In re Hoag

7 Paige Ch. 312 | New York Court of Chancery | 1838

The Chancellor.

It has been found by experience, after ,an individual has so far given himself up to the indulgence of a depraved appetite as to become incapable of conducting his own affairs by reason of habitual drunkenness, that all indications of a permanent reformation are entirely illusory so long as he permits himself to use any intoxicating drinks whatever; and that the only chance of a permanent reformation for the unfortunate man who is once placed in that situation is to abandon the intoxicating cup entirely, and forever. The court, therefore, acting upon this well established fact in relation to the effects of any intoxicating liquor upon the appetite which has once become thus depraved, will not restore the property of the habitual drunkard to his possession, upon the mere proof of the fact that he is now capable of managing the same, so long as he continues the use of his inebriating drinks. And total abstinence from all alcoholic liquors, or from intoxication which as to him is the same thing, for at least one year is necessary to authorize the court to presume there is a permanent reformation, even under the most favorable circumstances. It must also be a voluntary abandonment of the use of intoxienting drinks, and not an abandonment which is the re-suit of constraint or of the want oi means to procure them.

Here the petitioner does not pretend that he has voluntarily relinquished the use of strong drink for a whole year, or even for a month, when he has had the means of procuring it. And no one of those who have furnished him with affidavits in support of his petition have ventured to say they believed that such was the fact. Indeed if the affidavit of the wife and daughter is true, that as late as September last the petitioner, in one of his drunken frolics, drove his family from the house and made such a noise as to alarm the neighborhood, I do not see how it was possible for two of those neighbors to swear even to their belief of h:s reformation. And the fact that the petitioner was frequently intoxicated within the last year is corroborated by the testimony of four witnesses who were not members of the family. Here then is the positive testimony of six witnesses, showing conclusively that the petitioner has not reformed, to counterbalance the mere belief of four others that he has. There is no foundation whatever, therefore, for a reference to a master to inquire whether he has so far reformed as to authorize the court to presume he will for the future refrain entirely from the use of intoxicating liquor. And until such a presumption can bo raised in tiis favor his property cannot be restored to him with safety to his family or to himself.

Neither is there any sufficient grounds for removing or changing the committee, or to justify the court in subjecting the estate to the expense of a reference to make further inquiries on that subject, or of a formal reference to take the accounts of the estate in the hands of the committee. The petition must therefore be dismissed; and the committee must pay the necessary costs and expenses of opposing the same, out of the estate in his hands. The committee must, however, make out and file with the register an account an l inventory of the estate, in the form prescribed by the 154th rule, showing the present situation and value of every part of the real and personal estate committed to his care and management; and also a statement of the accounts between him and the estate from the time he was left as the sole committee, to be examined by the injunction master in the usual way. And a similar account and inventory must thereafter be filed annually, as directed by the rule.

To save this unfortunate old gentleman, if possible, from his worst enemy, standing as he does upon the brink of ihe grave, an order must also be entered, as in Heller's case, (3 Paige's Rep. 202,) prohibiting all persons from selling to or furnishing him with any intoxicating liquor, or with the means of obtaining it, without the express sanction of his committee, upon pain of contempt. The committee must also cause copies of the order to be served upon the vendors of such liquors in the neighborhood. And if any person upon whom such order is served, or who is otherwise informed thereof, shall be guilty of a breach of the order, the committee must either bring the case before this court or lay the same before the grand jury of the county, so that the offender may be punished as for a criminal contempt. (2 R. S. 278, § 10, sub. 2. Id. 692, § 14.) And the necessary expenses of the committee upon any proceedings under the order will be allowed to him out of the estate.

This court has no power to order the petitioner’s real estate to be sold unless it is necessary to sell it for the payment of debts, or for the support of himself or of his family. And a sale is not necessary for either purpose in the present case. If it should bo found expedient hereafter to place him under the care and protection of the keepers of a lunatic asylum, and to sell the real estate for the purpose of raising funds to support him and his family, in that event the committee must apply for a sale of the real estate, in the form prescribed by the revised statutes, and fur such further directions as may be necessary for the security and comfort of the petitioner in such a retreat.