THE

Atlantic Reporter.

VOLUME XV.

(44 N. J. E. 564)

In re LINDSLEY.

(Court of Errors and Appeals of New Jersey. August 9, 1888.)

1. INSANITY-DE LUNATICO INQUIRENDO-UNSOUNDNESS OF Mind.

An inquisition in the nature of a writ de lunatico inquirendo must show that the imbecility of mind is such as to render the imbecile unfit for the government of himself, as well as of his property.

2. SAME-RETURN.

A return that the imbecile is an idiot, or a lunatic, or non compos mentis, or of unsound mind, will be regarded as sufficiently showing this fact, because these terms are technically used to express a deprivation of sense to that degree; but a return that the party "is not a lunatic," but that her mind is impaired by age and other causes, and that (or so that) she is not capable of managing her own affairs," .is insufficient, and should be quashed.

(Syllabus by the Court.)

Appeal from court of chancery; MCGILL, Chancellor 10 Atl. Rep. 549. Ludlow McCarter, for appellant. Henry S. Harris, for respondent.

DIXON, J. On the petition of Parmelia L. Nichol a commission issued out of chancery, directing an inquiry “whether Mary Ann Lindsley is a lunatic, or of unsound mind, so that she is not fit for the government of herself, her lands and tenements, goods and chattels." To this an inquisition was returned certifying "that Mary Ann Lindsley is not a lunatic, but that her mind is impaired by age and other causes, and that she is not capable of managing her own affairs." The chancellor set aside this inquisition, because it failed to answer the question put by the commission, pointing out as one defect the omission to state that Mrs. Lindsley's incapacity to manage her affairs arises from the condition of her mind. From the chancellor's order the petitioner appealed to this court, insisting that the inquisition, when fairly interpreted, and especially in the light of certain statements of the jury returned informally with the inquisition, does signify that Mrs. Lindsley's incapacity to manage her affairs is attributable to the impairment of her mind. We do not deem it necessary to pass upon this claim of the appellant, for, assuming it to be well founded, there still remains a defect in the inquest which justities the chancellor's order. The inquiry directed was whether Mrs. Lindsley was a lunatic or of unsound mind, so as to be unfit for the government of herself, her lands, etc. The response, even as interpreted by the appellant, does not touch the question whether she is fit for the government of herself. We think that, under the laws of this state, mental incapacity to that extent must be found in proceedings like the present.

v.15A.no.1-1

It is clear that at the time of the Revolution the English court of chancery required that the return should show that the individual was so far bereft of reason as to justify his being deprived of power over both his person and his estate. A return that the party was an idiot, or a lunatic, or non compos mentis, or of unsound mind, was sufficient, because each of those terms imported such a deprivation of sense as rendered the sufferer unfit for self-control, as well as for the management of his affairs. Ex parte Barnsley, 3 Atk. 168; 1 Collin. Lun. 148; Shelf. Lun. 108. These words were not absolutely essential, but, if omitted, words of equal significance were required, Lord HARDWICKE Saying, (3 Atk. 171:) "It is not a variance in the words, but in the sense and meaning, that will quash the inquisition." Our first statute, after the Revolution, was "An act for supporting idiots and lunatics, and preserving their estates," passed November 21, 1794, (Patt. Laws, 125,) which was evidently an adaptation to our institutions of chapters 9 and 10 of 17 Edw. II., de Prerogative, Regis. (Shelf. Lun. 315.) Although this enactment, by its terms, includes only idiots and lunatics, yet, in construction, it no doubt should embrace those non compos mentis, or of unsound mind, to whom its prototype had been judicially extended. Following this came the supplement of March 1, 1804, (Bloom. Laws, 117,) which directed that all cases of idiocy or lunacy should be determined by an inquest or a commission of idiocy or lunacy issued by the chancellor; that the proceedings should be filed with the surrogate of the county in which the idiot or lunatic resided; and that the orphans' court of that county should appoint a guardian or guardians, who should have the care and provide for the safety of such idiot or lunatic, his or her lands, tenements, goods, and chattels. An existing statute, passed February 28, 1820, is substantially the same. Elmer, Dig. 237; Revision, 601. This state of the law plainly leads to the conclusion that the mental imbecility to be established is such as calls for guardianship over the person as well as over the estate of the imbecile.

The form of the judicial inquiry under these statutes, commencing with that of 17 Edw. II., is to the same effect. The ancient writ issued to inquire whether the party "fatuus et idiota existit, ita quod regimine, sui ipsius terrarum, tenementorum, et cattallorum suorum, non sufficit." Collin. Lun. 117 So the commission which in England superseded the writ, and which has been adopted here, invariably covers the idea of the fitness of the alleged imbecile for self-government. Such a practice would not have obtained and have been observed so persistently, unless this idea had been deemed important, and I think there is no case in our reports where an inquisition has been accepted and acted upon, which did not, either by the technical words above mentioned, or by some other clear form of expression, indicate that the subject of the inquest was incapable of governing himself as well as his affairs. Case of Covenhoven, 1 N. J. Eq. 19; Case of Vanauken, 10 N. J. Eq. 186; James's Case, 35 N. J. Eq. 58. In Perrine's Case, 41 N. J. Eq. 411, 5 Atl. Rep. 579, Chancellor RUNYON said that it is enough to warrant the interference of the court, if, from any cause, whether by age, disease, afflictions, or intemperance, a person has become incapable of managing his own affairs; and he referred, for support, to Lord ELDON, in Gibson v. Jeyes, 6 Ves. 266, and Chancellor KENT, in Re Barker, 2 Johns. Ch. 232. But I apprehend that, in these cases, the attention of the judges was turned more to the source and nature of the mental imbecility than to its extent, and that they must not be understood as holding that weakness of mind, which, though it rendered a person incapable of managing his affairs, did not amount to idiocy or lunacy or unsoundness of mind, (in the technical sense of those terms,) and did not deprive him of the power of governing himself, would justify a court in placing him and his estate under guardianship. The opinion of Lord LYNDHURST, in Re Holmes, 4 Russ. 182, and of Chancellor WALWORTH, in Re Morgan, 7 Paige, 236, indicate that such is not the law, either in England