Majority
p. 436In the matter of Mary Livingston, a Lunatic. June 5th. and on behalf of Philip I. Livingston, uncle of the petitioner, Mary, praying for the custody of the person of the lunatic.
Headnote
The custody of a lunatic’s person and estate, real and personal, may be committed to the next of kin, or heir at law.PETITION'of Alexander Crofts, and Mary, his wife, stating, that on a commission, in nature of a writ de lunático inquirendo, Margar H Livingston was found a lunatic ; that she is the widow of Robert T. Livingston, deceased, and entitled to real and personal estate ; that the petitioner, Mary, is the only child of the lunatic ; that the lunatic is in a state of deplorable helplessness and lunacy, and has been so for many years, and is now, and has been, since the death of her husband, in 1813, in the care of the petitioners. Prayer, that they may be appointed to the custody of her person and estate.
Henry, in support of the petition,
H. Bleecker, contra,
1 agree with what was said by Lord Macclesfield„ in Dormer's Case, (2 P. Wms 262.,) that there is no sufficient reason for the old rule against committing the custody of the person and estate of a lunatic to the heir at law. The rule, in many cases under our statute, would take a child from its parent, which would be most unnatural, and the rule has been held (ex parte Ludlow, 2 P. Wms. 638.) not to apply to the next of kin entitled under the statute of distributions to the personal estate. The daughter, in this case, is the most fit person to take charge of an aged
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and afflicted mother; and the presumption (if one must be indulged) would be in favour of kinder treatment, and more patient fortitude, from the daughter, than from the collateral kindred. I shall, therefore, direct, that the custody of person and estate of the lunatic be committed to the petitioners, on their giving the requisite security.
Rule accordingly.[1]
(a) (a) Vide ex parte Cocknayne, (7 Vesey, jun. 591.)