
    In the Matter of Ann Eliza Owens.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February, 1892.)
    
    1. Lunacy—Supebsedeas.
    The court has no power after the death of a lunatic to supersede the commission of lunacy on the ground that she had been restored to reason.
    '3. Same—Tbavebse.
    But the death of the lunatic is no obstacle to a traverse of the inquisition by a grantee whose conveyance is invalidated by the inquisition.
    Motion to confirm report of referee.
    
      George Bliss, for the motion; W. Tazewell Fox, contra.
   Pryor, J.

On the 27th day of May, 1873, in a proceeding c?e .lunático inquirendo, Ann Eliza Owens was duly adjudged a lunatic, and a committee appointed of her person and estate. On the 1st July, 1890, the said Ann Eliza Owens conveyed real property of considerable value to the Church of St. Francis Xavier, and shortly thereafter died. Upon a petition setting forth that the said Ann Eliza Owens had ceased, on the lskof July, 1890, to be ■a lunatic, the Church of St. Francis Xavier applied for the appointment of a referee to take proof and report as to the fact of the recovery of said Ann Eliza Owens; and prayed that, if such recovery be established, “ the adjudication and inquisition be annulled, vacated and set aside." Accordingly, a referee was appointed ; and upon testimony as to the mental condition of said Ann Eliza Owens, he reported that, at the time of the convey.•ance to the Church of St. Francis Xavier, “ she was mentally capable of acting and fully understood and comprehended its effect;” .and he recommended that the prayer of the petition be granted, .and that the adjudication of lunacy against said Ann Eliza Owens be annulled, vacated and set aside. On this report and the accompanying evidence the Church of St. Francis Xavier now moves that the said adjudication of lunacy be vacated and set aside. An heir-at-law of the said Ann Eliza Owens opposes the motion; and demands, on the contrary, that the order appointing the referee, and all proceedings under'it, be vacated and set aside.

That there is no logical or legal connection between the sanity •of Ann Eliza Owens on the 1st July, 1890, and the validity of the inquisition of lunacy on the 27th May, 1873, is sufficiently ■obvious. For impeaching the original validity of that inquisition, it was requisite to impugn its regularity, or to establish the then mental competency of the alleged lunatic. True, upon her restoration to sanity, the inquisition and judgment of lunacy might have been superseded; and that such is the object of the present proceeding is apparent upon the. terms of the petition by which it was initiated, as well as of the prayer for relief.

Viewing the proceeding, then, as an application to supersede the-commission of lunacy on the ground of subsequent recovery, the death of the lunatic interposes an insurmountable bar to its maintenance. The petition for a supesedeas must proceed from the lunatic himself, and upon his allegation that he has recovered his senses. Ex parte Rogers, 1 Halst. Ch., N. J., 46; Ex parte Bumpton, Moseley, 78; Ex parte Hanks, 3 Johns. Ch., 567; Ex parte Stanley, 2 Vesey, Sr., 25. And the lunatic must be accessible, so that the court may ascertain, by a personal examination, whether he be-restored to sanity. Shelford on Lunacy, § 11, pages 279-282; Ordrona'ux on Lunacy, title 5, p. 256. The Code, too, unequivocally implies the existence of the lunatic at the time the inquisition is superseded, by providing (§ 2343) that “where he becomes competent to manage himself or his affairs, the court must make an order requiring the committee to restore to him his property,” and by prescribing (§ 2344) that “ where he dies the power of the committee ceases, and his property must be administered- and disposed of, as if a committee had not been appointed.” Indeed, in the very nature of the thing, as an adjudication of the present capacity of the person, a supersedeas of an inquisition of lunacy assumes that the person so adjudged to be competent to-the management of himself and his affairs is not dead, but still lives.

It results, therefore, that the court has no power to supersede-the commission of lunacy against Ann Eliza Owens upon the-ground that since the inquisition she has been restored to reason.

I own my inability to perceive the analogy, suggested by the-ingenious counsel for petitioner, between vacating an inquisition of lunacy and decreeing satisfaction of a judgment. But, how- • ever it be, the law has prescribed the method of declaring satisfied an inquisition of lunacy, namely, by superseding it, and that-we have seen is unattainable after the death of the lunatic.

It does not follow, however, that the petitioner is altogether remediless. Claiming as grantee for value from the alleged lunatic, affirming that at the time of the conveyance she was perfectly competent to its execution, and conceding the technical nullity of the deed because of the inquisition, the petitioner presents a clear case for the exercise of whatever power the court may possess to redress the grievance of which complaint is made. Such power the court has and may exert by means of a traverse of the inquisition. By this proceeding-the present condition of the lunatic is not questioned, buther insanity at the time of the inquisition, or its regularity, is challenged and the issue so raised is tried by a jury, by the court, or by a referee. Such a proceeding need not be instituted by the-lunatic, but a grantee whose conveyance is invalidated by the inquisition will be permitted to traverse it, on stipulating to be bound by the final decision therein, Yauger v. Skinner, 1 McCart. (N. J.), 389; Ex parte Christie, 5 Paige, 242; Medlock v. Cogburn, 1 Rich. Eq., (S. C.), 477; Ex parte Giles, 11 Paige, 243. As to the practice upon -such proceeding, see further Clapp's case, 20 How., 385; Ex parte Tracy, 1 Paige, 580; In re Russell, 1 Barb. Ch., 38; McGinnis v. Comm., 74 Pa. St., 245; Rogers v. Walker, 6 id., 371; Ludwick v. Comm., 18 id., 175; Leckey v. Cunningham, 56 id., 373; Hill v. Day, 34 N. J. Eq., 150. Obviously, as the traverse does not ■question the present condition of the lunatic, and as she is represented by her heirs, her decease opposes no obstacle to the proceeding.

Should the church of St. Francis Xavier choose, by an amended •or original petition, to traverse the inquisition by allegations impeaching its validity, e. g., want of notice to the lunatic, the proceeding will be entertained.

Petitioner’s motion to confirm denied, with ten dollars costs.

The motion to vacate the proceeding denied, without costs, and with leave to petitioner to amend as indicated.  