Opinion
02-06-1894
In re DEVAUSNEY.
Thomas S. Henry, for petitioner.
(Syllabus by the Court.)
Petition by Andrew Devausney for an inquisition of the sanity of Sarah H. Devausney. Heard on objections to the jurisdiction of court. Objections overruled.
The other facts fully appear in the following statement by GREEN, V. C:
An inquisition has been returned into this court, finding that Sarah H. Devausney was, at the time of taking the inquisition, a lunatic and of unsound mind, so that she is incapable of the government of herself, her lands, tenements, goods, and chattels, and that she has been in the same state of lunacy for the space of 25 years last past; and that, at the time of the said inquisition, she was entitled to a one equal seventh part of the personal estate of her father, Jacob S. Vanness, deceased, and also seised of, and entitled to, a one equal seventh part of two tracts of land in Hudson county, in this state. The petition on which the inquisition was issued was filed by Andrew Devausney, of the city of New York, state of New York, husband of the alleged lunatic. It states that by the will of Mrs. Devausney's father she is entitled to an equal seventh part of real and personal estate in New Jersey, and that she was, at the time of filing the petition, an inmate of the Bloomingdale Asylum for the insane in the state of New York. The jurisdiction of the court is brought in question.
Thomas S. Henry, for petitioner.
GREEN, V. C, (after stating the facts.) The jurisdiction of the court to institute the proceedings de lunatico inquirendo is challenged on the ground that, although the alleged lunatic is seised of, and entitled to, real and personal estate in New Jersey, she is not a citizen of or resident in this state, but is a citizen of and resident in New York. In Re Perkins, 2 Johns. Ch. 124, Chancellor Kent directed a commission to issue to inquire into the alleged lunacy of Daniel Perkins, of Bridgewater, in the state of Massachusetts, who was stated in the petition to be the owner of lands in New York, the chancellor saying: "There is no doubt, from the case Ex parte Southcote, 1 Amb. 109, that a commission of lunacy may issue against a person resident abroad." In Re Petit, 2 Paige, 174, Chancellor Walworth directed a commission to issue in the case of an alleged lunatic, who was a resident of Wilton, in the state of Connecticut, and who was stated in the petition to be entitled to real and personal property in New York. In Re Ganse, 9 Paige, 416, the alleged lunatic had resided in Fishkill, New York state, whence, in a state of mental aberration, he had gone to some place unknown, leaving personal property in care of his brothers in Dutchess county. Chancellor Walworth said that "since the decision of Lord Hardwicke in Southcote's Case there can be no doubt of the right of the chancellor to issue a commission where the lunatic has lands within his jurisdiction, although the lunatic is himself domiciled abroad." It did not appear that Ganse had real estate in New York, but it did appear he had personal property therein; that, as he had left his residence in Fishkill in a state of mental aberration, it was wholly improbable he could have established any legal residence out of the state since that time, and he must therefore be considered still a citizen of the state of New York, and a resident of Fishkill; and the chancellor directed a commission to issue to be executed in that town. In Re Fowler, 2 Barb. Ch. 305, the alleged lunatic resided in Ohio. Chancellor Walworth held that it must appear by the petition, in case the alleged lunatic was nonresident, that he owned property in the state, saying: "The court had no jurisdiction to issue a commission unless the alleged lunatic resided here, or was the owner of property in this state." In Re Child, 16 N. J. Eq. 498, Chancellor Green, at page 499, says: "A commission may issue when the alleged lunatic is a nonresident, or temporarily absent from the state, when it is impossible for the jury to see him;" referring to the cases before mentioned. It is true that the question before the chancellor was only in what place the commission should be executed, the alleged lunatic being actually in the state lunatic asylum in Trenton, and his former domicile being in Morris county; but hisstatement shows what he considered decided by Ex parte Southcote and the other cases. The jurisdiction is recognized in Shelf. Lun. 86; 2 Barb. Ch. Pr. 230; 2 Hoff. Ch. Pr. 251; Blake, Ch. Pr. 444; and Dick. Eq. Pr. 610, note. It is urged that all the American authorities cited rest on the case of Ex parte Southcote, 1 Amb. 109, 2 Ves. Sr. 401, and that the lord chancellor granted the commission in that case because the alleged lunatic was a subject of Great Britain, resident abroad, but having an estate in England. I do not think an examination of the case shows that this was the ratio decidendi. It is presumptively true that Southcote was a British subject, and Lord Hardwicke did say: "There can be no good reason why if any subject having an estate in England happens to be an idiot or lunatic, but is out of the kingdom, there can be no inquiry here;" but I do not understand that the fact the alleged lunatic was a subject was the sine qua non for instituting the inquiry. The jurisdiction in granting the inquiry in cases of lunacy was not at that time in the court of chancery, or the lord chancellor as chancellor, but in him as the person having, under the special warrant of the crown, the right to exercise the duty of the crown in the care of the persons and estates of idiots and lunatics. Sherwood v. Sanderson, 19 Ves. 280. This care the crown had by virtue of its prerogative, but it was a right which was never exercised except upon a previous office (for inquisition) found; and, for the purpose of its exercise, the crown, by sign manual, delegated its authority to its own great officer, not necessarily, but usually, the lord chancellor. Elmer, Lun. p. 1. The duty was not only as to the person, but also as to the estate of the idiot or lunatic. As to the person, it was the same as to each class, viz. to care and provide for safety and maintenance out of the estate of the idiot or lunatic. As to the estate, it was different in this respect: in the case of a lunatic the crown, as a trustee, had the duty only of taking charge of the person and property for the exclusive benefit of the lunatic and his estate, while in cases of idiocy it had both a trust and an interest, having the right to take, if it pleased, the profits of the estate, after making adequate provision for the necessary comforts of the idiot and his family. Elmer, Lun. p. 3; In re Fitzgerald, 2 Schoales & L. 432, 435; Shelf. Lun. 10, 11. An alien could take a fee by purchase, but he could not hold it against the king, (Co. Lift, 2a, 2b;) but the estate purchased by an alien did not vest in the king until office found, until which the alien was seised, and could sustain actions for injuries to his property, (Page's Case, 5 Coke, 52b.) 2 Bl. Comm. p. 293, c. 19; Id., § 5, p. 14. If an estate in England belonged to a lunatic, who was a nonresident subject or alien, the care of it for the lunatic, and its preservation, was still the duty, so to speak, of the crown, which, however, was not to be exercised until such lunacy was ascertained by the finding of a jury under a commission de lunatico. The finding of a commission in another jurisdiction could not be made effective as to property not in that jurisdiction without statutory authority. In re Duchess of Chandois, 1 Schoales & L. 301; In re Houstoun, 1 Russ. 312; In re Perkins, 2 Johns. Ch. 124. So that, if no commission could issue in the jurisdiction of the estate, the owner being nonresident, no lawfully appointed caretaker of the property could be secured. The doubts as to the case which Lord Hardwicke expressed in Re Southcote, as stated in the report in Ambler, arose from matters of practice, and were whether he should issue the commission, first, because the commissioners and jury were entitled to inspect the alleged lunatic and examine him, either before them or by a committee, which was impossible, as Southcote was in a foreign country, and, next, because the general rule was that the commission should be executed by a jury of the county of the residence of the alleged lunatic, which was impracticable, as he was resident in a foreign country; but he resolved these doubts by directing the commission to be executed at the mansion house, the former residence, saying: "No mischief can follow from the granting a commission, for, if the jury are satisfied without inspection, they will find so; if not, they will not make a return, or will return that it does not appear to them that he is an idiot or lunatic."
This examination of the law and case, in my judgment, demonstrates that In re Southcote is an authority for issuing a commission when the alleged lunatic is nonresident, if he or she owns an estate within the jurisdiction. The Chancellor in Re Farrell, (N. J. Ch.) 27 Atl. 813, gives the origin and history of the jurisdiction formerly exercised by the lord chancellor of England in respect of commissions de lunatico inquirendo, and traces the legislation of this state from 1794 to the present time. The result of that legislation is that the jurisdiction formerly exercised by the lord chancellor under the authority of the sign manual has been vested in the court of chancery. The duty of the care and safe-keeping of the persons and property of idiots and lunatics, imposed on the chancellor by the act of 1794, (Pat. Laws, p. 125,) was transferred by the act of 1804 (Bloom. Laws, p. 117) to a guardian to be appointed by the orphans' court of the county in which the lunatic resided. That act, as well as the law as it now stands, required that on the return of the inquisition, if the party was found non compos mentis, a copy of all proceedings had thereon was to be transmitted to the orphans' court of the county in which the lunatic resided, which court was authorized and directed to appoint such guardian. It is apparent that no orphans' court other than that of the domicile has jurisdiction to appoint aguardian for a person so found a lunatic, and that the statute in that regard is inoperative with respect to a nonresident lunatic. But, the inquisition having been returned that the person is non compos mentis, this court may still, if necessary, provide for the care and preservation of his or her estate by the appointment of a receiver, on a proper application for that purpose. The court has long exercised the power of appointing a receiver or temporary committee to care for the estate of a lunatic. In re Dey, 9 N. J. Eq. 181. This has been done, generally, pending judicial proceedings, on the ground that there is no person entitled to the property who is at the same time competent to hold and manage the estate. 3 Pom. Eq. Jur. § 1332. Kerr, Rec. at page 145, says: "The case of lunatics is the only exception to the rule that a receiver will not be appointed unless a suit is pending." In Ex parte Whitfield, 2 Atk. 315, Lord Hardwicke, as to the appointment of a receiver of an infant's estate, no suit being pending, says: "The case of idiots and lunatics has been insisted on as a similar case; but the jurisdiction which the court exercises with respect to them is a particular one, and therefore not like the present" See, also, Ex parte Warren, 10 Ves. 622; Ex parte Radcliffe, 1 Jac. & W. 639; Kerr, Rec. 113; Shelf. Lun. 186. It is, however, a jurisdiction which the court seldom exercises, and only when it seems necessary for the protection and care of the estate of the lunatic. The statutes of this state have made ample provision for the care of the estates of nonresident lunatics by the appointment of a guardian by the orphans' court of the county in which the property of the lunatic may be, or by the ordinary in certain cases, on presenting and filing an exemplified copy of the proceedings upon an inquest or finding of idiocy or lunacy in the domicile of the lunatic, according to the laws of such residence. Revision, p. 602, § 2, (P. L. 1890, p. 507.) in my judgment, these provisions are so full, and the procedure so simple, that recourse should be had thereto unless there are unsurmountable reasons for not doing so. But these provisions of the statute do not oust this court of its jurisdiction to issue the inquisition, and this return should be filed with the clerk, to be proceeded on as occasion may require.