In re Blewitt

• Decision Date: 25 March 1892
• Parties: In re BLEWITT.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 541

30 N.E. 587

In re BLEWITT.

Court of Appeals of New York.

March 25, 1892.

Appeal from supreme court, general term, first department.

The original petition in this proceeding was filed by Julia Blewitt for the appointment of a committee of the person and property of James Blewitt, her husband, an alleged lunatic. The committee was duly appointed, and, no legal notice of the petition or proceedings thereunder having been given to the alleged lunatic, he afterwards moved to set such proceedings aside for want of notice and other irregularities. From an order of the general term, affirming an order made at special term denying such motion, James Blewitt appeals. Affirmed.

Isaac N. Miller, for appellant.

Lorenzo Semple, for respondent.

Semple, for respondent.

The other facts fully appear in the following statement by ANDREWS, J.:

The notice of motion was made in the alternative, demanding that the proceedings should be vacated for the want of notice and other irregularities, or that an issue be awarded to try the fact of lunacy, etc. The court at special term, while denying the relief to vacate, made an order permitting the alleged lunatic to traverse the allegations of the (original) petition in the lunacy proceedings, and directed the trial of the issue before the commissioners appointed therein and by a jury. The lunacy proceedings were commenced in June, 1890, upon the petition of the wife of the alleged lunatic, supported by the affidavit of a physician. The petitioner alleged in her petition that her husband on the 21st day of April, 1890, was seized with a hemorrhage of the brain, resulting in a partial paralysis of the body, and that since said date he ‘has shown continuous symptoms of insanity, and has been at times and frequently since the said 21st day of April, 1890, violent and dangerous to himself and those about him.’ It further alleged that the family consisted of the petitioner and her husband and two sons, all of whom resided in the city of New York, and that her husband owned a house and lot in that city, and was possessed of about $5,000 personal property. The affidavit of the physician attached to the petition confirmed the statement of the petition as to the condition of Mr. Blewitt, and alleged that ‘he shows pronounced symptoms of mental derangement, being excessively emotional, irascible, incoherent, and irrational,’ and he further stated that he considered him incompetent to manage his business or personal affairs. The court, upon the presentation of the petition, granted an order that a commission issue to three persons named, ‘to inquire into the matters set forth in the petition,’ and also as to the value of the real and personal property of the alleged lunatic. A commission was subsequently issued to the persons designated in the order, directing them to inquire, by the oath of good and lawful men, whether ‘James Blewitt,’ etc., ‘is an insane and incompetent person, with or without lucid intervals, by reason of which infirmity he is incapable of governing himself or of managing his affairs,’ etc. They were further directed to cause a jury to be summoned, and to give reasonable notice of the time and place of the execution of the commission to ‘James Blewitt, Julia Blewitt, his wife, Charles A. Blewitt and George A. Blewitt, his sons.’ The inquisition was taken on the 23d day of June, 1890, and it found that Mr. Blewitt was 'an insane person with lucid intervals, but was incompetent and incapable of managing his business or personal affairs, or of properly taking care of his affairs, lands, tenements, goods, and chattels;' and it also found in respect to his property, and who were his heirs and next of kin. The inquisition does not appear to have been formally confirmed, but on the 25th day of June, 1890, an order was made, entitled in the proceeding appointing his wife, Julia Blewitt, committee of the person and property of the alleged lunatic, ‘during his insanity or incompetency, or until another committee shall have been appointed, upon her giving a bond,’ etc. The order purported to have been made upon affidavits of Julia Blewitt and Ed. Hamilton Cahill annexed, ‘and on all the proceedings heretofore taken in the above-entitled matter, certified copies of which are hereto annexed.’ There was no proof in the papers, upon which the order was made appointing the committee, of any notice having been given to the alleged lunatic at any stage of the proceedings; and it is set forth in the affidavit of Mr. Blewitt, on which the present proceeding is taken, that no notice was served on him at any time, and that the first intimation he had that any such proceedings had been taken was in November, 1890. Mrs. Blewitt, in her opposing affidavit in the present proceeding, states that she received from her attorneys who conducted the original proceedings a written notice dated June 21, 1890, directed to her husband, herself, and their two sons, notifying them that the commission would be executed on the 23d day of June, 1890, at 4 o'clock of the afternoon of that day. Her affidavit then proceeds as follows: ‘On Sunday, June 22d, went into her husband's room, and informed him that she had applied to the court to have a committee appointed, so that this property would be secure and the business continue, and that the hearing would take place on the next day at the court-house at four o'clock. Deponent further says that the said James...