In re Burke

This is an appeal from an order of the Special Term directing that a commission de lunático inquirendo issue to inquire into the mental capacity of the appellant, John Masterson Burke. The proceeding is prosecuted under the Code of Civil Procedure (section 2320 et seq.); that petitioner being a distant relative of the appellant, and not even one of his next of kin, although she is one of 14 heirs at law. She is a nonresident of the state, and does not appear to have ever enjoyed any close intimacy with the appellant, except that some 10 years ago he extended her aid in taking a normal course to improve her position as a teacher. Under section 2323, any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent, and the petitioner in this matter was there

It is to be observed that, in order to justify the issuance of a •commission, two things must presumptively appear to the satisfaction of the court: First, that the person proceeded against is incompetent; and, secondly, that a committee ought, in the exercise of a sound discretion, to be appointed. •■ It is not sufficient that incompetency alone is established; for it may well be, even where incompetency exists, that the situation and surroundings of the incompetent are such that no necessity exists for the appointment of a committee,- and that no good purpqse would be served thereby. Whether such a committee should be appointed is therefore left, not merely to the discretion, but to the sound discretion, of the court, a phrase indicating the necessity for especial care in the exercise of this discretion in a proceeding calculated to deprive a citizen, not only of the possession of his property, but also of his personal liberty; and it is by no means true that every case of mental weakness or impaired intellectual power will justify the court in exercising the power vested in its sound discretion. Matter of Morgan, 7 Paige 236 ; Matter of Shaul, 40 How. Prac. 204; Matter of Clark, 175 N. Y. 139 , 67 N. E. 212 .

The Special Term deemed the present case one in which the discretionary power of the court ought to be exercised, and it is suggested that, since the granting of the order rested .in its discretion, we should not review it. The discretion specified in the Code is, however, the discretion of the Supreme Court, and not of any one part •or term thereof (Lawson v. Hilton, 69 App. Div. 303 , 85 N. Y. Supp. 863 ), and, when an appeal from a discretionary order is brought up to this branch of the court, the party appealing is entitled to have the order reviewed, and a refusal to entertain the appeal and to pass upon its merits, merely because it involved a question of discretion, would be error (Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215 ; Jemison v. Citizens’ Saving Bank, 85 N. Y. 546 ; Bassett v. French, 155 N. Y. 46 , 49 N. E. 325 ).

The learned justice before when this application came at Special Term considered that he was precluded from considering anything except the petition and the affidavits submitted in its support. With this view we are unable to concur. The Code (section 2327) requires the court to act upon the petition “and the proofs accompanying it”; but this should not be limited to the petition and the proofs supporting it. Section 2325 requires notice of the application to be given to the husband or wife, if any, or to’one or more relatives of the alleged incompetent, unless sufficient reasons, which should be strong ones, are shown to exist for dispensing with such notice; and, although the statute does not so state, it is also necessary that

The appellant is a very old man, 95 years of age. He resides, and has resided for more than .30 years, in a home owned by him in this •city where he is cared for by a housekeeper who has been a member •of his household for a number of years, by a maidservant, and by a male nurse. The only direct evidence as to his mental condition is that given by the petitioner, who visited him at his home, and from whose deposition it may be inferred that he is suffering from senile debility, and exhibits such dullness of memory and intellect and such ■physical disability as is found not infrequently in persons of very .advanced age. He is unmarried, and has no children or near relatives, or, so far as appears, any relatives whom he is bound by any ties to support. There is absolutely nothing to show that he is not well cared for and comfortable. So far as his personal condition and ■surroundings are concerned, there is nothing whatever from which it may be inferred that any change is desirable, or,that the intervention of a committee is necessary. So far as concerns his property, it appears that in the year 1903 he conveyed his considerable estate to hum self and four very well known and highly competent trustees by a deed of trust for the purpose of founding a charitable organization, with the proviso that he should receive the income of the property during his life and that none of the property should be sold •or conveyed during his lifetime without his consent. By this means Tie not only provided for the ultimate establishment of a worthy charity, but relieved himself of all care and responsibility with respect to the management of the property, while at the same time he assured himself of a sufficient income for his needs. It requires, therefore, no committee to care for his property, and there is no suggestion that his income is wasted or misapplied.

We have presented, therefore, the case of an old man who has so disposed of his property as to assure himself that it will be devoted to the purpose to which he desires it to be put, who has relieved himself of its care and yet has assured a sufficient income while he lives, who is passing his declining years in the surroundings and companionship which he chose for himself while he was yet a much younger man, who is apparently well cared for and comfortable, and whose income is not even alleged to be misspent or wasted. In our opinion, upon this state of affairs, it would not be the exercise of a sound discretion to disturb the peaceful serenity of this •carefully planned and comfortably spent old age, and no necessity is

The order appealed from must therefore be reversed, but, since the petitioner was probably actuated by no improper motive, without costs. All concur.