In re Lowe — 19 N.Y.S. 245

Majority

p. 245

In re Lowe.

(Supreme Court, General Term, Fourth Department.

April, 1892.)

Headnote

Insanity—Petition fob Removal of Committee.

Where a committee of lunacy was appointed of the person and estate of one to whom no notice of the proceedings was given, and she subsequently petitioned for the removal of such committee, and the preponderance of the evidence was in favor of her sanity, it was error for the trial court not to permit her to appear in person, and be examined as to her mental soundness.

Appeal from Madison county court.

Petition by Jemima Lowe for the removal of a committee of lunacy appointed of her person and estate. From an order denying the petition, petitioner appeals.

Reversed.

Petitioner is a married woman, upwards of 73 years of age, who was married to John Lowe, who resides at Munnsville, Madison county, N. Y., over 52 years ago. The petitioner and her husband formerly resided in the city of Toronto, in the dominion of Canada. The petitioner seems to have some $2,500 on deposit in the Onondaga Savings Bank and $2,500 on deposit in the Syracuse Savings Bank in the city of Syracuse. It seems that in the month of August, 1890, after the petitioner went to Canada, her husband commenced proceedings before the Madison county court to have a committee of her person and estate appointed; and on August 22,1890, James Lowe, nephew of John Lowe, the husband, was appointed committee of the person and estate of said Jemima Lowe, and no notice for the application for the appointment of said committee, or of the time and place of the execution of the proceed

p. 246

ings, was given to the alleged lunatic. . On March 18,1891, motion papers-for the removal of the committee were served upon the committee, and on April 10,1891,. the Madison county court denied the motion, but “ with leave to the petitioner to r.enew the same upon fresh papers, as she may be ad-' vised.” On August 20, 1891, a second notice of motion was served for the removal of the committee, and on August 2,1891, the court again denied the motion, and the order is filed, in the Madison county clerk’s office, and the appeal before us is from that order. It has been asserted in behalf of the petitioner that the order of August 22,1890, appointing a committee, is void, as “no notice of either the application for a commission having been given to the alleged lunatic, or of the place or time of holding of the inquisition;” but the decision of the general term, first department, in Re Blewitt, 16 H. Y.. Supp. 305, holds that the failure to give such a notice is a “grave irregularity,” and it does hot “deprive the court of jurisdiction where the allegations of the petition show presumptively that the person is incompetent to manage-his affairs by reason of lunacy.”

Argued before Hardin, P. J., and Martin and Merwin, JJ.

Wilson, Kellogg <& Wells, for appellant. Charles Shumway, for respondent.

The petition presented for the removal of the committee stated that a notice had not been given to the petitioner. The notice of motion asked for an order that the committee be removed, and for such other relief as might be just. Ho sufficient reason seems to be given for not having served upon the appellant notice of the proceedings for the appointment of a committee. See section 2325 of the Code. In behalf of the appellant it was asked that she might be permitted to personally appear, and be examined as to her sanity. Ho such opportunity seems to have been afforded her by the-county court. The preponderance of the evidence and the weight of the affidavits found in the appeal book seem to be in favor of the sanity of the appellant. If an oral examination had been had of the affiants, that court might have come-to the conclusion that the committee should be removed, and the property restored to the petitioner. Viewing the evidence and affidavits found in the appeal book as we do, we think the order appealed from should be reversed. Upon further proceedings before the county court an oral examination of witnesses may be ordered' before the court, or a referee appointed for such purpose. When such an investigation shall have been had. before the court or a referee, and the evidence thus taken been considered, a result may be-reached upon the evidence produced by both parties which will be more satisfactory to the conscience of the court below, as well as to this court. ' Order reversed, with $10 costs and disbursements, and proceedings remitted-to the county court of Madison county.