52 N.J. Eq. 502 | New York Court of Chancery | 1894
The jurisdiction of the court to institute the ‘proceedings de lunático inquirendo is challenged on the ground that, although the alleged lunatic is seized of and entitled to real and personal estate in New Jersey, she is not a citizen of or resident in this state, but is a citizen of and resident in New York.
In Matter of Perkins, 2 Johns. Ch. 124, Chancellor Kent directed a commission to issue to inquire into the alleged lunacy of Daniel Perldns, of Bridgewater, in the State of Massachusetts, who was stated in the petition to be the owner of lands in New York, the chancellor saying: “There is no doubt, from the case Ex parte Southcote, Amb. 109, that a commission of lunacy may issue against a person resident abroad.”
In Matter of Petit, 2 Paige 174, Chancellor Walworth directed a commission to issue in the case of an alleged lunatic, who was a resident of Wilton, in the State of Connecticut, and who was stated in the petition to be entitled to real and personal property in New York.
In Matter of Ganse, 9 Paige 416, the alleged lunatic had resided in Fishkill, New York state, whence, in a state of mental aberration, he had gone to some place unknown, leaving personal property in care of his brothers, in Dutchess county. Chancellor Walworth said that, “since the decision of Lord Hard
In Matter of Fowler, 2 Barb. Ch. 305, the alleged lunatic resided in Ohio. Chancellor Walworth held that it must appear by the petition, in case the alleged lunatic was non-resident, that he owned property in the state, saying “the court had no jurisdiction to issue a commission unless the alleged lunatic resided here or was the owner of property in this state.”
In In re Child, 1 C. E. Gr. 498, Chancellor Green (at p. 499) says: “A commission may issue when the alleged lunatic is a non-resident or temporarily absent from the state, and when it is impossible for the jury to see him,” referring to the cases before mentioned. It is true that the question before the chancellor was only in what place the commission should be executed, the alleged lunatic being actually in the state lunatic asylum in Trenton, and his former domicil being in Morris county, but his statement shows what he considered decided by Ex parte Southeote and the other cases.
The jurisdiction is recognized in Shelf. Lun. 86; 2 Barb. Ch. Pr. 230; 2 Hoffm. Ch. Pr. 251; Blake Ch. Pr. 444; Dick. Ch. Pr. 610, note.
It is urged that all the American authorities cited rest on the ease of Ex parte Southcote, Amb. 109; S. C., 2 Ves. Sr. 401, and that the lord-chancellor granted the commission in that case because the alleged lunatic was a subject of Great Britain, resident abroad, but having an estate in England. I do not think an examination of the case shows that this was the ratio decidendi. It is presumptively true that Southeote was a British
This examination of the law and case, in my judgment, demonstrates that In re Southcote is an authority for issuing a com.mission when the alleged lunatic is non-resident, if he or she owns an estate within the jurisdiction.
The chancellor, in In re Farrell, 6 Dick. Ch. Rep. 353, gives the-origin and history of the jurisdiction formerly exercised by the lord-chancellor of England in respect of commissions de lunático■ inquirendo, and traces the legislation of this state from 1794 to-the present time. The result of that legislation is that the jurisdiction formerly exercised by the lord-chancellor under the-authority of the sign manual has been vested in the court of chancery.
The duty of the care and safe-keeping of the person and property of idiots and-lunatics imposed on the chancellor by the-
But the inquisition having been returned that the person is-non compos mentis, this court may still, if necessary, provide for the care and preservation of his or her estate by the appointment of a receiver on a proper application for that purpose.
The court has long exercised the power of appointing a receiver or temporary committee to care for the-estate of a lunatic. In re Dey, 1 Stock. 181. This has been done, generally, pending-judicial proceedings, on the ground that there is no person entitled to the property who is, at the same time, competent to hold and manage the estate. 3 Pom. Eq. Jur. § 1332. Kerr Bee. 135 says: “ The case of lunatics is the only exception to the rule that a receiver will not be appointed unless a suit is-pending.”
In Ex parte Whitfield, 2 Atk. 315, Lord Hardwicke, as to the-appointment of a receiver of an infant’s estate, no suit being pending, says: “ The cases of idiots and lunatics has been insisted on as a similar case, but the jurisdiction which the court exercises with respect to them is a particular one and therefore not like the present.” See, also, Ex parte Warren, 10 Ves. 622; Ex parte Radcliffe, 1 Jac. & W. 680; Kerr Rec. 113; Shelf. Lun. 186.
It is, however, a jurisdiction which the court seldom exercises, and only when it seems necessary for the protection and care of the estate of the lunatic.