In re the Fidelity Trust Co. — 27 Misc. 118

Majority

p. 118

Matter of the Petition of The Fidelity Trust Company of Newark, for its Appointment as Committee of the Estate of Mary B. McDermot, a Lunatic, within the State of New York.

(Supreme Court, New York Special Term,

April, 1899.)

Headnote

1. Incompetent persons—Bight to select a new domicile after inquisition found.

Where no committee of an incompetent person has ever been appointed by the Supreme Court of New York, the fact, that she was declared by it incompetent upon the return óf ■ an inquisition ' in lunacy, does not absolutely preclude her from the exercise of an

p. 119

intention to change her residence to another state, as her ability to choose a domicile still remains a question of fact.

3. Same — Appointment of foreign committee — Jurisdiction.

Where the incompetent person subsequently removed to another state and had sufficient ability to understand the removal and the foreign court determined that state to be the residence of her choice and first appointed a committee of her person and estate, it was considered that the foreign court had acquired jurisdiction first and that consequently the court of New York had power, under section 2326 of the Code of Civil Procedure, to appoint the foreign committee as committee of her property within the state, upon giving proper security.

Motion for the appointment of a foreign committee as the committee of the property of an incompetent person within this state.

C. Walter Artz, for motion.

James M. Hunt (George W. Elkins, of counsel), opposed.

The Fidelity Trust Company of ¡Newark was appointed committee of the person and estate of the incompetent, Mary B. McDermot, by decree of the Orphans’ Court, of Essex county, ¡New Jersey, a court having jurisdiction to make such appointments in general. The incompetent’s next of kin, Mrs. Jennie E. Mead, consented to the entry of the decree, but now seeks her own appointment as committee, and opposes the Trust Company’s motion for ancillary appointments in this state, upon the ground that the incompetency of said Mary B. McDermot had been declared in the course of proceedings in this court, prior to the date of such incompetent’s removal to ¡New Jersey, and that, being then incompetent, she could acquire no residence in that state; hence that the foreign court had no jurisdiction.

It is true that Mary B. McDermot was declared an incompetent person on the return of an inquisition in lunacy upon á commission issued by this court, but no appointment of a committee was made in those proceedings, and the effect of the inquisition was not to preclude, absolutely, any exercise of an intention of a change of residence of the incompetent, since the ability to choose a domicile still remains a question of fact, notwithstanding the inquisition (Holyoke v. Haskins, 5 Pick. 20 ; 16 Am. Dec. 312 ;

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Talbot v. Chamberlain, 149 Mass. 57 ; 10 Am. & Eng. Ency. of Law [2d ed.], p. 35, and cases cited in note), and there is no question here of á conflict of jurisdiction, for the jurisdiction of this court over the person and property of incompetent persons (Code of Civil Procedure, §§ 2320, 2321), which is exercised only by means of a committee duly appointed (id., § 2322), has never been asserted in this case.

As to the fact of Mary B. McDermot’s ability to choose a domicile in New Jersey, upon which the jurisdiction of the foreign court might.be said to depend, that court has determined the fact and the next of kin, Mrs. Mead, is concluded from disputing it. It appears, also, from the papers that the incompetent person had sufficient understanding for the purpose, and I find no sufficient reason for holding that her interests would require an examination into the fact aliunde, in view of the circumstances disclosed.

The case is one for the appointment of the foreign committee as committee of the property of the incompetent within this state (Code of Civil Procedure, § 2326), and the application is, therefore granted. A bond in the sum of $10,000 for the faithful discharge of its trust is required.

Application of next of kin denied, no costs.

Application denied, no costs.