Opinion
01-07-1886
In re LINDSLEY.
Henry S. Harris, for the motion. Ludlow McCarter, contra.
On motion to set aside the inquisition, and for leave to traverse the same.
Henry S. Harris, for the motion.
Ludlow McCarter, contra.
BIRD, V. C. The first ground of objection is that no notice was given to the alleged lunatic. Whatever defect there was in the service of the notice, there is no doubt in my mind but that the person to whom it was directed had full information of its contents, and every opportunity to make defense.
Second, that there was no time for preparation. The answer to this has already been given.
Third, that the commission was executed in Essex county. I am disposed to think that, if the place of residence is a controlling element, then, in this regard, there was error; for the testimony satisfies me that the alleged lunatic had her residence in Warren county, unless it be established that, when she left Essex county, she was indeed a lunatic, and incapable of determining a place of residence for herself.
Fourth, that the court made an order directing two physicians to examine the alleged lunatic, who afterwards testified before the jury, giving the result of their examination. It was insisted that the court had no power to make such an order, and that it was a highly improper thing for the court to do. I think that this objection is without the slightest foundation. One of the first duties and obligations of the court is to see to it that alleged lunatics arc protected in their person and property; and it is only for such purpose that the court interferes.
Fifth, that the return is against the weight of evidence. I have given this branch of the case a great deal of consideration, and am compelled to say that so much doubt has arisen in my mind that I think the inquisition should be set aside. It is true that, estimating the value of the testimony by the number of experts sworn, according to whose judgment Mrs. Lindsley is a lunatic, the preponderance is greatly in favor of the return. Among these witnesses are the two eminent physicians who were directed by the court to make an examination. On the other hand, only two experts were sworn. I cannot avoid the conviction that their view of the case is probably correct, and consistent with the facts presented by the experts on the other side. If I understand the theory of the petitioner's witnesses, as well as the witnesses ordered to make an examination, it is that Mary Ann Lindsley is so far insane or demented as to be incapable of managing her affairs; and that that insanity is established from the fact of her being afflicted with aphasia, which so affects her tongue as to make her incapable of communicating ideas; and that that disease so affects the brain, also, as to deprive the person afflicted with it of the capacity of reasoning about the ordinary affairs of life. It is agreed on all hands that her tongue is affected somewhat, and that she cannot communicate her thoughts, if she does think rationally. As already intimated, I am not satisfied that she does not think rationally. I am not satisfied but that all the facts given by the experts are quite consistent with the defective power of speech and a sound mind. It seems to me that, if she had been insane so long as is found by thereturn, there would be many proofs of such insanity in her walks and conversation and in her social intercourse; but it may be said that the testimony shows an utter absence of proof in this direction, except in the single instance of her apparent hostility to her daughter without any apparent cause. I think the James Case was stronger than this; yet in that case the court of errors reversed the order of the court below sustaining the finding of the commission.
I think it is the duty of the court to award an issue to be executed in the county of Warren. I think this course should be adopted, so that the examination of the alleged lunatic by the experts can be made in the presence of the jury. I cannot bring my mind to any other conclusion.