90 N.J. Eq. 37 | New York Court of Chancery | 1918
October 2d, 1918, a petition was presented to this court alleging that Anna M. Owens had become so far deprived- of her reason as to render her unable to care for herself or her property, and praying for the appointment of a commission in the nature of a writ efe lunático inquirendo. Pursuant to the prayer of the petition, commissioners were appointed and the writ was ordered issued on that day. October 18th, 1918, was designated b} the commissioners for the hearing and a precept was delivered to the sheriff for that purpose. October 14th, 1918, a petition was presented to this court, signed by the alleged lunatic, for leave to file a special appearance and contest the jurisdiction of the court. On that day an order .was made permitting such appearance, staying the inquisition, and fixing November 11th, 1918, for hearing under the special appearance; depositions in behalf -of the .respective parties were ordered taken in the interim for use at the hearing.
The petition for the writ de lunático inquirendo set forth that the alleged lunatic was the owner of certain real estate in this state and also of some personal property, and that she was then residing temporarily with her daughter in Philadelphia. Pennsjdvania, but had no property in that state, and for that reason no similar proceedings had been instituted in Pennsylvania.
The petition of the alleged lunatic sets forth that she is, and for four years preceding, has been a resident of Philadelphia, Pennsylvania, and that she has no real or personal estate in New Jersey; that the real estate referred to in the original petition was sold by her in September, 1918, to John Q. Bonner, of Wilmington, Delaware, for a full consideration; that the deed has been delivered and that the purchaser is in possession; that she is not insane and is capable of managing her own affairs.
By the first section of our Lunacy act (2 Comp. Stat. p. 2781) it is provided that in cases of idiocy 'or lunacy found in proceedings da lunático mquirendo, the chancellor shall cause a certified copy of the proceedings to be transmitted to the orphans court of the county where such idiot or lunatic may reside, and the orphans court shall thereupon appoint a guardian. This section was first enacted March 1st, 1804. Bloomf. 117. Prior to that time guardians in lunacy proceedings were appointed by the chancellor, pursuant to the act of 1794 (Pat. L. p. 125), in harmony with the English practice This direction for the appointment by the orphans court of the county of residence necessarily excluded from its operation cases of non-residents. Whether the chancellor possessed jurisdiction in cases of non-residents owning property in this state appears to have been long doubted. In the absence of siich jurisdiction on the part of the chancellor no means existed through the medium of lunacy proceedings for the protection of property in this state owned by a lunatic whose domicile was in another state, since the finding of a commission in another state could not be effective as -to property in this state in the absence of statutory authority for that purpose. See In re Neally, 26 How. Pr. 402; In re Perkins, 2 Johns. Ch. 124. Legislation of that nature appears to have been first enacted in
Together these two sections of our statute provide means in lunacy proceedings for the appointment of guardians by our orphans court for resident lunatics and for non-resident lunatics having property in this state; the former by proceedings initiated in this state; the latter by proceedings initiated in the state of tire residence of the lunatic.
In re Devausney, 52 N. J. Eq. 502, Vice-Chancellor Green reached the conclusion that, notwithstanding this legislation, the chancellor still has jurisdiction to entertain lunacy proceedings in cases of non-resident lunatics owning property in this state, but says (at p. 508 of the reported case) : “In my judgment, these [statutory] provisions are so full, and the procedure so simple, that recourse should be had thereto unless there are unsurmountable reasons for not doing so.”
In appropriate recognition of the conclusions reached (In re Devausney), it must now be held that, although this court may possess jurisdiction to entertain proceedings in lunacy in cases of non-resident lunatics who own property in this-state, that jurisdiction should not be exercised unless some unsurmountable obstacle exists which prevents the procedure contemplated by our statute; that procedure is: In cases of non-resident lunatics the primary proceedings shall be taken in the state of domicile and ancillary letters of guardianship issued thereon in this state if the lunatic owns property here; primary proceedings shall be taken here only in cases of residents, and letters of guardianship issued by the orphans court of the county of such residence.
In the present case, it appears from the depositions which have been taken that a conveyance of the real estate of the alleged lunatic was made by her to one Bonner under date of Sep
The situation thus presented is that the legal title to the real estate of the alleged lunatic has passed from her to another person. If he has purchased in good faith for a fair price without knowledge or suspicion of any mental incapacity of his vendor, his title cannot be successfully .assailed. Matthiessen & Weichers Refining Co. v. McMahon, 38 N. J. Law 536. Obviously, this court cannot at this time determine the validity of that conveyance in a proceeding in which the purchaser is not a party. The personal property referred to in the petition is of little value and is in the possession of the original petitioner herein and is not in clanger of loss or injury. It follows that, inasmuch as the non-residence of the alleged lunatic prevents the appointment of a guardian in this proceeding by the orphans court, pursuant to the direction of our statute and the alleged lunatic resides in a jurisdiction adjacent to this state, and no obstacle exists to prevent lunacy proceedings there, the only possible impelling purpose of retaining the present proceeding appears to be for the future appointment by this court of a receiver or committee in the nature of a guardian, in the event of an affirmative return of lunacy, to the end that such receiver or committee might, if so advised, file a bill to contest the validity of the conveyance.
I am convinced that the retention of the present proceedings for the purpose suggested cannot find adequate justification. No obstacle to the statutory procedure ■ exists. Indeed, con
No costs should be taxed against either party.