131 N.Y. 541 | NY | 1892
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The jurisdiction which formerly was vested in the chancellor over the person and estate of lunatics, is now exercised by the Supreme Court. But the Supreme Court exercises the power under the same rules as appertained to and regulated the jurisdiction of the chancellor, subject to such statutory provisions on the subject as are contained in the Code of Procedure. (Code, § 2320et seq.) The power of the court to appoint a committee of the person and estate of a lunatic is very essential, but it should be exercised with scrupulous regard to the rights of the alleged lunatic and under the protection which attend other judicial proceedings affecting person or property, modified only so far as the peculiar nature of the inquiry and the condition of the alleged lunatic may render modification necessary. The fact of lunacy must be ascertained judicially before the court can deprive the lunatic of the custody of his estate or submit his person to the control of a committee. The proceeding for the appointment of a committee is no exception to the rule that the person proceeded against must have notice of the proceedings to give validity to an adjudication against him. Where the lunacy was of such a character as to wholly deprive the lunatic of his understanding, and this was made to appear to the court on the initiation of the proceedings, it was the practice in chancery for the chancellor to direct notice of the proceedings to be served on some relative or other person in order that opportunity might be afforded to protect the interests of the alleged lunatic. The Code now prescribes that in all cases the court must require notice to be given of the presentation of the petition in lunacy proceedings, to the husband or wife, or to one or more relatives, or to *547
an officer specified, unless sufficient reasons are set forth in the petition or accompanying affidavits for dispensing with such notice. (Code, § 2335.) This section does not touch the question of the right of the alleged lunatic to have notice also. It was said by the chancellor in Matter of Tracy (1 Paige, 580), that if there "were any peculiar circumstances in the case which rendered it improper or unsafe to give notice to the party as in some cases of furious madness, the facts should be stated in the application to the court so that a provision might be inserted in the commission dispensing with the necessity of notice." In our opinion a very clear case should be made before the court should proceed in lunacy proceedings, in the absence of actual personal and written notice to the party, and that unless such a case is made by the petition or affidavits, and an order made by the court dispensing with personal notice and providing for notice to relatives or others in lieu of personal notice an adjudication in the absence of such notice should be set aside. The cases must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in addition to notice to relatives and others, as required by section 2325 of the Code. Attempts by interested persons to get control of the person and property of another by the aid of lunacy proceedings, or proceedings on the ground of habitual drunkenness are not infrequent, and no precaution should be omitted which may apprise the party of the proposed action and enable him to appear and defend. The authorities and text writers assume that the party proceeded against should have notice of the time and place of executing the commission. (In re Tracy, supra; In re Petit, 2 Paige, 174;Chase v. Hathaway,
In the present case there was no ground presented in the petition why the alleged lunatic could not be served with notice, and as his insanity was with lucid intervals there is no reason for supposing that notice would have been useless. We are of opinion that the proceeding and adjudication were *548 invalid for want of notice to the party. The statement of Mrs. Blewitt that she informed her husband on the day before the inquisition was taken, that she had applied to the court to have a committee appointed and that the hearing was appointed for an hour on the next day, was not notice within the requirement. It would be dangerous to bind a party by a notice so informal. There is no reason to suppose that these proceedings were instituted by the petitioner in bad faith, but the due administration of justice and the possible grave injuries which may flow from irregular proceedings in these cases, make it proper for courts to guard them with great strictness, and to require an observance of all practicable safeguards against fraud and injustice. We have concluded that the order appealed from may be affirmed without weakening the principle which we have announced, on these grounds: first, that in the proceedings instituted before Judge INGRAHAM by the alleged lunatic, there was a full opportunity afforded him to present and litigate the question of his sanity, and it was litigated and decided adversely to him without his raising any question of jurisdiction; second, that the appellant in his present motion asked alternative relief, viz., that the proceedings should be vacated, or that the petitioner be permitted to traverse the inquisition, which latter relief, or relief more favorable has been awarded him; third, that the order below allows the appellant to traverse not the inquisition, but the original petition, thereby putting him in the same position as upon an original hearing thereon, and fourth, that it was discretionary with the court, pending the traverse, to let the inquisition and proceedings stand until the termination of the inquiry. (In re Tracy, supra.)
The other objections taken to the procedure which resulted in the appointment of a committee are not, we think, available as a ground of reversal.
The orders of the Special and General Terms should, therefore, be affirmed.
All concur.
Orders affirmed. *549