
    (64 Misc. Rep. 118.)
    In re ROBERTS.
    (Otsego County Court.
    June 22, 1909.)
    Insane Persons (§ 12)—Inquisition—Petition.
    Prom a petition for appointment of a committee supported by affidavit, alleging that a person is 92 years old, weak in mind and body very decrepit, so far deprived of reason and understanding as to be unfit to-care for herself or manage her affairs, that her memory is not good, and that she is easily persuaded, it presumptively appears that the person is incompetent to manage herself and affairs, so as to make it the duty of the court, under Code Civ. Proc. § 2327, to order issuance of a commission for inquiry into her incompetency.
    [Ed. Note.—For other cases, see Insane Persons, Cent. Dig. § 20; Dec. Dig. § 12.]
    In the matter of Mary A. Roberts, an alleged incompetent person.
    Commission ordered to issue.
    Gibbs, Wilber & Gibbs, for the motion.
    W. H. Johnson, opposed.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Rep’r Indexes
    
   KELLOGG, J.

This is an application for. the appointment of a committee of the person and property of Mary A. Roberts, or that a commission issue out of this court to inquire into the question of the alleged imbecility of said. Mary A. Roberts. It would appear that the sole question to be determined here is as to whether it presumptively appears to the satisfaction of the court, from the petition and proofs accompanying it, that a committee ought, in the exercise of sound discretion, to be appointed over the person and property of the said Mary A. Roberts. If it does so appear from the papers presented, it is mandatory that one of two things shall be done: (1) That a commission issue as prescribed in section 2328 of the Code of Civil Procedure to one or more satisfactory persons designated in the order; or (2) that the question of fact arising upon the competency of the person be tried by a jury at a trial term of the court. Code Civ. Proc. § 2327.

In response to the petition, no assistance should be refused from those entitled to be heard which will aid the court in exercising its sound discretion. In Matter of Burke, 125 App. Div. 891, 892, 110 •N. Y. Supp. 1004. Where the only evidence as to the mental condition of the alleged incompetent 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 dullness of memory and intellect, and such physical disability as is found not unfrequently in persons of very advanced age, it does not presumptively appear that a committee should be appointed; hence a court, in its sound discretion, should dismiss the application. Matter of Burke, 125 App. Div. 889, 110 N. Y. Supp. 1004. The court should not hear the merits on affidavits, but must send the matter to a commission or a jury; and this, although, upon all the affidavits on both sides, the court be of the opinion that, if such were the evidence given upon the proceeding, it should be dismissed, or the finding of incompetency be set aside. Matter of Milschsack, 43 Misc. Rep. 586, 89 N. Y. Supp. 524. It is the duty of the court, if it presumptively appears, from the petition and proof accompanying it, that the person proceeded against is a person incompetent to manage himself and his affairs, to order an investigation as to whether or not such incompetency exists. Matter of Beach, 23 App. Div. 419, 48 N. Y. Supp. 437.

A petition and accompanying affidavits in a proceeding for the appointment of a committee for the person and estate of an alleged incompetent, which alleged that the alleged incompetent is incompetent to manage himself and his affairs, and is of weak mind and easily worked upon by any persons who obtain a controlling influence over him, are sufficient under the statute (Code Civ. Proc. §§ 340, 2327) to call into exercise the jurisdiction of the County Court of the county in which the alleged incompetent resides, and to justify the inquiry through a commission. In Matter of Clark, 175 N. Y. 139, 67 N. E. 212. The petition here avers:

“Th"at the-saifl Mary A. Roberts is weak in mind and body, and is so far deprived of reason and understanding as to be unfit to care for herself or manage her affairs. That the said Mary A. Roberts is of the age of 92 years, and very decrepit. Her eyesight has become impaired, and she is physically weak in mind and body, and her memory is not good, and she is very easily pursuaded, and she is physically and mentally weak.”

The petition, which is duly verified, is also accompanied with the affidavit of Seymour S. Kilburn, which substantiates the material allegations set forth in the petition. The conclusion .is therefore reached that it presumptively appears that a committee should be appointed of the person and estate of Mary A. Roberts, and that the petitioner is entitled to an order for a commission to issue herein in due form of law.

Let a commission, therefore, issue herein, as prescribed by section 2328 of the Code of Civil Procedure, to one or more fit persons designated in the order to be agreed upon by the attorneys for the respective parties.

Ordered accordingly.  