
    In the Matter of Thomas Lofthouse, an Alleged Lunatic. Nathan Hinckley, as Executor, etc., of Thomas Lofthouse, Deceased, Appellant; Colston W. Estey, Respondent.
    
      iMnatic — death before confirmation of the inquisition—fees and costs of the proceedings are payable out of the estate—jurisdiction of the Supreme Court and,the County Courts — Code of Civil Procedure, §§ 8333, 2336.
    Upon an ajjpeal by the executor of Thomas Lofthouse from an order adjusting certain hills of costs and expenses in a proceeding for the appointment of a committee of Thomas Lofthouse, an alleged lunatic, it appeared that on April 24, 1894, the proceeding was begun, and on the 22d -;day of June, 1894, Thomas Lofthouse was found by a jury to be of unsound mind, and the inquisition was-returned and filed with the county clerk, andón July 19,1894, before there had been any confirmation of the finding of the jury or any appointment of a committee, Thomas Lofthouse died.
    Subsequently the court ordered that there be paid out of the estate the claim of the special guardian and the fees and disbursements of the commissioner.
    
      Held, that the order was proper;
    That the care of lunatics and of persons of unsound mind is-now vested in the Supreme Court and in the several County Courts, with the same j urisdiction ■ heretofore possessed by the Court of Chancery;
    That, notwithstanding the death of Thomas Lofthouse before confirmation of the inquisition- the commissioner, the sheriff and the jurors were entitled under section- 3333 of the Code of Civil Procedure to such compensation for their services as the court might direct, and that, under section 3336 of the Code of Civil Procedure, the disbursements of the petitioner for costs and counsel fees and the claim of the special guardian were a proper charge’ against the estate;
    That, upon the initiation, of the proceeding, the Court acquired such jurisdiction over the property of thé alleged lunatic that it might direct, the payment out of his estate of the costs of the proceeding; .
    That, until adjusted and fixed by the court, the claims were not debts against the estate in such a sense that they could be collected in the ordinary manner, in which debts' of the decedent might be collected.
    Appeal by Nathan Hinckley, as executor, etc., of Thomas Loft-Louse, deceased, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Wayne on the 31st day of January, 1895, adjusting certain bills of costs and expenses in a proceeding for the appointment of a committee of Thomas Lofthouse, an alleged lunatic.
    
      S. B. McIntyre, for the appellant.
    
      Gilbert db Estey, for the respondent.
   Ward, J.:

On April 20, 1894, the petition of George Lofthouse was presented, by his attorneys, to the Special Term of the Supreme Court praying for a commission Ixmatico de inquirendo to inquire into the lunacy of his father, Thomas Lofthouse. The court at Special Term appointed C. H. Ray as special guardian for the said Thomas Lofthouse to attend to his interest in the proceeding under a commission, which was granted, and appointed E. W. Hamm, Esq., a commissioner to execute the writ. A jury was summoned and on the-22dday.of June, 1894, after several days’ session in a proceeding in which the alleged lunatic appeared by counsel aud in which the attorneys for the petitioner and "the said guardian also appeared, they found that the said Thomas Loftliouse was of unsound mind and incapable of governing himself or managing his property. The inquisition was returned and filed with the county clerk and on the nineteenth day of July Thomas Loftliouse died, there having been no confirmation of the finding of the jury and appointment of committee prior to such death. Thomas Loftliouse left a will, in Which he appointed an executor. The will was duly admitted to probate, and the executor duly qualified and entered upon the duties, of his trust. On the 30th day of January, 1895, the Special Term of the Supreme Court, upon petition duly presented to the court and upon notice to the executor, and upon affidavits presented 'in support of the claims, and in opposition thereto, adjusted the claim of C. H. Ray, as special guardian, at the sum of seventy-four dollars and fifty cents, and Commissioner E. "W. Hamm his fees in the sum of eighty dollars and a further sum of twenty-seven dollars and twenty-five cents for expenses and disbursements of the said commissioner in tiie proceeding, and allowed the petitioners for their counsel fees, costs and disbursements in the said proceeding the sum of $176.50, and directed that the foregoing sums be allowed and payable out of the estate of Thomas Loftus, deceased, the alleged lunatic. The executor upon said motion through his counsel objected to these items and to the allowance thereof and denied the power of the' court to allow and adjust the same.

The appeal from the order making such allowance brings the matter before us. It is now insisted by the counsel for the appellant that the court had no jurisdiction of the matter upon which it acted; that its jurisdiction in the premises ceased upon the death of Thomas Loftliouse, at which time the lunacy proceedings were at an end ; that after his death the inquisition could not be confirmed nor the claims allowed, and it is only where, the inquisition is confirmed and a committee is appointed that the courts can allow costs and disbursements of a petitioner in lunacy proceedings under section 2336 of the Code of Civil Procedure; that it was error for the court to thus adjudicate upon those claims and allow them; that .if the claims had any validity they should have been presented to the executor as a debt against the deceased, to be adjusted and allowed, if at all, upon the same principle that other debts are presented and allowed against the estate of a deceased person.. There seems to be no objection to the amount of the claims. allowed or the justice of such claims, if they are allowable at all. These claims ai-ise in special proceedings instituted under sections 2320 to 2344- inclusive of the Code of Civil Procedure and being title 6 of article 4 of chapter 17 of that.Code, authorizing the appointment of a.committee of the' person and property of" lunatics, etc.-,, and defining; it general powers and duties. The codifiers of this Code,, say in referring to this, title, .that they have carefully endeavored; “ to avoid inserting statutory restrictions upon the courts tending to.deprive them of any. part of the large discretion now resting in them which it. is necessary to preserve for the benefit of the unfortunate ind-ivid-. uals- to- whom this title applies.”

The care; and custody of lunatics and persons of unsound mind was formerly vested in the chancellor, but by the Constitution of 1,846 and the Judiciary Act supplementing it, this power became vested in the. Supreme Court and in the County Courts of the several counties as to persons residing in those counties concurrent with the Supreme Court, so that the original - chancery jurisdiction vesting in this court upon this subject has not been circumscribed nor limited by the Code,, the chapter referred to providing the-procedure to be adopted in appointing the committee and defining its duties' rather than, defining the jurisdiction of the court over the person and property of a lunatic.

By section 2333 of the-Code of Civil Procedure the commissioner is entitled- to such compensation for his services as the court- directs.The jurors are entitled to the same compensation as jurors upon the the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioner, sheriff and .jurors-. These expenses accrued before the death of the alleged lunatic and a duty- is expressly imposed, upon the court to allow them. It is provided by section 2336 of the Code that “ where a committee of the property is appointed, the court must direct the payment by him out of the funds in his hands of the necessary disbursements of the petitioner and of such a sum for his costs -and counsel fees as he thinks reasonable.” The disbursements, of the petitioner for Ms costs and counsel fees and the fees of the special guardian had been earned, so "to speak, by the counsel for the petitioner and-the special guardian prior to the death of :Lofthouse. Ho committee had been appointed. Hone-could be appointed after such death, but the lunacy of Thomas Lofthouse had; i-n fact, been declared and established by a jury prior to that time, and" these costs "and expenses had been incurred in a proceedingtin good’faith to establish- such lunacy. The precise question here isj whether the claimants for the allowances made by-the court have been deprived of their right to enforce -them by the death of Thomas- Lofthouse. We do not-think that those claims, are debts against the-estate- of' Thomas Lofthouse in any such sense as to be enforced and collected" in the ordinary manner that debts against a deceased are collected, because the claims did not become perfected and the property of the lunatic not liable therefor until the court has fixed the amount of the claims and ordered them to be- paid. That was done in this instance. When they are so allowedi and- ordered paid; they-become such an obligation against the property of the deceased that the executor will be authorized to pay them.

In The Matter of Clapp (20 How. Pr. 385, 388, 389) it was held that if upon the execution of the commission of lunacy it had been found that the alleged lunatic was of sound mind then the court would have acquired no control over, his property and could not Lave charged the costs of the proceeding upon his property as, in that case, it would have found no property under its control out of which the costs might be paid; but that after a jury had passed upon the question and found the alleged lunatic of unsound mind, the -court upon confirming the inquisition acquires complete jurisdiction, ■over the lunatic and his property. (Citing Matter of Giles, 11 Paige, 638 ; 1 Collinson on Lunacy, 461 ; Matter of Arnhout, 1 Paige, 501.)

We are of the opinion that the-moment these proceedings, which terminated so far as they had gone successfully, had been instituted' the court obtained such jurisdiction.’over the property of the alleged lunatic as by virtue of its general powers in such cases it could provide for the payment of the costs of the proceeding out of such property.

The report of the. inquisition was not formally confirmed, in this case, but it was sanctioned by the court as far it was necessary to give vitality to these claims, and to that extent was a confirmation of- the inquisition-. Further proceedings, such as the appointment of a committee, were rendered impossible by the death of Thomas Lofthouse, but such death did not deprive the court of the- power of allowing those claims and:directing-their payment.

Section 2336 is imperative. Where a committee is appointed “ the court must direct the payment by him out of the funds in his. hands ” the costs and disbursements. The Code contains no prohibition upon the court, either in language or by inference, against allowing costs and expenses under circumstances like, those in the case before us. The ordinary course of- such proceedings results in the appointment of a committee-who is an officer of the court and takes possession of the property of the lunatic, and in that event the committee must be.directed to pay the costs, etc., but-.in this case the court by virtue of its inherent powers, having secured substantial control of the lunatic’s property, may lawfully make the order appealed froim

The order should . be • affirmed, with ten dollars costs and disbursements. ...

All concurred.

Order affirmed, with ten dollars costs and disbursements.  