I have observed, however, the existence of some incertitude among some of our solicitors concerning the procedural character of the inquiry to be pursued in this court on an application for the appointment of a guardian ad litem for a party alleged to be mentally incompetent where no commission de lunatico inquirendo has been previously issued. The deduction inferred from the conclusion in the case of Inre McLaughlin, 87 N.J. Eq. 138; 102 Atl. Rep. 439, that the Chancellor cannot in a summary manner inquire into the sanity of a person ( P.L. 1915 ch. 28 p. 57) seems to have generated the notion among some that to warrant the appointment of a guardian ad litem for a mentally deficient party, an adjudication of the insanity of the party on a commission in the nature of a writ of de lunatico inquirendo must have preceded or be contemporaneous with the appointment of the guardian ad litem. Not so. Undoubtedly this court may, where the special circumstances so recommend, stay the prosecution of a cause until such a direct inquisition has been made.
R.S. 3:7-35, et seq.; In re McLaughlin,87 N.J. Eq. 138; 102 Atl. Rep. 439. The single issue to be determined in this case seems to be whether the complainant on August 15th, 1941, lacked sufficient mental capacity to execute the trust indenture in question.
This provision does not extend the right of trial by jury, nor render it universally available, but merely preserves it in all those classes of action in which it was available at the time the constitution was adopted: State v. 1920 Studebaker Touring Car, 120 Or. 254 251 P. 701, 50 A.L.R. 81). In New York and New Jersey where inquisitions into the sanity of those concerning whom an information had been filed were conducted, with the assistance of a jury, at the time the constitution was adopted, the courts have held that the constitutional provisions preserving trial by jury render it available in sanity inquests: Sporza v. German Savings Bank, 192 N.Y. 8 ( 84 N.E. 406); In Re McLaughlin, 87 N.J. Eq. 138 ( 102 A. 439). But where proceedings to determine lunacy were not triable by jury at the time the state constitution went into effect, trial by jury in those instances is not available as a matter of right: Crocker v. The State, 60 Wis. 553 ( 19 N.W. 435); Ex Parte Scudamore, 55 Fla. 211 ( 46 So. 279); In Re Phillip Duerr, 25 Pa. Dist. Ct. 406 (upholding the validity of a proceeding substantially similar to our present one). Some courts have held that a proceeding to determine sanity is not the type of case within the contemplation of this constitutional provision, and that therefore it is not within the guarantee: Re Bresee, 82 Iowa 573 ( 48 N.W. 991); Gaston v. Babcock, 6 Wis. 503; 14 R.C.L., Insanity, p. 560. For a discussion and collection of citations, see the annotation to White v. White, 108 Tex. 570 ( 196 S.W. 508, L.R.A. 1918A, 339). Sections 9 and 10 of 1853 Statutes of Oregon, pages 362-363, which were in effect at the time our constitution was adopted, provided: "Sec. 9.
Sporza v. German Savings Bank, 192 N.Y. 8, 84 N.E. 406, 408; 1 Blackstone, pp. 303, 305. Our attention is called to a number of decisions by state courts holding that under the provisions of some state constitutions the question of a person's insanity must be tried to a jury. Thus the constitution of New York, Art. 1, § 2, provides: "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever", Sporza v. German Savings Bank, supra, and the New Jersey constitution, art. 1, par. 9, N.J.S.A. provides that the right of trial by jury should remain inviolate, In re McLaughlin, 87 N.J. Eq. 138, 102 A. 439. Most of the cases having to do with the construction of similar provisions of state constitutions are collected in a note at 91 A.L.R. 88 upon the subject "Constitutional right to jury trial in proceedings for adjudication of incompetency or insanity". As there disclosed the state courts have arrived at divergent views with respect to the meaning of their own constitutional provisions.
Appellants Markey and Triplett rely on cases in which the court made an empirical finding that the statutory or decisional law of its jurisdiction established the right to jury trial in mental commitment proceedings at the time of the adoption in the state constitution of a provision, like our Article III, Section 13, generally preserving the right to jury trial at common law. E.g., In re McLaughlin, 87 N.J. Eq. 138, 102 A. 439 (1917); Sporza v. German Savings Bank, 192 N.Y. 8, 84 N.E. 406 (1908); White v. White, 108 Tex. 570, 196 S.W. 508 (1917); Shumway v. Shumway, 2 Vt. 339 (1829). As we have shown, an empirical survey of both Virginia and West Virginia law, before and after the adoption of Article III, Sections 10 and 13, demonstrates that a jury trial was not accorded in mental commitment proceedings at common law.
In a civil inquisition to determine the insanity of a person a jury trial was mandatory and the matter could not be disposed of by the trial judge in a summary proceeding. In re McLaughlin, 87 N.J. Eq. 138 ( Ch. 1917). In similar proceedings under the Constitution of 1947 the matter may be tried by the court without a jury and if the jury is impaneled the jury verdict may be rendered by ten or more of a jury of 12 agreeing.
An inquest of the latter sort, resulting in a divestment of all power and control by the lunatic over his affairs and estate, may be made only by a jury upon a commission from the Court of Chancery. R.S. 3:7-35, c.; In re McLaughlin, 87 N.J. Eq. 138. There has been no inquest or appointment of a guardian for Mrs. Pozniak. For cases dealing with the distinction between the two proceedings, see Note in 7 A.L.R. 573. The issue in the present case is not whether Mrs. Pozniak was insane.
A legislative delegation of power to the Court of Chancery to determine sanity by a summary hearing without a jury has been held unconstitutional. In re McLaughlin, 87 N.J. Eq. 138;102 Atl. Rep. 439; In re Foran, 85 N.J. Eq. 288; 98 Atl. Rep. 640. In his administration over lunatics, the Chancellor must apply even procedural rules strictly "as heretofore" in the absence of statutory modification of that procedure.
While persons cannot be adjudged insane and committed without notice and an opportunity to be heard (State ex rel. Blaisdell v. Billings, 55 Minn. 467, 57 N.W. 206, 794, 43 A.S.R. 525; State ex rel. Kelly v. Kilbourne, 68 Minn. 320, 71 N.W. 396; see 43 A.S.R. 531), the majority of the courts hold, and we think properly, that the constitutional right to a jury trial does not apply to proceedings of this type. In re Application of O'Connor, 29 Cal.App. 225, 155 P. 115; Gaston v. Babcock, 6 Wis. 490 (503); County of Black Hawk v. Springer, 58 Iowa, 417, 10 N.W. 791. Contra, In re McLaughlin, 87 N.J. Eq. 138, 102 A. 439; Commonwealth ex rel. Stewart v. Kirkbride, 2 Brewst. (Pa.) 419; Shumway v. Shumway, 2 Vt. 339. If relator has a right to a jury trial, it is because such was provided at common law when our constitution was adopted.
On that inquiry, Mrs. Warker would have the constitutional right of trial by jury. In re McLaughlin, 87 N.J. Eq. 138. To support a judgment of incompetency and the appointment of a guardian, it would be enough if, from any cause whether by age, disease or affliction, she has become incapable of managing her own affairs.