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In re Folger

4 Johns. Ch. 169 Court N.Y. Ch. Decision date 1819-11-12 English

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p. 169
In the Matter of Folger, a Lunatic.
Nov. 12th.

Headnote

Where, on the petition of a relation of a lunatic, and who had received from him a deed of a farm, a few days before the finding of the inquisition of lunacy, an issue was awarded to try the fact of lunacy, and the party, on the trial, was found to have been a lunatic for several years preceding; the party traversing the inquisition was ordered to pay the costs.
PETITION of Aaron Folger, committee of the estate of the lunatic, stating that he was appointed committee in August, 1818. That in the autumn of 1818, on the petition of Thomas Folger, stating that he was grantee of a farm of the lunatic, by deed, dated a few days before the inquisition had been found, an issue was awarded to try the question of lunacy. That to expedite the business, the petitioner applied to have the issue tried at the Rensselaer circuit That Thomas Folger interposed a number of affidavits to prevent it, and succeeded. That the issue was to be tried at the Washington circuit, and the petitioner attended with twenty-three witnesses, but there was not time to try the issue at that Court. That the trial of the issue was then ordered for the Rensselaer circuit, and the lunatic was found to have been non compos, for several years prior to the trial. Prayer, that the said Thomas Folger may be ordered to pay the taxable costs attending the trial of the issue.
L. Mitchell, in support of the petition.

In the case ex parte Ward, (6 Ves. 579.) a groundless petition by a stranger, for a traverse, was dismissed with costs. So, where the heir filed a bill to set aside a will- on the ground of the testator’s insanity,

p. 170
and failed, he was ordered by Lord Hardwicke, in Webb v. Claverden, (2 Atk. 423.) to pay costs. It would appear, from the case of White v. Wilson, (13 Ves. 87.) that when die heir demands an issue to try the testator’s sanity, and fails, he will be ordered to pay costs, if he sets up insanity as a pretext. The question of costs is discretionary, and depends upon the character of the application, and the conduct of the party.

In the present case a relation of the lunatic had procured a deed .from him, while a lunatic, and his interest in establishing that deed, and not concern or humanity for the lunatic, was, probably, the motive for the traverse of the inquisition. He was struggling for his own advantage ; and it is just and reasonable that he should pay the costs to which he has, without just ground, and in furtherance of his claim, subjected the estate of the lunatic.

Ordered, that T. F. pay the costs to be levred[1] within •twenty days, &<%

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