
    In the Matter of RICHARD BECKWITH, a Lunatic.
    
      Lunatic—contract with—when sustained—implied contract to pay for necessaries— Costs of application on behalf of, or to trmerse commission—when not granted.
    
    A contract with a person not known to he of unsound mind, and who has not been found, upon a commission de lunático inquirendo, to be insane, may be sustained, if it shall be proved to have been fairly made, and without advantage having been taken of the lunatic.
    Neither money advanced, nor compensation for services rendered to a lunatic, can be recovered fi'om him, if the circumstances were such as to put the party upon inquiry as to his mental condition.
    The law will imply a contract on the part of the lunatic to pay for necessaries furnished for the support of himself and family.
    In proceedings to have a person declared a lunatic, or to traverse or supersede the commission, the costs rest in the sound discretion of the court, and will not be granted unless the proceedings are instituted for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith.
    Appeal from an order overruling the exceptions to a referee’s report, and confirming the same.
    In 1843 Richard Beckwith became insane, and was sent to the asylum at Htica for treatment. He remained there between one and two years, at the end of which time he was permitted to return to his home, in Jefferson county, his mind having improved; but he was not cured. Becoming worse again, he was returned to the asylum, and was again permitted to return home, improved in health, hut not cured. This was repeated several times. At last, in 1854, he was taken to the asylum, and has not since been permitted to return home; and, in the opinion of Dr. Gray, the superintendent, and the assistant physicians of the asylum, Beck-with is insane, without lucid intervals, and has been, since he was last admitted to the asylum. When not excited, he is entirely harmless; and, until some of his delusions get possession of his mind, he talks quite rationally. But these delusions have never been removed, and, at his advanced age, it is -not probable that they ever will be. One of these delusions is that he owns the State; another, that he has occasional interviews with the Almighty.. During the rebellion, he told the officers of the asylum that he had the power to terminate the war, and would do so if he was permitted to go to Washington ; and, to do it, he would take command; and, with a body guard of women, he would put an end ■ to it in a very short time. All his delusions are not as extravagant as these, but they all indicate a disordered intellect that precludes the idea that he was, when the proceedings in this matter were instituted, sane, or ever can be.
    In 1854, a commission de hmatioo inquirendo was issued and executed, and he was found to be of unsound mind, and his son was appointed committee of his person and estate.
    In February, 1871, one C., a counselor of this court, prepared a petition for Beckwith to sign, alleging his sanity, and praying that the proceedings, by which he was found to ’ be a lunatic, be set aside, and his property restored to him. This petition was signed by Beckwith by making his mark, and it was verified before a notary public. It was accompanied by the affidavits of one or more physicians, and of several non-professional persons, averring their belief of his sanity, and capacity to manage his affairs. The committee opposed the motion, on affidavits of Dr. Gray and the assistant physicians in the asylum, who were intimately acquainted with Beckwith, some of them having personal charge of him and prescribing for him, alleging him incurably insane. The court , made an order referring it to O. S. Williams, Esq., to take proofs as to the sanity of said Beckwith, and he was directed to report the evidence taken by him to the court, with his opinion thereon. He returned the evidence, with his opinion that Beckwith was insane, and that he ought not to be set at liberty. The proofs fully sustain the conclusion at which the referee arrived. The report was confirmed, and the motion denied. While this reference was pending, an application was made by 0. to Dr. Gray, to permit certain physicians to see and converse with Beckwith, with a view to enable them to testify before the referee as to his sanity. The doctor refused, because such examination excited Beckwith, prevented sleep, and affected injuriously his health, until the court should direct him so to do. C. applied for and obtained such an order,' and the physicians saw and conversed with Beckwith.
    C. also applied to the court to compel the committee to render an account, none having been rendered since his appointment, and also to compel him to acknowledge that he held in trust, a house and lot which he had purchased for the use of the family in Watertown, and the title to which he took in his own name. These orders were granted, an 'account rendered, and the existence of the trust admitted.
    After these proceedings were concluded, C. applied to the court for an order requiring the committee of B. to pay him for his services and expenses in these proceedings, amounting by his bill to $1,500. The court made an order referring it to Judge Mason to inquire and report what sum should be allowed to 0. for his services, with the evidence taken by him, and liis opinion thereon. The referee heard the proofs and allegations of the parties, and reported that C. ought to be allowed $858.63. Exceptions were taken to the report, which were overruled, and it was confirmed ; and from the order overruling the exceptions and confirming the report, this appeal is taken by the committee. C. was allowed some ninety-five dollars, for services in proceedings to compel the committee to account, and to acknowledge that he held the title to the house in Watertown, in which the family of said Beck-with resided. This sum the committee paid.
    
      T. T. Spriggs, for the appellant.
    '---for the respondent.
   Mullin, P. J.:

A contract with a person not known to be of unsound mind, and who has not been found, upon a commission de ImnaMeo vnquwendo, to be insane, may be sustained if it shall be proved to have been fairly made, and without advantage being taken of the lunatic. But neither money advanced, nor compensation for services, can be recovered against a lunatic, if the circumstances were such as to put the party upon inquiry as to his mental condition,, by the reasonable pursuit of which his unsoundness of mind might have been discovered,

It was held in Fitzhugh v. Wilcox, that after inquest and the appointment of a committee, all contracts by the lunatic are abso-

lutely void. These propositions are subject to this modification: that the law will imply a contract on the part of the lunatic to pay for necessaries for the support of himself and his family. The case that has gone the furthest of any that I can find, in holding the estate of the lunatic bound by contract for services, is Wentworth v. Tubb. In that case the lunatic had employed a solicitor to traverse an inquisition of lunacy, and he was unsuccessful. He applied to the vice-chancellor for an an order directing the payment of his costs out of the estate. The application was allowed, the vice-chancellor saying, although allowed in that case, yet, “if anything fraudulent or unfair — or, perhaps I may go as far as to say frivolous or litigious— appears to have taken place on the part of the solicitor, the court may say that no debt arises.”

0. says he was retained by B., and by no one else. He neither consulted with the committee nor any member of his (Beck-with’s) family. They knew his condition, and could have informed him whether it was either wise or safe to set him at liberty. Dr. Gray, or any of the physicians or attendants in the asylum, could have disclosed to him B.’s mental and bodily condition, and the prospect, if any, of his restoration to health. No one was consulted, nor any effort whatever made to learn the truth in regard to B.’s condition, before an expensive, tedious, and to the children and friends of the family, painful litigation was begun. C. had' lived neighbor to Beckwith; knew he had been insane for years, and that it was necessary to send him to the asylum. He saw him repeatedly after he (0.) removed to Htica, and could not but know from his conversation that his mental condition was not improved.

He (G.) admitted to Dr. Gray, after proceedings were instituted, that he knew B. was insane, but justified his conduct- because he thought he might be set at liberty, and permitted to enjoy his property, and ought not to be longer detained. With this knowledge, it was shameful to act upon the retainer of B.it it was a fraud upon his family, a fraud on the court, and a prostitution of the forms of law for his own personal, pecuniary benefit, without a single chance of benefit to the client. Knowing B. to be hopelessly insane, he induced professional and non-professional persons to swear that he (B.) was, in their opinion, of sound mind and capable of managing his own affairs. These persons had only a very slight acquaintance with B.; had never seen him when laboring under one of his delusions; and honestly, I have no doubt, believed him-to be sane. C. knew better; and he presented their affidavits to the court, as being true, when he knew they were not.

When the fact was disclosed to the court, that it had been so shamefully imposed .upon, it owed it to itself, to the public, and especially to the unfortunate subject of the litigation and his family, to punish the person who did it. If such conduct is permitted to go unpunished, no insane person, no idiot, no infant who has property, is safe. There are, and always will be, men hanging on to the skirts of the profession, ready and willing to take advantage of the affliction that God in his providence has laid upon the idiot and lunatic, to seize upon and appropriate their property to their . own use, regardless alike of the laws of God and man, and of all sympathy for those who are déprived, by their villany, of bread to eat, and clothes to wear.

There was no" contract for the services of 0. which can be charged on his estate; but if there was, the court will not enforce it, because the services were not for the benefit of the lunatic, and C. was guilty of fraud, as well in procuring the employment, as in the conduct of the proceedings.

It remains to inquire whether the court will, in the exercise of its discretion, direct the payment of any sum whatever to 0., as compensation for his services.

In the matter of Catharine Cumming it was held, that it was a matter of right for a person, found to be a lunatic upon commission, to traverse the finding, but the court would, nevertheless, exercise control over the matter, for the protection of the lunatic and his estate, and would satisfy itself that the proceeding was in good faith, and that the lunatic, when he seeks to traverse the finding, is competent to judge qf what he is doing, and is really desirous that the traverse shall issue.

This rule applies to applications by the lunatic to supersede the commission, as well as to applications for leave to traverse it. And had such an investigation been had in this case, this litigation might have been prevented. It must not be inferred from these remarks, that I intend to cast any reflections upon the action of my brethren who have taken part in these proceedings. The papers accompanying the petition were sufficient to disarm suspicion, and to induce the court to order a reference to ascertain the actual condition of Beckwith. It was not the fault of the court that counsel deceived it, and imposed upon it affidavits as true, which he knew were untrue, although not known to be 'so by those who made them. A personal examination in conformity to the English practice, would have enabled the court to detect the imposition, and thus quash the proceedings at the very outset.

Costs are not granted against a person who institutes, proceedings to declare a person a lunatic and fails in them, if the prosecution has been in good faith. The same rule is applied when the attorney-of the lunatic fails in an application to traverse or supersede the commission, Indeed, the question of granting or refusing costs, rests in the sound discretion of the court, and they will not be granted unless the proceedings are for the benefit of the lunatic, and are instituted and prosecuted fairly and in good faith. In re Conklin, a solicitor appeared for Conklin (against whom proceedings had been commenced to declare him to be a person of unsound mind), to oppose the same, but Conklin was found to be a lunatic at the time of the retainer of the solicitor. The solicitor applied to the court for an order directing the committee to pay him his costs, incurred in such proceeding. The chancellor held the solicitor entitled to his taxable costs. He says: “As the person against whom the commission issued has been found to be a lunatic at the time of the retainer of the petitioner, the latter has no claim against the estate on the groiind of contract, as he is not- a creditor of the lunatic, who was incompetent to make a valid contract to pay him for opposing the commission. And, as a general rule, the court will not allow the costs of an unsuccessful opposition, as the party who is really a lunatic is not benefited thereby. This court may, however, in its discretion, allow costs for opposing the commission, where the fact of the lunacy is so much in doubt, that the chancellor would have directed and sanctioned such opposition if an application had been made to him in the first instance. In this case, it appears from the petition, that there were reasonable grounds for believing that the party proceeded against was not a lunatic; and the committee do not appear to oppose this application, as it was their duty to do if they believed the allegations in the petition to be incorrect.”

In no view of the case is the attorney entitled to costs; on the contrary, he should be compelled to pay the costs and expenses which the committee has been put to by reason of this most unjustifiable and unnecessary proceeding. It is only by inflicting severe punishment upon attorneys who use the courts of justice to strip their clients who are incapable of protecting themselves, that they and their families can be protected against forays upon their property.

It may be said that the order of the court, referring it to Judge Mason to inquire and report what sum should be allowed G. for his services, was virtually an exercise of the discretion of the court, and an allowance to the attorney of the costs of the. proceedings. If the order of reference could be held to have the effect of allowing the attorney costs, it should b'e satisfied, in view of the facts disclosed in this case, by allowing him six cents, and no more, the amount resting entirely in our discretion in reviewing the order of confirmation. But if the order is to be held to allow the attorney costs, it was improvidently granted, being in violation of the long settled practice of the court in such cases. Courtesy should not constrain us to impose upon the estate of the lunatic so oppressive and unjust a burden, as the allowance of the sum awarded by the referee would be. In making this disposition of the case, we are not to be understood as reflecting in the slightest degree on the action of the referee. He was not at liberty to inquire into the character of the proceedings, or the motives that prompted the attorney to action. He was to inquire what the services rendered were worth, assuming them to be honest and fair, and we have no reason to find fault with the amount he has awarded to the attorney, if he is equitably entitled to anything, which he is not.

Exceptions to the report of the referee are allowed, and the order of confirmation reversed, with ten dollars costs, to be paid by C. to the committee or his attorney ; and the motion for confirmation is denied, and the order of reference vacated.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly. 
      
       2 Kent’s Com., 451, and note (1).
     
      
       2 Kent’s Com., 451, note; Lincoln v. Buckmartin, 32 Vt., 52.
     
      
      
         12 Barb., 235.
     
      
       Wadsworth v. Sherman, 14 Barb., 169.
     
      
       3 Younge & Col., 537 (21 Eng. Ch., 587).
     
      
       50 Eng. Ch. (1 De G., M. & G.), 537.
     
      
       Brower v. Fisher, 4 J. C. R., 440.
     
      
       In the Matter of Folger, 4 J. C. R., 169.
     
      
       In re M’Olean, 6 J. C. R., 440; In re Tracy, 1 Paige 580; In re Van Cott, id., 489.
     
      
       8 Paige, 450.
     