for life, or to prove his existence, has fully complied with the order, the court must make an order dismissing the petition, and requiring the petitioner to pay the costs of the proceedings. 2 R. S. 343, § 9.

2310. When life-tenant deemed dead, and petitioner let into possession.

If it appears, from the referee's report, or upon the hearing before the court, that the person, upon whose life the prior estate depends, was not produced; and if the party required to produce him, or to prove his existence, has not proved, to the satisfaction of the court, that he is living; a final order must be made, declaring that he is presumed to be dead, for the purpose of the preceedings, and directing that the petitioner be forthwith let into possession of the real property, as if that person was actually dead.

Id., § 10.

§ 2311. Commission to be issued if life-tenant is without the State.

If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death was in question, is, or lately was, at a place certain, without the State, the court must make an order, requiring the petitioner to take out a co mission, directed to one or more persons, residing at or near that place, either designated in the order, or to be appointed upon subsequent application for the commission for the purpose of obtaining a view of the person, whose death is in question, and of taking such testimony respecting his identity, as the parties. produce. The order must also direct that the proceedings up a the petition be stayed, until the return of the commission; and that the petition be dismissed with costs, unless the petitioner. takes out the commission within a time specified in the order. and diligently procures it to be executed and returned, at his. own expense.

Id., § 11.

§ 2312. General provisions respecting the commission. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commissio or that interrogatories should be annexed thereto. The commis sion must be executed and returned, and the deposition taken must be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, except as other wise specially prescribed in this title.

§ 2313. Petitioner to give notice of its execution. The petitioner must give to the adverse party, or his attornes, written notice of the time when, and the place where, the com missioner or commissioners will attend, for the purpose of exe cuting the commission, as follows:

1. If the place, where the commission is to be executed, i within the United States, or the dominion of Canada, he must give at least two months' notice.

is within either of the West India islands, he must ast three months' notice.

ery other case, he must give at least four months' time. nay be given, as required by this section, by serving it bed in this act for the service of a paper upon an attoraction in the supreme court.

343, § 12.

Execution thereof.

missioner or commissioners possess the same powers, proceed in the same manner, as a referee, appointed by equiring the production of the tenant for life, or proof tence; except that they cannot proceed, unless a person d before them, as being the person whose death is in The return to the commission must expressly state ny person was or was not so produced. The testimony, the identity of a person so produced, must be taken, erwise specially directed by the court, as prescribed in nth of this act, for taking the deposition of a witness interrogatories; except that it is not necessary to give notice of the time and place of examination, than that in the last section.

f § 13.

roceedings on return of commission.

e return of the commission, the proceedings are the pon the report of a referee, as prescribed in sections 310 of this act; but the court may, in its discretion, itional proofs from either party.

for 88 13, 14, 15 and 16.

osts.

sts of a special proceeding, taken as prescribed in this warded, they must be fixed by the court at a gross xceeding fifty dollars, in addition to disbursements. ision is not specially made in this title for the award ey must be denied, or awarded to or against either istice requires.

roperty; when restored.

ssion of real property, which has been awarded to er; as prescribed in this title, upon the presumption h of the person, upon whose life the prior estate ust be restored, by the order of the court, to the ed, or to his heirs or legal representatives, upon the he latter, and proof, to the satisfaction of the court, son presumed to be dead is living. The proceedings n application are the same, as prescribed in this title, lication of the person to whom possession is awarded.

emedy of person evicted for profits, etc.

evicted, as prescribed in this title, may, if the prepon which he is evicted, is erroneous, maintain an st the person who has occupied the property, or his administrator, to recover the rents and profits of

the property, during the occupation, while the person, upon who life the prior estate depends, is or was living.

2 R. S. 343, § 20.

§ 2319. Order not conclusive in ejectment.

A final order, made as prescribed in this title, awarding to t petitioner the possession of real property is presumptive eviden only, in an action of ejectment, brought against him by t person evicted, or in an action brought as prescribed in the la section, of the life or death of the person, upon whose life t prior estate depends.

626

TITLE VI.

ngs for the appointment of a committee of the and of the property, of a lunatic, idiot, or habit. nkard; general powers and duties of the committee

Jurisdiction; concurrent jurisdiction.

Duty of court having jurisdiction.
Committee may be appointed.

Application for committee; by whom made.

Application when incompetent person is in a State institution; petition, by whom made; contents and proceedings upon presentation thereof.

ontents, etc., of petition; proceedings upon presentation thereof. When foreign committee may be appointed.

rder for commission, or for trial by jury in court.

ontents of commission.

ommissioners to be sworn; vacancies, how filled. ury to be procured. Proceedings thereupon.

roceedings upon the hearing.

eturn of inquisition and commission.

xpenses of commission.

roceedings upon trial by jury in court.

bject of inquiry in cases of lunacy.

roceedings upon verdict, or return of commission.

Sections of this title not applicable when application for committee is made under authority of this State.

ecurity to be given by committee.

>mpensation of committee.

>mmittee under control of court; limitation of powers.

ommittee of property may maintain actions, etc.

.; to file inventory and account.

; may be compelled to file the same, or render an additional ccount, etc.

-operty, when to be restored.

-; disposition in case of death.

[Am'd, 1895.] Jurisdiction; concurrent jurisdie

=diction of the supreme court extends to the custody on and the care of the property, of a person incompe mage himself or his affairs, in consequence of lunacy, itual drunkenness, or imbecility arising from old age memory and understanding, or other cause. Where court has jurisdiction of those matters, concurrent f the supreme court, the jurisdiction of the court first t, as prescribed in this title, is execlusive of that of the n respect to any matter within its Jurisdiction, for ision is made in this title. In all proceedings under r the appointment of a committee of such a person, designated an alleged incompetent person; and ppointment of a committee of such person, in all proceedings the lunatic, idiot, habitual drunkard or all be designated an incompetent person."

946.

uty of court having jurisdiction.

exercising jurisdiction over the property of either of etent persons, specified in the last section, must property from waste or destruction; and, out of the ereof, must provide for the payment of his debts,

and for the safe keeping and maintenance, and the education, when required, of the incompetent person and his family. L. 1874, ch. 446, part of § 1.

§ 2322. Committee may be appointed.

The jurisdiction, specified in the last two sections, must be exercised by means of a committee of the person, or a committee of the property, or of a particular portion of the property, of the incompetent person, appointed as prescribed in this title. The committee of the person and the committee of the property may be the same individual, or different individuals, in the discretion of the court.

§ 2323. [Am'd, 1895.] Application for committee; by whom made.

An application for the appointment of such a committee must be made by petition, which may be presented by any perso Except as provided in the next section, where the applicati is made to the supreme court, the petition must be presented. at a special term held within the judicial district, or to a justice of said court within such judicial district at chambers, where the person alleged to be incompetent resides; or if he is not a resident of the State, or the place of his residence cannot be ascertained, where some of his property is situated, or the State institution is situated of which he is an inmate.

L. 1895, ch. 824.

§ 2323 (a). [Added, 1895.] Application when incompetent person is in a State institution; petition, by whom made; contents and proceedings upon presentation thereof.

Where an incompetent person has been committed to a State institution in any manner provided by law, and is an inmate thereof, the petition may be presented by any officer of and o behalf of the State; the petition must be in writing and verifi by the affidavit of the petitioner or his attorney, to the effe* that the matters therein stated are true to the best of his iaformation or belief; it must show that the person for whos person or property, or both, a committee is asked has been com mitted to a State institution in some manner provided by law and is at the time an inmate thereof; it must also state the institution in which he is an inmate, the date of his admission his last known place of residence, the name and residence! the husband or wife, if any, of such person, and if there be non the name and residence of the next of kin of such person livi in this State so far as known to the petitioner, the nature extent and income of his property, so far as the same is know to the petitioner, or can with reasonable diligence be ascertained by him. The petition may be presented to the supreme court p any special term thereof, held either in the judicial district which such incompetent person last resided, or in the distri in which the State institution in which he is committed situated, or to a justice of the supreme court at chambers withi such judicial district. Notice of the presentation of such per tion shall be personally given to such person, and also to th husband or wife, if any, or if none to the next of kin named it the petition, and to the officer in charge of the institution which such person is an inmate. Upon the presentation of sne