
    In the Matter of Ann Eliza Owens, an Idiot.
    The mother of an alleged idiot applied to have her declared non compos mentis, and this having- been done, she made application to have a committee of the person and estate of the idiot appointed, and upon her consent the clerk of this court was appointed such committee. A sister of the idiot then applied to have the order appointing the committee vacated, on the ground that she had not had notice of the proceeding's. Held, that the proceedings were regular without notice to her, and that as there was no personal objection to the committee, he would not be removed, especially as the court was satisfied, on an examination of all the proceedings, that they were in good faith and for the benefit of the idiot.
    Appeal from an order of this court, made at special term.
    One Francis Owens dying in 1868, by his will gave all his property (in which was included certain real estate) to his wife, Ann Owens, for her life, and on her death three-quarters thereof to his daughter Ann Eliza Owens, and the remaining one-quarter to his daughter Sarah Ann Owens.
    In May, 1873, Ann Owens applied to have her daughter Ann Eliza declared an idiot, and on a commission duly issued for that purpose she was so declared. Of this application no notice was given to Sarah Ann Owens, who was then the wife of "William J. Suttie.
    Ann Owens then applied to have a committee of the person and estate of the idiot appointed, and filed a consent that Nathaniel Jarvis, Jr., the clerk of this court, might be appointed such committee, and he was thereupon appointed. No notice of this application was given to Mrs. Suttie, the idiot’s sister
    The committee then made application to this court to be allowed to sell certain real estate in which the idiot, under the will of Francis Owens, her father, had a remainder, subject to a life estate in her mother, and a reference as to the propriety of the sale was ordered. The idiot’s sister, Mrs. Suttie, then moved, at special term, to have the appointment of Mr. Jarvis as committee set aside, on the ground that all the proceedings were irregular, having been without notice to her, and alleging that the object of the proceedings was to have the idiot’s real -estate sold in the interest of the life tenant. The court denied the motion to vacate the appointment of the committee, vacated the order of reference as to the sale of the real estate, with leave to the committee to apply again on notice to the idiot’s sister.
    From so much of the order as denied the motion to vacate the order appointing the committee, Mrs. Suttie appealed.
    
      Coles Morris and Michael H. Cardozo, for appellant.
    The appointment of a stranger as the committee of the estate and person of an idiot, without the request of the relatives and next of kin of the idiot, and without a reference, and without notice to persons prospectively interested in the estate, is irregular, and unauthorized by the practice of the courts having jurisdiction of such matters (Lamoree's Case, 11 Abb. Pr. 274; Ex parte Le Heup, 18 Ves. 221; Van Santvoord’s Eq. Prac. vol. 2, p. 368; Re Meux, 2 Coo. t. Cott, 106, 107, J. V.; Phillips on Lunacy, 274; Shelford on Lunacy, Law Library, 84). The heir, or a person having an interest in the estate, or a relative of the person of unsound mind, is generally preferred to a stranger in such committeeship (Phillips on Lunacy, 278-281, and authorities there cited; Shelford on Lunacy, 2 Law Library, 88 r Stock on Non compos mentis, 25 Law Library, 71). A female is always preferred as the committee of the person of an insane unmarried female (Phillips on Lunacy, 279; Ex parte Ludlow, 2 P. Wms. 638). The wishes of the person non compos mentis always have weight; even unfounded prejudices are not disregarded (Phillips on Lunacy, 279, and cases there cited). The old rule which excluded, as-a matter of course, the next of kin from the pffiee of the committee of the person, whenever such next of kin was also heir to the idiot’s estate, has long been exploded, as being unsuited to any but the most barbarous times (Dormer's Case, 2 P. Wms. 263 ; Ex parte Ludlow, Id. 638; Ex parte Cockayne, 7 Ves. 591; Matter of Livingston, 1 Johns. Ch. 436). The “ next heir,” even when the old rule did prevail, was given the preference as committee of the estate of the idiot, it being clearly his interest, by good management, to keep the-estate in good condition, accountable always to the proper-court (Black. Com. vol. 1, p. 305). The real estate of the-late Francis Owens, upon the death of Ann Eliza Owens, the-idiot, will descend in fee to Sarah Ann Suttie, the sister of said! idiot, subject only to the life estate of their mother, Ann Owens (1 R. S. 751, § 6).
    
      E. J. Pattison and Charles M. Marsh, for respondent.
   Daly, Chief Justice.

This is an appeal from an order denying a motion to vacate an order appointing Nathaniel Jarvis, Jr., the committee of the estate of the idiot, upon the ground that the idiot’s sister, Sarah A. Suttie, who is a tenant in common with the idiot of real estate under the will of their father, had no notice of the proceeding by which Mr. Jarvis, upon the consent of the idiot’s mother, was appointed committee of the person and estate, or of the proceedings by which Ann Eliza Owens was found to be an idiot.

It is not denied but that she is an idiot, nor is the finding of the inquisition by which she was so declared questioned. It is insisted, however, that it was irregular to appoint a stranger the committee of her person and estate without 'notice to the sister, who is a tenant in common with her in the reversionary estate, and who, in the event of the idiot’s death, would, if surviving, be her heir.

I know of no authority, and none has been referred to, holding that it is irregular to appoint a stranger the committee of the person and estate of an idiot or lunatic without notifying those who, as next of kin, will succeed the idiot or lunatic as heir. Judge Brown held very properly in Lamoree's Case (11 Abb. Pr. 274) that an order appointing a stranger the committee of a lunatic, where the next of kin did not assent or unite-in the petition, was improvidently granted. But that is not this case. The mother of the idiot, who is her next of kin, instituted the proceedings by which her daughter was declared non compos mentis. It was upon her petition that the proceedings were founded, and it was at her request and upon her-written consent that the court appointed Mr. Jarvis the committee. Judge Brown says that if the next of kin do not assent or unite in the petition, there should be an order of reference of which they should have notice, that they may have an opportunity to propose themselves as the committee, in all of which-I fully concur; but here the next of kin—-the mother—-did assent. I also recognize the propriety, to prevent abuses, of notifying those relatives who may succeed as next of kin of the proceedings, that they may have the opportunity of proposing-themselves as the committee; for, although it is not a matter-of course to commit the guardianship of the estate of an idiot, or lunatic to those who are presumptively entitled to it upon: the idiot or lunatic’s death (Matter of Taylor, 9 Paige, 611),. they may, under certain circumstances, be regarded as the: proper persons to whom to commit the custody of the estate, as-, those who are most likely to protect it from injury or loss.1 If. we had nothing before us upon this appeal but the fact of the. appointment of a stranger, without notice to the sister, who, if she survive her mother and the idiot, will inherit the whole of the estate, I should, in view of the possibility of abuse, hesitate to affirm the order; but, looking at all the facts which were before the judge and are before us upon this appeal, I think he. did right in denying the m'otion.

F. Owens, by his will, left all his property, real and personal, to his wife, the mother of the idiot and of her sister, during her (the wife’s) natural life, and upon her death, he directed that it should be divided between his two daughters, three-quarters of the whole to the idiot, and the remaining one-quarter to her sister, Mrs. Suttie. The idiot is now twenty-four years of age. She has been entirely helpless from her birth, and the mother has at her own expense continuously taken care of this helpless creature from her infancy. The sister, Mrs. Suttie, has no property except the household furniture given her by her mother and the interest before referred to in her father’s estate after the death of her mother, and her husband is a man of small means, depending upon his labor as a jeweler for support. She is also a person physically weak, at all times, •in bad health, from time to time requiring the care of her mother, and has not sufficient strength to take the necessary-care and charge of her sister, who requires constant personal care and attention, It is, in view of these circumstances and of the event, as the mother states, that she may herself be taken away by death, that she sought by this proceeding to provide that her helpless offspring might be left in the care of a competent and fit person, who would conscientiously look after her interest, comfort and welfare, and it was in this view and with this assurance that she petitioned this court for the appointment of a committee, and filed her written consent that the clerk of the court, Mr. Jarvis, might be appointed. Mo objection is taken as to the propriety or fitness of the selection of Mr. Jarvis. Any objection to him personally was disclaimed upon the argument, the objection being to the appointment of any stranger in preference to the sister, or without notice to her of the proceeding. There being no objection to Mr. Jarvis personally, her motion to vacate the order appointing him, it must be assumed, was made with the intention of proposing herself to the court as the proper person to be appointed the committee of her sister’s person and estate.

She says, in her affidavit, that her mother kept all the proceedings in the matter secret from her, and that she had no knowledge of the inquisition or of any of the proceedings anterior to the appointment of Mr. Jarvis; that the proceedings are not for the interest of her sister ; but that her mother is confederating with others to procure a sale of a portion of her and her sister’s estate, at a sum much less than the real value of it, with the object of dividing up the proceeds of the sale in such a manner as to secure to her mother a larger interest than she would otherwise have under the will.

The mother’s affidavit is a complete and satisfactory answer to this charge. A considerable portion of it has been already stated, in addition to which it appears by it that her husband left by his will two houses, one in Eightv-first street, where she and Mrs. Suttie reside, and one in Wooster street. That the rent of the Wooster street house is $1,000 per annum, nearly one-half of which is consumed in the payment of taxes and other expenses ; that the building is dilapidated and nearly worthless, and is used by the tenant for a carpenter shop, whilst the lot could be sold for $23,000, which explains the heavy tax upon premises yielding, in consequence of the dilapidated building that is upon them, so small an income; that the rents derived from that and such portions of the house in Eighty-first street as can be rented, are all that she has, and that it is with difficulty that she can support herself and her idiot child ; that both of these houses were bought with her own money, the savings of many years of hard labor and a very trifling assistance from her husband, and that when purchased the title was, upon her suggestion, taken in her husband’s name, and that she does desire that a portion of the real estate should be sold, believing it to be for the common interest of all parties, which is certainly true in respect to the Wooster street lot, which if sold for its alleged value, would yield a fund, the income of which, properly invested, would be nearly double the amount of what is now derived from the premises. These facts need no comment. They show that what the mother has done and wishes to have done is founded in an intelligent view of the circumstances and the due care in the future of her invalid child.

So far- from seeing in the circumstances any reason why this order should be set aside, that this daughter might be made the committee of the person and estate of her idiot sister, they show that she would be an unfit person to be intrusted with the charge either of the person or of the estate. I had occasion in the Matter of Bomanjee Byramjee Colah, 3 Daly, 529, to examine very carefully the nature of the peculiar jurisdiction exercised in the appointment of a committee to take charge of the person and estate of a lunatic, and pointed out, upon the authorities there quoted, that care has always been taken not to intrust the custody of the person or estate to those who may be pecunarily benefited by the lunatic’s death, or whose interest it is to keep his property from diminishing, unless the court is satisfied that it would be to his advantage that those who stand in the relation to him of blood and natural affection should have the custody and care of him, and that as respects his estate, the governing principle in its management 'as liis interest, and not that of those who may have eventual .rights of succession (Eunice Salisbury's Case, 3 Johns. Ch. 347). Acting upon this rule, it would nothin my judgment, be for the idiot’s interest that the sister should be the committee of the person or of the estate. So far as respects the care of the person, Mr. Jarvis, as was said in Justice Dormer's Case (2 P. Wms. 263), is but a nominal person, as the idiot will, as long as •her mother lives, be in the charge of the parent who has •hitherto supported and taken care of her; and as respects the property, it cannot be disposed of without the concurrence of the court, and as the order below has provided that the sister ■ shall have notice of all further proceedings, she will have the ■opportunity of appearing before the court and objecting to anything proposed to be done, which may affect injuriously her • own or the idiot’s interest in the property. No good that we •can see would be promoted by disturbing the present state of •things. The only object could be to transfer the custody of the idiot from her mother to that of her sister, and as respects the estate, to intrust the sister with the care and management of it, neither of which would be, in my opinion, to the benefit of the idiot. At least nothing has been disclosed that shows that it would be for her interest. The order should therefore be affirmed.

Loew, and J. F. Daly, JJ., concurred.

Judgment affirmed.  