1 N.J. Eq. 19 | New York Court of Chancery | 1830
The first question which presents itself, is, whether the petitioners have a right to come before the court ask relief, and if they have, whether they are properly before the court. And first as it regards the application of Peter Gulick. His claims to be heard in this matter are, that he is the agent and attorney in fact of Peter Covenhoven, and has acted as such from the 9th day of May, 1825, under a regular letter of attorney of that date; that he has transacted the business of the said Peter Covenhoven to a considerable amount, and has advertised and sold a part of the lands—he, the said Peter Covenhoven, executing the deeds therefor ; that by the finding of the inquisition, that the said Peter Covenhoven was a lunatic of a period prior to the date of the letter of attorney, he is greatly endangered in the several transactions, contracts and agreements, made and entered into by virtue of the said letter of attorney.
It is clear that a stranger has no right to interfere in a proceeding of this nature. He can neither sue out a commission, nor can he make himself a party to it by any application he may make to this court. I take it to be equally clear, that when a person has actual interests either equitable or legal, which are affected by the inquisition, he may apply to this court for relief. In England, this right is generally considered to be founded on the statute of 2d Edw. 6, c. 8, which provides, that if any are untruly found lunatic or idiot, any person or persons grieved by any such office or inquisition, shall or may have his or their traverse to the same, &c. That statute has never been re-enacted in this state, and I am not aware that it was in use in the colony previous to the revolution, so as to be considered part of the law in force at the time of adopting the constitution: nor do I consider it material; the right may exist independent of any statute. Proceedings upon an inquisition of lunacy are exparte; and although they are not conclusive as to the rights of third persons, yet, when those rights are affected by the inquisition, it is equitable and just that the party aggrieved should have an opportunity of being heard in such mode as may best comport with justice and the rights of all interested. It may be of the utmost importance to alienees and others holding interests under a person who is found to be a lunatic, to have the question definitely and speedily settled. The inquisition is always prima facie evidence, and it would be inconvenient and unjust
In the case exparte Roberts, 3 Atk. 5 and 308, it is laid down by Lord Hardwick, that the alienee of the lunatic may traverse the inquisition, but he shall be bound by the traverse. In exparte Morley, Lord Rosslyn held the same doctrine: and in exparte Hale, 7 Ves. jr. 261, Lord Eldon held that a bona fide owner in equity of two advowsons under contract might traverse an inquisition, finding that the party with whom he contracted had been a lunatic ten years before. In exparte Ward, 6 Ves. 579, the same chancellor, being asked to dismiss an application to traverse an inquisition on the ground that it was made by an entire stranger without any interest, rather declined expressing any positive opinion ; but admitted that such a case was not within his recollection. On the other hand, Lord Thurlow, in the matter of Fust, 2 Cox, 418, denied a traverse to the husband of the alleged lunatic, there being circumstances connected with the case that rendered the validity of the marriage doubtful. It was well remarked by the court in that case, that great care should be taken that the general object of the proceedings under a commission should not be disappointed by such application. Taking all the cases together, it is fairly to be inferred, as f think, that applications on the part of third persons in matters of this nature are not encouraged, yet that they will be listened to and granted when actual bona.fide interests and rights are endangered. Considering as I do, that Peter Gulick has not placed himself in this situation before the court, bis petition must be dismissed ; and in making this order, it is a matter of satisfaction to know, that if I should have mistaken the law upon the subject, the rights of the petitioner are not concluded, and also, that as to him the inquisition was not in fact an exparle proceeding, but that he attended before the jury and there had the benefit of witnesses and counsel.
To the petition presented by Peter Covenhoven, the alleged lunatic, it is objected that he cannot appear by attorney, but must appear in his own proper person before the court, so that the court may judge whether he is able to present a petition. This objection appears to me not well taken. In exparte Roberts, 3 Atk. 5, Smithie’s case in 1728 is referred to: it was a motion for leave to traverse by attorney, and was opposed on the ground that the tra
He contends that the affidavits on which the commission issued are insufficient, and not within the rule of the court. The general rule on this subject is, that the petition should be accompanied by affidavits setting forth the unsound state of mind of the person against whom the commission is desired, and mentioning such instances of incoherent conduct or expression as prove him unfit to continue in the management of his affairs, 2 Collins. 151. In 2 Madd. Chy. 569, it is said the petition must be accompanied by affidavits evincing the lunacy of the party ; and this is the language of our rule of 1817. The court ought, in all cases, to be satisfied of the propriety of granting the commission ; and to
Again, it is contended, that the inquest should have been held at the house of the lunatic. It appears that it was held at a public house about seven miles distant, and that the jury and two of the commissioners went to the house of the lunatic, and there inspected him. The cases adduced in favor of this proposition do not support it: it is not the practice, neither is it the law. A commission may issue against a person who is abroad and beyond seas : Exparte Southcot, 2 Ves. sen. 401 : but it must be executed in the place where he formerly resided. In that case Lord Hardwick is not understood by the court as saying, that the commission must be executed at the mansion house ; but that the mansion house shall determine the place of residence, and wherever the residence is, in that county the commission must be executed. So he was understood by Lord Eldon, in Baker's case, 19 Ves. 340 ; (better reported in Coop. 205.) He notices with approbation the dictum of Lord Hardwick ; but, instead of ordering the commission in that case to be executed at the mansion house of the lunatic, the order was that it should be executed in Devonshire, which was the county where the mansion house was situated. In 2 Collins. on idiots and lunatics, 163, there is the
The only question that remains is, whether Peter Covenhoven, the alleged lunatic, shall be allowed to traverse the inquisition. This must depend on the sound discretion of the court, under all the circumstances.
It is not pretended by any one that Peter Covenhoven was not at the time of taking the inquisition of unsound mind, and incompetent to the management of himself and property. The petitioner himself does not allege it; nothing of the kind is hinted at in the depositions of Mr. Alexander or Mr. Morford. The difficulty appears to be this, that in the month of August, 1825, Peter Covenho-ven executed a last will and testament; whereas by the inquisition it is found that as early as March, 1825, he was of unsound mind ;
Let the inquisition be confirmed.