Opinion
11-04-1901
BROWN v. FOX et al.
C. L. Corbin, for petitioner. W. D. Edwards, for respondents.
Petition by John J. Brown, as committee of Charlotte M. Fox, a nonresident lunatic, against Margaret Fox and others. Denied.
C. L. Corbin, for petitioner.
W. D. Edwards, for respondents.
PITNEY, V. C. (orally). This matter comes before me in this wise: Messrs. Hamilton Wallis and Edward F. C. Young were trustees of a fund of about $14,000, which they held in trust to pay the income to the widow of John S. Fox, late of Jersey City. They held it for many years, the widow living to a great age. At her death it went to his children, five in all,—three sons and two daughters. The two daughters are named Charlotte M. and Margaret, maiden ladies, and residents of New York. Wallis and Young applied to this court to settle their accounts and direct them as to the disposition and payment of the fund, so that they might be discharged. The amount in their hands has been ascertained, and awaits the direction of the court. In the meantime Charlotte Fox had become Insane, and had been kept by her sister for several years in a private lunatic asylum or hospital in the city of Brooklyn, and had been, as appears to the court, satisfactorily and comfortably taken care of. Her sister, Margaret, had devoted one-half of the income of the two to her support Shortly after the amount of this fund was ascertained in the hands of these trustees, Messrs. Willis & Wallis, of New York City, their solicitors, applied to the supreme court of that state for the appointment of a committee of the person and estate of Charlotte Fox under the lunatic laws of that state. The finding that she was a lunatic was had, and the amount of her estate, including this $7,000, was fixed at $27,000, in round figures. By the practice in lunacy cases in New York, as I understand it, all the next of kin must be summoned before the commissioner and jury. Two of the brothers and the sister were summoned, but one brother, who is, perhaps, a ne'er do well, was not summoned personally, but was brought in by publication according to law. The children who were at hand all united in asking the judge before whom the proceedings came to appoint the sane sister, Margaret, as guardian of the person and estate of Charlotte. The papers were so made out and handed up by the junior partner of the firm of Willis & Wallis in the absence of those gentlemen, who, perhaps, were out of the state on their summer vacation, to a judge of the supreme court with the requestthat he appoint Margaret; she offering to serve without compensation. It is a matter of indifference to me what motives influenced the judge in his action. I have no criticism whatever to make upon it. But the affidavits show that he said that, inasmuch as one of the next of kin had not been personally served, he felt it his duty (I am quoting from memory) to appoint an outside party. The junior partner, who appeared, protested, and asked the judge not to act without hearing him further. The judge took the papers, erased the name of Miss Fox, and inserted the name of Mr. John J. Brown, of Westchester county, as a committee of the property and person. The junior partner, finding the papers in that situation, applied to the court for further hearing, and was refused. Mr. Brown qualified and gave bond. Immediately the children, who are not satisfied with Mr. Brown's appointment, applied to the orphans' court of the county of Hudson, under the act which has been read and referred to, for the appointment of a guardian. Mr. Brown then applied to this court on a petition for an order that this court transfer the fund of $7,000 to him, and for an injunction against proceeding in the orphans' court. An order to show cause was granted, with interim restraint upon the proceedings in the orphans' court. The matter now comes up on the order to show cause. Now every one of the sane children join in expressing their desire that the fund should not be transferred to New York.
The first question is whether it is a matter of right for this New York committee to have this money, or is it a matter of discretion in this court, or in the orphans' court, which is the same thing. It was argued with great power by Mr. Corbin that it is a matter of right. The trustees have asked this court to discharge them, by directing the money to be paid to somebody, and the court ordered the money to be held by the trustees until a guardian should be appointed. Now, there is an act of this state, which has been referred to, and which provides for this very contingency, by the appointment of a resident guardian for a nonresident lunatic who has money in this state; and it authorizes the orphans' court or the prerogative court to appoint a resident guardian in such case, and gives those courts— the prerogative court and the orphans' court—the discretion to pay over that fund to the foreign committee or not. So far as this court has power, it has the same discretion given it. Under those circumstances, shall I order this money paid to Mr. Brown, the appointee in New York, or shall I hold it until a resident guardian may be appointed in the county of Hudson? Now, I say, without at all impugning the motives of the New York judge, that I have talked with my brethren (several of them) about this matter, and they agree with me that I ought not, in the exercise of my discretion, to order the removal of this fund, and I decline so to do. I therefore refuse the petition of the foreign committee, and dissolve the order restraining proceedings in the orphans' court. It is enough for me to say that that guardian was appointed against the will of everybody,—against the will of the petitioner's counsel, of the petitioner, and everybody who applied in that court, and all the friends; that Mr. Brown himself is a keeper of what might be termed a lunatic asylum, and he may be the best man in the world, for all I know; but these two circumstances are enough to satisfy me that the fund had better be kept here, in the state of New Jersey. It is argued that such action is improper, because it results in paying double commissions; that the orphans' court or the prerogative court would not have power to pay that money over to any person other than the committee in New York. That is not my understanding. My understanding is that the prerogative court or the orphans' court or this court (if it gives this court power to appoint a guardian) has the power to see to it that the income of this money, or the principal, is to be applied directly to the support of that lunatic, under its immediate supervision, and to direct the resident guardian, when appointed, to apply it directly for that purpose.