Opinion
04-29-1904
In re DAYTON.
M. J. De Witt, for the motion. W. W. Cutler, opposed.
Inquisition to determine as to the alleged insanity of Samuel C. Dayton. Order to show cause why the return should not be quashed, or why, failing in that the alleged lunatic should not be allowed to traverse it Inquisition set aside.
M. J. De Witt, for the motion.
W. W. Cutler, opposed.
MAGIE, Ch. On a petition in the above matter an order on petitioners was allowed, requiring them to show cause why the inquisition returned should not be quashed, or, failing that, why the alleged lunatic should not be allowed to traverse it There is one ground of objection to the return which, in my judgment, is fatal to it The commission under which the inquisition was taken requires an inquiry whether Samuel C. Dayton is "a lunatic, or of unsound mind, so that he is not fit for the government of himself his lands," etc. It follows approved forms of such commissions. The return thereto is "that the said Samuel C. Dayton at the time of taking such inquisition is of unsound mind, and is not capable of the government of himself, his lands," etc. The word "and" in this sentence is, like the main part of the return, in typewriting. A line has been drawn through it and some following words, but there is some indication that, while the ink was fresh, it was partially wiped from the "and," and the cancellationwas allowed to remain on the following words. It thereby canceled the words "so that he," which in the writing had preceded the words "is not capable," etc. On the face of the return it is uncertain whether the word "and" is part of the finding. But, in my judgment, it is immaterial whether it is included or not. If included, the finding reads as above. It finds unsoundness of mind and incapacity. But it does not find that the incapacity is the result of the unsoundness. It does not, therefore, answer the express requirement of the commission. A return in similar language was quashed by Chancellor McGill, and his order was affirmed by the Court of Errors. Lindsley's Case, 43 N. J. Eq. 10, 10 Atl. 549; Id., 44 N. J. Eq. 564, 15 Atl. 1, 6 Am. St Rep. 913. The doctrine laid down by Justice Dixon in the latter case was that such finding must show mental incapacity for the government of the person and property. It is, of course, true that the return need not use the exact language of the commission. But it must show a finding in response to its requirements. If there appeared a finding of mental unsoundness and a finding of incapacity so joined that the latter could be read as dependent on the former, it is possible that the requirements of the commission could be held to be fulfilled. But in dealing with a matter affecting the liberty of the person and the management of the property of an alleged lunatic the court ought to require a return in unambiguous language. In the present case the elision from the return of the words "so that he," which would have exactly responded to the requirements of the commission, and clearly exhibited the dependence of incapacity upon mental unsoundness, warns me that I cannot safely read into the return the idea which the jury struck out.
The result is that the inquisition must be set aside, and a new commission issued.