
    In the Matter of John Masterson Burke, an Alleged Incompetent Person, Appellant. Almeda E. Winters, Petitioner, Respondent.
    First Department,
    May 22, 1908.
    Incompetent persons — commission de lunático inquirendo—who may petition — facts essential to appointment of committee — discretion of court — appeal to Appellate Division — evidence — facts not warranting appointment of committee.
    By virtue of the statute, any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent, and hence a distant relative may present such petition although not a resident of this State.
    In order to justify the issuance of such commission two things must presumptively appear to the satisfaction of the court: First, that the person proceeded against is incompetent, and, secondly, that a committee ought in the exercise of a sound discretion to be appointed. Incompetency alone is insufficient, for the situation may be such that no committee is necessary.
    The court is required, to exercise a “sound" discretion, which means that special care must be exercised, as a citizen may be deprived not only of possession of his property, but of his personal liberty.
    The Appellate Division may review the discretion of the Special Term in granting an order directing that a commission de lunático inquirendo issue.
    On an application for such commission the Special Term is not limited to matters set out in the petition and affidavits supporting it, but interested parties may be heard in opposition.
    Evidence examined, and held, that the court in the exercise of a sound discretion should not appoint a committee of the property of a man ninety-five years of age who lived in his own home under the care of a housekeeper and others and who had placed his property in. trust with competent persons to pay the income to him for life with remainders over to charitable purposes, even though he was suffering from senile debility and dullness of intellect common to persons of his age.
    
      Appeal by John Masterson Burke, an alleged incompetent person, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of April, 1908.
    
      John M. Bowers, for the appellant.
    
      Howard S. Gans, for the respondent.
   Scott, J.:

This is an appeal from an order of the Special Term directing that a commission de lunático inquirendo issue to inquire into the mental capacity of the appellant John Masterson Burke. The proceeding is prosecuted under the Code of Civil Procedure (§ 2320 et seq.), the petitioner being a distant relative of the appellant, and not even one of his next of kin, although she is one of fourteen heirs at law. She is a non-resident of the State and does not appear to have ever enjoyed any close intimacy with the appellant, except that some ten years ago he extended her aid in taking a normal course to improve her position as a teacher. Under section 2323 any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent, and the petitioner in this matter was, therefore, entitled to present her petition as she has done. By section 2327 it is made the duty of the court to which such a petition has been presented to •either issue a commission or direct the questions of fact to be tried before a jury if it presumptively appears, to the satisfaction of the court from the petition and the proofs accompanying it, that the case is one of a person incompetent to manage himself or his affairs and that a committee ought, in the exercise of a sound discretion, to be appointed. It is to be observed that in order to justify the issuance of a commission two things must presumptively appear to the satisfaction of the court, first, that the person proceeded against is incompetent, and, second, that a committee ought, in the exercise of a sound discretion, to be appointed. It is not sufficient that incompetency alone is established, for it may well be, even where incompetency exists, that the situation and surroundings of the incompetent are such that no necessity exists for the appointment of a committee, and that no good purpose would be served thereby. Whether such a committee should be appointed is, therefore, left not merely to the discretion, but to the sound discretion of the court, a phrase indicating the necessity for especial care in the exercise of this discretion in a proceeding calculated to deprive a citizen not only of the possession of his property, but also of his personal liberty, and it is by no means true that every case of mental weakness or impaired intellectual power will justify the court in exercising the power vested in its sound discretion. (Matter of Morgan, 7 Paige, 236; Matter of Shaul, 40 How. Pr. 204; Matter of Clark, 175 N. Y. 139.) The Special Term deem the present case one in which the discretionary power of the court ought to be exercised, and it is suggested that since the granting of the order rested in its discretion we should not review it. The discretion specified in the Code is, however, the discretion of the Supreme Court, and not of any one part or term thereof (Lawson v. Hilton, 89 App. Div. 303), and when an appeal from a discretionary order is brought up to this branch of the court, the party appealing is, entitled to have the order reviewed, and a refusal to entertain the appeal and to pass upon its merits merely because it involved a question of discretion would be error. (Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215 ; Jemison v. Citizens Savings Bank, 85 id. 546 ; Bassett v. French, 155 id. 46.) The learned justice before whom this application came at Special Term considered that he was precluded from considering anything except the petition and the affidavits submitted in its support. With this view we are unable to concur. The Code (§ 2327) requires the court to act upon the petition “.and the proofs accompanying it,” but this should not be limited to the petition and the proofs supporting it. Section 2325 requires notice of the application to be given to the husband or wife, if any, or to one or more relatives of the alleged incompetent, unless sufficient reasons, which should be strong ones, are shown to exist for dispensing with such notice, and although the statute does not so state, it is also necessary that personal and written notice shall, in general, be given to the alleged incompetent. (Matter of Blewitt, 131 N. Y. 541.) It would be an idle form to give notice to the persons thus specified, if they were nou to be heard in response to the petition, and when the serious responsibility is' cast upon the court of determining whether or not a person should be deprived of his liberty and of the control of his property, no assistance should be refused from those entitled to be heard, which will aid the court in exercising its sound discretion. Keeping in mind these general principles it becomes our duty to consider whether or not the granting of the order appealed from was a wise exercise of the discretion vested in the court. The appellant is a very old man, ninety-five years of age. He resides and has resided for more than twenty years in a home owned by him in New Y orle city where he is cared for by a housekeeper who has been a member of his household for a number of years, by a maid servant and by a male nurse. The only direct-,evidence as to his mental condition 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 such dullness of memory and intellect and such physical disability as is found, not infrequently, in persons of very advanced age. He is unmarried, and has no children or near relatives, or, so far as appears, any relatives whom he is- bound by any ties to support. There is absolutely nothing to show that he is not well cared for and comfortable. So far as his personal condition and surroundings are concerned, there is nothing whatever from which it may be inferred that any change is desirable, or that the intervention of a committee is necessary. So far as concerns his property, it appears that in the year 1902 he conveyed his considerable estate to himself and four very well-known and highly competent trustees by a deed of trust for the purpose of founding a charitable organization, with the proviso that he should receive the income of the property during his life, and that none of the property should be sold or conveyed during his lifetime without his consent. By tins means he not only provided for the ultimate establishment of a worthy' charity, but relieved himself of all care and responsibility' with respect to the management of the property, while at the same time he assured himself of a sufficient income for his needs. It requires, therefore, no committee to care for his property, and there is no suggestion that his income is wasted or misapplied.

We have presented,-therefore, the case of an old man who has so disposed of his property as to assure himself that it will be devoted to the purposes to which he desires it to be put; who has relieved himself of its care, and jet has assured a sufficient income while he lives; who is passing his declining years in the surroundings and companionship which he chose for himself while he was yet a much younger man ; who is apparently well cared for and comfortable, and whose income is not even alleged to be misspent or wasted. In our opinion upon this state of affairs, it would not be the exercise of a sound discretion to disturb the peaceful serenity of this carefully planned and comfortably spent old age, and no necessity is shown for further inquiry into the appellant’s mental condition, or for the appointment of a committee.

The order appealed from must, therefore, be reversed, but, since the petitioner was probably actuated by no improper motive, without costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed and proceeding dismissed, without costs.  