatic because of non-service upon one of them, the objection should be disregarded.

Many affidavits were read upon the motion to vacate the order appointing Jacob 0. Cook committee of the person and estate of the lunatic. It is obvious that one of the strong motives leading to the objections to the appointment is the concern of the appellant respecting the property of the lunatic. Jacob C. Cook, the committee, claims that the appellant is indebted to the lunatic; and also that another daughter, Mrs. Nellis, is indebted; and actions are pending against each of them. The appellant alleges that Jacob himself owes his mother. An action was pending by her against him at the date of his appointment. The merits of these controversies cannot be here determined. The case cited reaffirms the long-established rule*hat the interests of the heirs and next of kin must, in such a proceeding, be wholly secondary to the interests of the lunatic, both with respect to her person and estate. Regarding the interests of the lunatic, we think the reasons for the appointment of the present committee outweigh all the objections urged. The inquisition and order confirming it are, however, erroneous in that they assume to adjudge that Clarissa Cook had been a lunatic for more than two years prior to the date of the inquisition, and had during that time transferred a certificate of deposit for $1,000 to Elizabeth Crouse, this appellant. The former practice in this respect has been changed by section 2335, Code Civil Proc., and the adjudication as to lunacy is now limited to the fact as it exists at the time of the inquiry. In re Demelt, supra; Dominick v. Dominick, 10 N. Y. St. Rep. 32. It does not appear that this question was presented to the county judge, either at the time-of the confirmation of the inquisition or upon the motion to vacate the appointment. But in the interest of the lunatic, if not in that of the appellant, the-order confirming the inquisition should be conformed to the law. We therefore modify the order of confirmation by denying confirmation of the inquisition respecting the time from which the lunatic’s infirmity dated prior to the finding of the inquisition, and respecting her transfer of property during that, time. In other respects both orders appealed from are affirmed, without costs.

All concur.