
    Matter of Jonathan Preston, an Alleged Incompetent Person.
    (Supreme Court, Suffolk Special Term,
    May, 1904.)
    Incompetent person — Confirmation of an inquisition finding a person incompetent when refused.
    The court refused to confirm an inquisition finding an alleged incompetent person to be competent where the evidence showed "that he had well recognized symptoms of incipient, if not actual, senile dementia, where the commissioner dissented and where the jury after hearing the case during an entire day and evening decided it after midnight, having been out only one hour.
    Motion to confirm an inquisition. The hearing was had before Timothy M. Griffing, Esq., sole commissioner, and twenty-one jurors. It began in the morning of March first and continued, with only brief adjournments, until nearly two o’clock in the morning of March second, at which time the ease was submitted to the jury. After being out for about one hour, the jury came in with an inquisition tó the effect that Mr. Preston was competent. This inquisition was signed by twenty of the jurors, but the commissioner dissented therefrom.
    
      Leroy E. Raynor, for Jonathan Preston and Lillian H. Sparks, for motion.
    Herbert L. Fordham, opposed.
   Smith, J.

After a careful examination of the affidavits and evidence presented upon this application I am convinced that substantial justice will be done by refusing to confirm the inquisition and directing that another hearing be had before the same commissioner by another jury.

I am persuaded to this determination without impeaching the good faith or honest intention of any of the jurors by three principal reasons.

First. The evidence seems to disclose without substantial contradiction that the alleged incompetent has recently made a change in the disposition of his entire estate radically different from his intentions formed when he was concededly competent, which intentions were entirely reasonable and such as were naturally to be expected under all the circumstances of his history, associations and relationships. He has recently failed very much in memory, mental acuteness and physical strength. He has become suspicious without cause of the men who justly enjoyed his confidence and respect when he was physically and mentally vigorous. He has recently become very apprehensive of poverty without the slightest justification. These are all well-recognized symptoms of incipient, if not actual, senile dementia.

Second. If it be assumed that despite this evidence the jury was better able to pass upon the competency of Mr. Preston because he was before them and they had an opportunity to see him and to hear him, this advantage was negatived by the dissent of the very able, intelligent and experienced commissioner from the finding of the jury for the very reason that Mr. Preston’s appearance and demeanor under examination satisfied him that he was incompetent. A jury, many of whose members resided in the same village with Mr. Preston and saw him at frequent intervals, would not be so impressed with his failing powers as one who saw him either infrequently or for the first time.

Third. The commissioner even with the assent of the jury should not have permitted the case to he submitted to them for deliberation and decision after midnight at the close of a session which commenced in the morning of the preceding day. After such a prolonged session and at such a late hour the members of the jury could not have been in a fit physical and mental condition to give fair consideration and deliberation to a matter of so much importance.

An order will be made in accordance with this memoran-, dum.'

Ordered accordingly.  