47 How. Pr. 150 | New York Court of Common Pleas | 1874
This is an appeal from an order denying a motion to vacate an order appointing Nathaniel Jarvis, Jr., the committee of the estate of the idiot, upon the ground that the idiot’s sister, Sarah A. Suttie, who is a tenant in common with the idiot of real estate under the will of their father, had no notice of the proceeding by which Mr. Jarvis, upon the consent of the idiot’s mother, was appointed committee of the person and estate, or of the proceedings by which Ann Eliza Owens was found to be an idiot.
It is not denied but that she is an idiot, nor is the finding of the inquisition by which she was so declared questioned. It is insisted, however, that it was irregular to appoint a stranger the committee of her person and estate without 'notice to the sister, who is a tenant in common with her in the reversionary estate, and who, in the event of the idiot’s death, would, if surviving, be her heir.
I know of no authority, and none has been referred to, holding that it is irregular to appoint a stranger the committee of the person and estate of an idiot or lunatic without notifying those who, as next of kin, will succeed the idiot or lunatic as heir. Judge Brown held very properly in Lamoree's Case (11 Abb. Pr. 274) that an order appointing a stranger the committee of a lunatic, where the next of kin did not assent or unite-in the petition, was improvidently granted. But that is not this case. The mother of the idiot, who is her next of kin, instituted the proceedings by which her daughter was declared non compos mentis. It was upon her petition that the proceedings were founded, and it was at her request and upon her-
F. Owens, by his will, left all his property, real and personal, to his wife, the mother of the idiot and of her sister, during her (the wife’s) natural life, and upon her death, he directed that it should be divided between his two daughters, three-quarters of the whole to the idiot, and the remaining one-quarter to her sister, Mrs. Suttie. The idiot is now twenty-four years of age. She has been entirely helpless from her birth, and the mother has at her own expense continuously taken care of this helpless creature from her infancy. The sister, Mrs. Suttie, has no property except the household furniture given her by her mother and the interest before referred to in her father’s estate after the death of her mother, and her husband is a man of small means, depending upon his labor as a jeweler for support. She is also a person physically weak, at all times, •in bad health, from time to time requiring the care of her
She says, in her affidavit, that her mother kept all the proceedings in the matter secret from her, and that she had no knowledge of the inquisition or of any of the proceedings anterior to the appointment of Mr. Jarvis; that the proceedings are not for the interest of her sister ; but that her mother is confederating with others to procure a sale of a portion of her and her sister’s estate, at a sum much less than the real value of it, with the object of dividing up the proceeds of the sale in such a manner as to secure to her mother a larger interest than she would otherwise have under the will.
The mother’s affidavit is a complete and satisfactory answer to this charge. A considerable portion of it has been already stated, in addition to which it appears by it that her husband left by his will two houses, one in Eightv-first street, where she and Mrs. Suttie reside, and one in Wooster street. That the rent of the Wooster street house is $1,000 per annum, nearly one-half of which is consumed in the payment of taxes and other expenses ; that the building is dilapidated and nearly
So far- from seeing in the circumstances any reason why this order should be set aside, that this daughter might be made the committee of the person and estate of her idiot sister, they show that she would be an unfit person to be intrusted with the charge either of the person or of the estate. I had occasion in the Matter of Bomanjee Byramjee Colah, 3 Daly, 529, to examine very carefully the nature of the peculiar jurisdiction exercised in the appointment of a committee to take charge of the person and estate of a lunatic, and pointed out, upon the authorities there quoted, that care has always been taken not to intrust the custody of the person or estate to those who may be pecunarily benefited by the lunatic’s death, or whose interest it is to keep his property from diminishing, unless the court is satisfied that it would be to his advantage that those who stand in the relation to him of blood and natural affection should have the custody and care of him, and that as respects his estate, the governing principle in its management
Loew, and J. F. Daly, JJ., concurred.
Judgment affirmed.