
    In re BURKE
    (Supreme Court, Appellate Division, First Department.
    May 22, 1908.)
    1. Insane Persons—Inquisition—Parties.
    Under Code Ov. Proc. § 2323, relating to the appointment of a committee of the person and property of a lunatic, etc., and providing that the application for the appointment of such a committee must be made by petition, which may be presented by any person, a distant relative and heir at law of an alleged incompetent, though not even one of his next of ldn, and who was a nonresident of the state and never enjoyed any close intimacy with such incompetent, except that he once extended her aid in taking a normal course, had the right to present such a petition.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Insane Persons, §48.]
    2. Same—Discretion of Court.
    Under Code Civ. Proc. § 2327, relating to the appointment of a committee of the person and property of a lunatic, etc., and making it the duty of the court to which a petition for such appointment 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 his affairs, and that a committee ought in the exercise of a sound discretion to be appointed, not every case' of mental weakness or impaired intellectual power will justify the court in exercising the power; for, even where incompetency exists, the situation and surroundings of the incompetent may be such that there is no necessity for the appointment of a committee, and the phrase “to the sound discretion of the court” indicates the necessity for especial care in a proceeding calculated to deprive a citizen, not only of the possession of his property, but also of his personal liberty.
    3. Same—Review. '
    ‘ The discretion specified in Code Civ. Proc. § 2327, is the discretion of the Supreme Court, and not of any one part or term thereof; and so, when an appeal from a discretionary order is brought up to the Appellate Division, 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 involves the question of discretion, would be error.
    4. Same—Notice.
    Code Civ. Proc. § 2325, provides that in all cases the court must require notice to be given of the presentation of a petition in lunacy proceedings to the husband or wife of the alleged lunatic, or to one or more relatives, or to an officer specified, unless sufficient reasons are shown for dispensing with such notice. Helé, that it is also necessary, in general, that personal and written notice be given to the alleged incompetent.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Insane Persons, § 51.]
    5. Same—Conduct of Hearing.
    Code Civ. Proe. § 2327, relating to the appointment of a committee of the person and property of a lunatic, etc., requires the court to act upon the petition “and the proofs accompanying 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, etc., unless sufficient reasons are shown for dispensing with such notice. It is also necessary that notice be given such incompetent. Helé, that the justice at Special Term was not precluded from , considering anything except the petition and the affidavits submitted in its support, since it would be an idle form to give notice to the persons specified in section 2325, if they were not to be heard in response to the petition.
    6. Same—Discretion of Court.
    In a proceeding under Code Civ. Proc. § 2320 et seq., relating to the appointment of a committee of the person and property of a lunatic, etc., and providing that such appointment be made only in the sound discretion of the court, it was shown that the alleged lunatic was a very old man, who had conveyed his considerable estate to found a charitable organization, but had so disposed of it as to assure himself of a sufficient income during his life; that he was passing his declining years in the sursoundings and companionship which he had chosen for himself when a much younger man; that he was apparently well taken care of' and comfortable ; that his income was not being misspent or wasted; that he had no relatives whatever; and that his mental trouble was merely senile debility. Helé, that an order directing the issuance of a commission de lunático inquirendo was not a wise exercise of the discretion vested in the court.
    Appeal from Special Term.
    In the matter of John Masterson Burke, an alleged incompetent person. From an order directing the issuance of a commission de lunático inquirendo, defendant appeals.
    Reversed.
    Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
    John M. Bowers, for appellant.
    Howard S. Cans, for 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 (section 2320 et seq.); that petitioner being a distant relative of the appellant, and not even one of his next of kin, although she is one of 14 heirs at law. She is a nonresident of the state, and does not appear to have ever enjoyed any close intimacy with the appellant, except that some 10 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, secondly, 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 purpqse 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. Prac. 204; Matter of Clark, 175 N. Y. 139, 67 N. E. 212.

The Special Term deemed 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, 69 App. Div. 303, 85 N. Y. Supp. 863), 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’ Saving Bank, 85 N. Y. 546; Bassett v. French, 155 N. Y. 46, 49 N. E. 325).

The learned justice before when 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 (section 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, 30 N. E. 587. It would be an idle form to give notice to the persons thus specified, if they were not 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, 95 years of age. He resides, and has resided for more than .30 years, in a home owned by him in this •city where he is cared for by a housekeeper who has been a member •of his household for a number of years, by a maidservant, 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 1903 he conveyed his considerable estate to hum self 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 this means Tie 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 purpose to which he desires it to be put, who has relieved himself of its care and yet 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. All concur.  