« PreviousContinue »
Brad. 117; s. C., 3 Abb. Pr. 318; see Clark v. Owens, 18 N. Y. 434 ; Gary v. Post, 13 How. 118.
$ 2311. Commission to be issued if life-tenant is without the State.--If before or at the time of the pre sentation 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 commission, directed to one oj more persons, residing at or near that place, either de signated in the order, or to be appointed upon a subse quent 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 upon the petition be stayed, untis the return of the commission ; and that the petition le dismissed with costs, unless the petitioner takes out the commission within a time specified in the order, aná diligently procures it to be executed and returned, at his own expense. Id., 11.
$ 2312. General provisions respecting the commis. sion. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken inust be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, ex. cept as otherwise specially prescribed in this title. New
& 2313. Petitioner to give notice of its execution The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:
1. If the place, where the commission is to be ese
cuted, is within the United States, or the dominion of Canada, he must give at least two months' notice.
2. If it is witbin either of the West India islands, he must give at least three months' notice.
3. In every other case, he must give at least four months' time.
Notice may be given, as required by this section, by serving it as prescribed in this act for the service of & paper upon an attorney, in an action in the supremo court. Id., & 12, R. S.
$ 2314. Execution thereof.— The commissioner or commissioners possess the same powers, and must pro. ceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before them, as being the person whose death is in question. The return to the commission must expressly state whether any per. son was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed in chapter ninth of this act, for taking the deposition of a witness upon oral interrogatories ; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section. Id., part of $13.
$ 2315. Proceedings on return of commission.—Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections 2309 and 2310 of this act ; but the court may, in its discretion, receive additional proofs from either party. Substituted for 88 13, 14, 15 and 16.
$ 2316. Costs.-Where costs of a special proceeding, taken as prescribed in this title, are awarded, they must be fixed by the court at a gross sum, not exceed. ing fifty dollars, in addition to disbursements. Where provision is not specially made in this title for the award of costs, they may be denied, or awarded to agalust either party, as justice requires. Id., $18.
$ 2317. Property; when restored. The possession of real property, which has been awarded to the peti. tioner; as prescribed in this title, upon the presumption of the death of the person, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead is living. The proceedings upor such an application are the same, as prescribed in this title, upon the application of the person to whom pos session is a warded. Id., & 19.
§ 2318. Remedy of person evicted for profits, etc.A person evicted, as prescribed in this title, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to re. cover the rents and profits of the property, during the occupation, while the person, upon whose life the prior estate depends, is or was living. Id., & 20.
$ 2319. Order not conclusive in ejectment.— A final order, made as prescribed in this title, awarding to the petitioner the possession of real property is presumptive evidence only, in an action of ejectment, brought against him by the person evicted, or in an action brought as prescribed in the last section, of the life or death of the person, upon whose life the prior estato depends.
Proceedings for the appointment of a committee of the
person, and of the property, of a lunatic, idiot, or habitual drunkard ; general powers and duties of the
2321. Duty of court having jurisdiction.
2323(a), Application when incompetent person is in a State insti
tution ; petition, by whom made; contents and proceed.
ings upon presentation thereof. 2323(b). Costs of proceeding. 2324. Duty of certain officers to apply. 2325. Contents, etc., of petition; proceedings upon presenta
When foreign committee may be appointed. 2327. Order for commission, or for trial by jury in court. 2328. Contents of commission. 2329. Commissioners to be sworn; vacancies, how filled. 2330. Jury to be procured. Proceedings thereupon. 2331. Proceedings upon the hearing. 2332. Return of inquisition and commission. 2333. Expenses of commission. 2334. Proceedings upon trial by jury in court. 2335. Subject of inquiry in cases of lunacy. 2336. Proceedings upon verdict, or return of commission, 2336(a). Sections of this title not applicable when application for
committee is made under authority of this State. 2337.
Security to be given by committee. 2338. Compensation of committee. 2939. Committee under control of court; limitation of powers. 2340. Committee of property may maintain actions, etc. 2341. Id.; to file inventory and account. 2342. Id.; may be compelled to file the same, or render an ad.
ditional account, etc. 2343. Property, when to be restored. 2344. Id.; disposition in case of death.
$ 2320. (Amended, 1895.] Jurisdiction; concurrent jurisdiction.— The jurisdiction of the supreme court extends to the custody of the person and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause. Where a county court has jurisdiction of those matters, concurrent with that of the supreme court, the jurisdiction of the court first exercising it, as prescribed in this title. is exclusive of that of the others, with respect to any matter within its jurisdiction, for which provision is made in this title. In all proceedings under this title for the appointment of a committee of such a person, he shall be designated "an alleged incompetent person ; " and after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or imbecile shall be designated an incompetent person." In effect, as amended, Jan. 1, 1896 ; L. 1895, ch. 946.
$ 2321. Duty of court having jurisdiction.The court exercising jurisdiction over the property of either of the incompetent persons, specified in the last section, must preserve his property from waste or destruction; and, out of the proceeds thereof, 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.
Id., part of $1. Parsee Merchants' Case, 11 Abb. N. S. 209; 3 Daly,
$ 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.
New. Matter of Payn, 8 How. Pr. 220 ; Matter of Taylor. 9 Paige, 611; Ex parte Zimmer, 15 Hun, 214 ; Matter of Heeney, 2 Barb. Ch. 326 ; Matter of Owens, 47 How. 150.
$ 2323. [Amended, 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 person. Except as provided in the next section, where the application 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. In effect May 29, 1895; L. 1895, ch. 824.
New in form. In re Smith, 1 Russ. 348; Matter of Lynch, 5 Paige, 120; 2 Barb. Ch. Pr. 228; Matter of Ganse, 9 Paige, 416; Matter of Nealy, 26 How. 402; Matter of Payn, 8 id. 220; Ex parte Fowler, 2 Barb. Ch. 205.
$ 2323 (a). 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 on behalf of the State; the petition must be in writing and verified by the affidavit of the petitioner or his attorney, to the effect that the matters therein stated are true to the best of his information or belief; it must show that the person for whose person or property, or both, a committee is asked has been committed 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 of the husband or wife, if any, of such person, and if there be none, the name and residence of the next of kin of such person living in this State so far as known to the petitioner, the nature, extent and income of his