
    Matter of Proving the Last Will, Etc., of Annette Wagner Haynes.
    (Surrogate’s Court, New York County,
    September, 1913.)
    Wills — proceedings upon probate — allegation of petition for probate as to mental incompetency — special guardians.
    Where the daughter, the only heir at law and next of kin of testatrix, successfully traverses the allegation of the petition for probate that she is mentally incompetent to protect her rights, although not judicially declared to be an incompetent, an order appointing a> special guardian for her will be revoked so as to enable her to appear in person or by attorney upon the proceeding to probate the will.
    
      Motion to vacate the general orders of the surrogates of this county designating a person in this proceeding to receive citation and appointing such person as special guardian in this proceeding of the alleged incompetent daughter of testatrix; and' also to strike out of the said petition for probate an allegation to the effect that such daughter, the only heir at law and next of kin of testatrix, “ is mentally incompetent to protect her rights, although not judicially declared to be incompetent to manage her affairs.”
    Halstead H. Frost, Jr. (James W. Osborne, of counsel), for motioner, the only child and heir at law of testatrix.
    Edward H. Lockwood, for the proponent, the executor named in the will offered herein for probate.
    Elwo'od J. Harlam, special guardian.
   Fowler, S.

This motion is of grave importance, as it goes to the surrogate’s jurisdiction of a common proceeding in this court pursuant to the Code of Civil Procedure. When proponent of a will has reason to believe that a party entitled to be cited is incompetent a resort to the method pursued here is common practice in this court. In this proceeding the daughter of testatrix thus alleged to be incompetent now comes into court and traverses the aforesaid allegation of the proponent’s petition, and by affidavits supporting the traverse presents a serious question of fact for my determination. Is she or is she not incompetent? Counsel for the motioner also question the power of the surrogate to make an order designating a special guardian or thus to deprive a party of a right to appear in person or by counsel in such a proceeding as ■ this. The gravity of the question attracted my attention on the argument, and I have reserved my decision for some time in order to examine it with due deliberation.

It is a very singular fact in this proceeding that after a somewhat earnest and extended oral argument the briefs submitted to me on either side, and for the special guardian as well, do not cite a single adjudication ; four briefs without a citation are unusual in this court. The contentions of the briefs are made up of unsupported general propositions and yet some of these are of serious intrinsic weight in view of a long practice in this court, which may tend to deprive a party in this court of a substantial right.

I take it that the right of a person to be heard in any proceeding affecting his liberty or estate is incontestable in our jurisprudence, and from the earliest times the common law and the course of the legislation in common law states has guarded sedulously the right of persons accused of incompetency of any kind to traverse the inquisition or other proceeding in the. nature of one de lunático inquirendo. I cannot think for an instant that the comparatively recent legislation embodied in the Code of Civil Procedure and affecting this court’s jurisdiction over incompetents was intended to introduce any revolutionary principle in respect of proceedings affecting the estates or persons of those asserted to be incompetent.

For my own satisfaction, I have again examined the statutes of this state relating to proceedings against persons alleged to be of unsound mind, from the very beginning of our independent government, and, indeed, statutes enacted before that epoch, and I must say that I have found them entirely consistent with the ancient common law principles of liberty and with the right to contest such proceedings established in common law countries. The statutes in the main are re-enactments of provisions found in older statutes or in the text of the common law itself.

Under the old jurisprudence the chancellor, not ex virtute officii, hut under the sign manual as representing the crown, had jurisdiction, or the right of administration, of the estates of incompetents. It is necessary to notice that it was always made a question whether the chancellor or even the crown had such jurisdiction until after an inquest found which involved the finding of a jury. It is, however, unnecessary to review at length the ancient practice on this subject as it is sufficiently apparent in the older hooks of authority. We find the statutes of this state immediately after our independence of the crown supplied to the chancellor the want of a delegation by sign manual, and invested him as chancellor, and ultimately the county courts as well, with a jurisdiction over those mentally incompetent. Laws of 1788, chap. 12; 2 J. & V. 196; 1 R. L. 147. This legislation crept into the Revised Statutes (2 R. S. 52) and ultimately into the Code of Civil Procedure. After the year 1846 the Supreme Court succeeded ultimately to the general jurisdiction of the chancellor over incompetents. At all times the ancient practice in such matters in this state corresponded very generally with the practice of the Chancery Court known to the common law. 2 Barb. Ch. 226, et seq., and particularly the decisions.

While it was always necessary to proceed to an inquisition by commissioners and a jury “ venire facias juratores ” in a contested proceeding to establish lunacy, yet chancery seems at times to have taken cognizance of mental incompetency without such formal adjudication. In Nelson v. Duncome, 9 Ves. 211, the Master of the Rolls took occasion to review the law on this very point, authorizing chancery to appoint a guardian for one alleged to be incompetent and yet not so formally adjudicated. It will suffice to point out that the Master of the Rolls affirmed the power of the court to protect those who were mentally incompetent, even though no regular adjudication to that end had been found. It is only necessary to indicate that the recent legislation of this state, to which I shall refer, goes no further than this decision. It seems to me that the framers of the statutes authorizing the surrogates to designate persons to receive citations and to appoint special guardians for alleged incompetents must have had this very distinction in mind. Laws of 1872, chap. 693; Code Civ. Pro., §§ 2527, 2530. I do not find, as asserted by the motioner’s counsel, that section 2528, Code of Civil Procedure (providing that a party of full age may, unless judicially declared incompetent to manage his affairs, prosecute or defend in this court in person), is inconsistent with the power conferred on this court by the other sections of the Code and designed to protect persons incompetent but not judicially so declared. A careful analysis of the various sections of the Code will show, I think, that they apply and are intended to apply to different states of fact. But I will not dwell on this point as it is not now here.

This brief review of the general state of the law brings me to the real point in this matter. Of the general right of the party, who is alleged to be incompetent by a proponent of a will, to appear here in person or by attorney and traverse the allegation that he is incompetent I have no doubt. It would, as I stated before, be inconsistent with the general principles of our jurisprudence if it were held otherwise. An appointment made on a false or erroneous suggestion of the mental condition of a party may be vacated by the court making it, and I so hold. The issue of fact is very plain in this matter, but the proponent has not established his contention beyond all peradventure as he should do. That a reference on such an issue could be made to take and report the testimony of the witnesses under oath is possible. But references to report a state of facts would not be conclusive if the same issue were regularly brought to trial in the Supreme Court, and I am disinclined to useless or novel references of doubtful utility.

While the safety of the lady’s estate from machinations of her husband may be and I think is in question, as asserted by the proponent, I doubt whether this is the proper forum or the method employed in this matter is the proper method to defeat them. If the proponent choose to institute a proceeding or action in the Supreme Court to have the heir at law of testatrix adjudicated incompetent the way is open and, no doubt, proper relief may be procurable in that historic and extended jurisdiction. I have never thought that the extent of equitable relief even was a canon closed by Lord Eldon, as often said in the books. To my mind, equity is still a living organon and not a dead one. The statutes making estates of femes covert estates sole both at law and in equity do not prevent the granting of even equitable relief against bad or improvident husbands in a proper case.

This digression brings me to the real point in this cause. The lady whose incompetency is averred in this proceeding has appeared by counsel and by strong affidavits of reputable persons has completely controverted the allegation and supporting affidavits of the proponent. That I have in view of the traverse jurisdiction in this proceeding to vacate the order appointing the special guardian I do not doubt, nor do I doubt that under the circumstances disclosed I ought to vacate the orders designating and appointing the special guardian so as to enable her as sole heir at law and next of kin of testatrix to appear in person or by attorney and contest the probate of her mother’s will, although, as I am informed, such will carries the entire estate to trustees for the benefit of this daughter. But the purport of the will, however wise in the abstract, is no reason for denying the right of the motioner here to contest the probate in the usual form.

As to the part of the motion to strike out of the petition for probate an allegation made no doubt in good faith by the mother’s executor, I deny it. The allegation conforms to the statute and was the basis of the authorized action of this court in the premises. I see no reason for striking it out and very good reason for retaining it. Present orders on the usual notice in conformity with this opinion.

Decreed accordingly.  