Wadsworth against Sharpsteen and Moffat executors of Sherman, 8 N.Y. 388

Ruggles, Ch. J. When a man -has been found by inquisition duly taken in pursuance of the statute to be incapable of conducting his own affairs in consequence of habitual drunkenness, his property, real and personal, is taken out of his hands, and put into the custody and control of a committee. The object of this proceeding, as declared in the statute, (2 R. S. 52,) is to prevent the property being wasted and destroyed,- and to provide for the maintenance of himself and his family, and the education of his children.

The committee is required to file an inventory of the property and to give security for the performance of the trust. This trust continues without interruption until the death of the drunkard or the superseding of the commission. The right of the committee to the custody and control of the property is not superseded during the drunkard’s sober intervals; and therefore, during such intervals the drunkard has no more authority to deal with, or dispose of the property, than while he is in a state of intoxication.

If it were otherwise, the proceedings would furnish a very ineffectual security against waste and improvidence. Every transaction would be open to litigation upon the question whether it took place while the drunkard was in a state of sobriety or. intoxication; and the committee could not execute his trust with safety to himself or benefit to the drunkard or his family. Similar consequences would unavoidably follow from permitting the drunkard during sober intervals to contract debts or incur liabilities, by which the property might be seized and sold on judgment and execution.

The effect of the inquisition is that the drunkard is incapable at all times of conducting his affairs; and they are therefore taken wholly out of his control. From the very nature and object of the proceeding therefore, the inquisition must be regarded as conclusive evidence of the incapacity of the drunkard to dispose of his property or to contract debts from the time when it is found. This was so decided in L’Amoreux v. Crosby, 2 Paige, 427. And in Leonard v.

Leonard, 14 Pick. 283, a decree of the probate court declaring a person non compos mentis and putting him under guardianship was held to be conclusive evidence of the disability of the ward against a person dealing with him during his wardship. It is contended however that the inquisition ought not to be conclusive against the plaintiff, a bona fide holder of the bill on which the action was brought, and who had no notice of the proceeding when he took the defendant’s agreement to waive the protest of the draft.

The general rule undoubtedly is, that a decree or other judicial proceeding binds those only who are parties to it. But there are exceptions to this rule. Proceedings in rem are conclusive on all the world. (1 Starkie’s Ev. 246, 7; Phil. Ed. 1837.) And inquisitions being made under competent public authority to ascertain matters of public interest and concern, are said to be analagous to proceedings in rem, to which no one can strictly be said to be a stranger. They are clearly admissible in evidence.

Inquisitions of this nature are public and notorious, and presumed to be known to those who subsequently deal with the subjects of them. And as to all business which the committee is authorized to transact for the drunkard, strangers must deal with the committee and not with the drunkard, until the inquisition is set aside.

There can be no doubt of the authority of the court to order an issue at the instance of a creditor ftir the purpose of retrying the facts found by the inquisition, and of setting it aside. (5 Paige, 242, In the matter of Christie; 11 Paige, 243, In the matter of Giles.) The creditor is therefore not without remedy against an inquisition improperly found. And if the creditor should happen to suffer from making a contract with a drunkard without knowledge of the inquisition, and should thereby sustain a loss, the hardship is no greater than if he dealt with a minor believing him to be of full age.

It is his duty to ascertain whether those he deals with have the capacity to contract. There are many dicta in the books to the effect that inquisitions of lunacy are admissible, but not conclusive evidence. But in all the cases where these dicta are found the question arose upon contracts or conveyances made before the finding of the inquisition. It has been adjudged however, that the inquisition is not conclusive evidence of the lunatic’s incapacity to make a will. This is an exception to the general rule, and the reason given for it in the case of Leonard v. Leonard, 14 Pick. 284, is, that this is

an act which the guardian can not do for him. And in another case, that the making of a will'is

an act manifestly distinguishable from contracts and other acts done inter vivos and involves no conflict of authority with the guardian, because the will can not operate to any purpose till the death of the testator, and by that same event the authority of the guardian is determined. (18 Pick. 116.) To these may be added, as especially applicable to the case of a habitual drunkard, that the chief object of the proceeding by inquisition is the preservation of his property during his lifetime for the benefit of himself and his family, and that the motives which might induce him to make an improper disposition of it during his lifetime, do not exist in relation to a disposition to take effect after his death.

The judgment of the supreme court should be affirmed. Gardiner, Jewett, Johnson, Mason, Morse and Taggart, JJ., concurred with the chief judge