STATUTORY LAW OF NEW YORK REGARD

ING THE INSANE.*

BY EDMUND WETMORE, ESQ.

I. STATUTORY DISABILITIES OF THE INSANE.

The laws in which the ordinary disabilities of the insane are referred to, are as follows:

1. Aliening Lands.-Every person capable of holding lands (except idiots, persons of unsound mind, etc.,) seized, or entitled to any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the restrictions and regulations provided by law.

2. Marriage and Divorce.-When either one of the parties to a marriage shall be incapable for want of understanding of consenting to a marriage, the marriage shall be void from the time its nullity shall be declared by a court of competent authority.

The Supreme Court may by a sentence of nullity declare void the marriage contract for the cause existing at the time of the marriage that one of the parties was an idiot or lunatic.

3. Statute of Limitations.-If a person entitled to commence any action for the recovery of real property, or to make an entry or defence founded on the title to real

*This abstract of the principal laws of the State of New York respecting the insane, was compiled some years ago, for the simple purpose of facilitating a comparison between the legislation of our own and our sister States upon that subject. The paper was not intended to be a complete digest even of all our statutes, much less an orderly statement of the law of insanity in New York, as far as settled by legislative enactments and judicial decisions: it merely collates the substance of the statutes referred to, for the convenience of any who desire to know their general and most important provisions.

property, or to rents or services out of the same, be, at the time such title shall first descend or accrue, insane, the time during which such disability shall continue shall not be deemed any portion of the time limited for the commencement of such action, or the making of such entry or defence; but such action may be commenced, or entry or defence made, after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability; but such action shall not be commenced, or entry or defence made, after that period.

If a person entitled to bring certain enumerated actions other than actions for the recovery of real property, be, at the time the cause of action accrued, insane, the time of such disability is not part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by such disability, nor longer than one year after the disability ceases.

4. Wills.-(a.) Real Property.-All except idiots, persons of unsound mind, married women, and infants, may devise their real estate.

(b.) Personal Property.—Every male of the age of eighteen, and every female not married of the age of sixteen, of sound mind and memory, and no others, may bequeath personal estate.

II. APPOINTMENT OF COMMITTEES FOR THE INSANE.

[The following proceedings will be found treated of at length in · "Creary's Special Proceedings," and the present statement of them is taken mainly from that work.]

1. Courts which have Jurisdiction. In this proceeding the old method, in accordance with the ancient practice of chancery, remains substantially unaltered. The general power of chancery has been transferred to the

Supreme Court, which now supercedes the former Court of Chancery in this State. It is enacted that the Supreme Court shall have the care and custody of all idiots, lunatics, and persons of unsound mind, and of their real and personal estates, so that the same shall not be wasted or destroyed; and shall provide for their safe keeping and maintenance, and for the maintenance of their families and the education of their children, out of their personal estates and the rents and profits of their real estates, respectively. It is also enacted that the County Courts shall have the care and custody of the person and estate of a lunatic, or person of unsound mind, residing within the county, and also such courts shall have jurisdiction with respect to the sale, mortgage or other disposition of the real property of such persons situated within the county.

The same authority is also given to the Court of Common Pleas of the city and county of New York, where the lunatic or person of unsound mind resides in that city, or the property is situated therein. And the like authority is also given to the Superior Court of the city of Buffalo, where the lunatic resides in that city, or the property is situated therein.

In the case of a non-resident lunatic, the Supreme Court may appoint a committee to enable the said committee to obtain control of property in this State. And the court may issue a commission to inquire as to the lunacy of a non-resident, but it cannot be executed beyond the limits of the State. In such case the court will direct it to be issued in such county as may be most convenient.

2. Who may apply for a Commission.-There is no restriction: a stranger may apply, though the application of relatives will be entertained in preference, if there is no valid objection to them.

3. Method of Application. The application is based upon a petition to the court of proper jurisdiction, which should be accompanied with affidavits, setting forth the unsound condition of mind of the party, and stating some instances of conduct or language which plainly indicate it. Where the lunatic is a non-resident of the State, the petition must also show that he is the owner of property situated in this State.

4. The Commission.-Upon the granting of the petition and entering an order to that effect with the clerk of the court, the commission usually prepared by the attorney for the petitioner will issue. It is usually directed to three persons, commanding them to inquire into the alleged insanity, the time when it began, condition of the alleged lunatic's estate, etc.

5. Notice that the Commission has issued.-The party proceeded against as a lunatic is entitled to reasonable notice of the time and place of executing the commission, even though a non-resident. A requisition to this effect is usually inserted in the commission. Dangerous madness, or peculiar circumstances, may excuse this notice.

6. Place of executing the Commission. The order usually directs the commission to be executed at or near the place of residence of the alleged lunatic. Nonresidence will dispense with, and other circumstances may modify, however, this provision of the order.

7. Witnesses. Subpoenas may be issued by the commissioners, and the court will enforce them.

8. Precept for a Jury. The commissioners may issue a precept to the sheriff of the county in which the commission is to be executed, commanding him to summon a jury.

9. Duty of the Sheriff.-The sheriff will summon not less than twelve nor more than twenty-four jurors. It

is also his duty, if required, to attend the execution of the commission, for the purpose of guarding the jury

room, etc.

10. Proceedings before the Commissioners. The party proceeded against is entitled to be present and may have counsel. Before proceeding with the examination the commissioners should require proof of the due service of notice of the execution of the commission. The leading commissioner, usually the first one named in the commission, instructs the jury in the duty assigned them, and administers the oath to them and to the witThe party himself may be inspected and examined. The commissioners, or one of them, after the testimony is closed, should submit the question to the jury in the form of a charge, without arguments of counsel on either side. It is necessary that twelve of the jury should concur in the verdict. The verdict being returned,

nesses.

11. The Inquisition is made up accordingly, signed and sealed by the Commissioners and by the Jury.-The inquisition states the finding of the commission whether the party is a lunatic or not, or any other facts concerning which inquiry was to be made, relative to property, etc.

12. Return of Commission.-This is done by annexing the inquisition to the commission, duly indorsing them, and filing them with the clerk of the court.

13. Proceedings on Return.-Upon the filing of the return, a motion is made to confirm the finding of the jury. The alleged lunatic or his friends may also apply at the same time for an order to set aside the inquisition, or for leave to traverse it, or for an issue.

14. Who may be appointed Committee.-There is no particular restriction as to the person who may be appointed committee. The court will exercise its discre