Opinion
10-10-1902
In re COMFORT.
James Parker, for petitioner. Alexander C. Young, for respondent.
(Syllabus by the Court.)
In the matter of Elizabeth Agnes Comfort, an alleged lunatic. Petition to set aside the inquisition. Order for appearance.
James Parker, for petitioner.
Alexander C. Young, for respondent.
MAGIE, Ch. The questions under consideration in this matter are raised by a petition filed in behalf of Elizabeth Agnes Comfort, the purpose of which is to set aside an inquisition of lunacy, or to permit her to traverse it. The inquisition found petitioner to be of "unsound mind, so that she is not capable of governing herself, her lands, tenements, goods, and chattels." It also found that she had been in that state of lunacy for about a year and six months prior to the taking thereof. The application to set aside the inquisition is made upon several grounds, upon which it is contended the proceeding was so irregular as to require its being superseded by the issuance of a new commission.
It is first alleged that there was error committed by the commissioners in issuing their precept to the sheriff, and requiring him thereby to produce before them 24 jurors, and in proceeding, when the jurors were produced under the process, to take the inquisition. The contention is that by the provisions of "An act concerning idiots, lunatics, habitual drunkards, and persons alleged to be lunatics by reason of their minds being so unsound as to render them incapable of controlling themselves and their property," approved March 23, 1887 (2 Gen. St p. 1709), the precept should have required the sheriff to return a jury of only 12 persons in such a case, and that the return should have been that number of Jurors. Before the passage of that act, there is no doubt that the practice adopted by the commissioners and the sheriff was entirely proper. De Hart v. Condlt, 59 N. J. Eq. 611, 28 Atl. 603, 40 Am. St. Rep. 545. It is to be observed that the act does not expressly require the commissioners to Issue their precept for only 12 jurors, but only provides for the sheriff summoning 12, instead of 24, persons for the Jury under the inquisition. Nor is the language directory upon the sheriff, but only permissive. The declaration is that it shall and may be lawful for the sheriff in such cases to summon 12 jurors, instead of 24. In my judgment, this does not require the commissioners to issue their precept for the less number, nor require the sheriff to summon the smaller number. It follows that the precept is not irregular, nor was the action of the sheriff in summoning the whole jury improper. Furthermore, as the inquisition shows that it was found by many more than the 12 jurors necessary to make it effective, no injury occurred by the alleged irregularity.
It is next alleged that the sheriff summoned among the jurors four of the constables of the county. Assuming the fact to be as alleged, although it does not appear upon the record, I find it impossible to discover any irregularity in the proceedings in this respect. The office of constable is not one disqualifying a citizen from being a juror in such a case. Service on such a jury in no respect interferes with performance of their official duty, and there was no irregularity in that respect.
It is next urged that evidence was improperly admitted of the opinion of witnesses who were not experts as medical men, in respect to the question of the unsoundness of mind of the petitioner. The evidence was not taken stenographically, and what the course of it was, counsel on both sides have, without objection from either side, undertaken to indicate by sworn statements made up from their respective notes. Their statements do not materially differ. Giving to the statement presented on the part of the petitioner the fullest credence, it does not appear that error was committed in the admission of the evidence objected to. The witnesses were personally acquainted with the petitioner. They testified to facts within their own knowledge pertinent to the question, and were then permitted to express an opinion with respect to the facts testified to, and the observation they had made of petitioner. This is within the rule well settled in this state. That their observation was not very recent or very prolonged would go to the weight of their evidence, but not to its admissibility.
It is next contended that the commissioners refused to charge the jury as requested by the counsel who appeared for the petitioner. If this fact may be considered to be made out, it does not evince error, because it appears that the commissioners did charge the jury, and in the absence of that charge, which has not been laid before me, it is impossible to say that they were not properly instructed.
The other objections were directed to the weight and preponderance of the evidence. It is contended that the verdict is so contrary to the weight of evidence that it shouldbe set aside and a new inquisition issued, or at least that the evidence leaves the matter in so much doubt that the petitioner should be permitted to traverse the inquisition. It is undoubtedly true that the evidence is of a doubtful and uncertain nature. Petitioner has upon three occasions suffered from hemorrhages upon the brain, as a result of which she is slightly paralyzed on the right side, and is considerably affected with the mental infirmity called "aphasia," being unable to select and use proper words to express her ideas. It seems, however, to be the result of the medical testimony that aphasia may exist while the mental faculties of judgment, memory, and understanding remain unimpaired. If that be so, a person merely affected with aphasia is not necessarily of unsound mind. But there is other evidence with respect to the condition of the petitioner which is claimed to indicate that Mrs. Comfort is not only affected by aphasia, but is in a condition of dementia. The evidence referred to would seem to justify an inference that since her attacks of hemorrhage she has changed in character and habits; that, although she had never been a tidy woman, yet of late she has become filthy, not only in the care of the rooms occupied by her, but also in her person; that she indulges in repetitions of exclamations which are unmeaning, or which have no relation to anything which has been said to her or to anything which is transpiring about her; and other evidence of like character. On the other hand, there is evidence in her behalf that she is able to converse with persons and to intelligently transact business with them. The result reached was therefore arrived at upon evidence of a conflicting and contradictory character.
My review of the case, as presented, assuming that where the statements of counsel are divergent the statement of petitioner's counsel should be accepted, does not lead me to accede to the contention that the verdict of the jury was against such a weight of evidence as to justify me in treating it as a nullity, but I am compelled to say that I deem it raised so reasonable a doubt as to the propriety of the finding that a proper discretion requires me to accede to her request for a traverse if she intelligently desires to make such a traverse. De Hart v. Condit, ubi supra; Lindsley's Case, 44 N. J. Eq. 564, 15 Atl. 1, 6 Am. St. Rep. 913; In re Davenport (N. 7. Err. & App.) 50 Atl. 441. It does not appear in this case that petitioner will be unable to appear before me for examination in that respect. I will therefore make an order that she do so appear at some motion day at Trenton or at Newark or at Jersey City at which I may be scheduled to be present. If her counsel conceives that she cannot safely be produced before me, and will present affidavits of her condition justifying it, I will appoint some judicious master to examine her in that respect, and to report to me thereon. Vanauken's Case, 10 N. J. Eq. 186; In re Davenport, ubi supra.