In the matter of Charles Burr, a lunatic, 17 Barb. 9

Hand, J. By granting this motion Mr. Burr would have a committee of his estate hut no committee of his person. In this respect I think it a novel application. The appointment of" either committee is predicated upon an inquisition finding the party is a lunatic, or idiot, or of unsound mind; which, at least in this state, may, it seems, be neither lunacy nor idiocy, hut mental incapacity for the government of himself or his affairs. (In re Morgan, 7 Paige, 236. 2 R. S. 62, § 1. In re Wendell, 1 John. Ch. 600. In re Barker, 2 Id. 232. See Cranmer ex parte, 12 Ves. 445; In re Holmes, 4 Russell, 182; Gibson v.

Jeyes, 6 Ves. 273; Ridgway v. Darwin, 8 Id. 65; In re Mason, 1 Barb. 8. C. Rep. 436 ; Dean’s Med. Jur. 470.) The “ inquiry is,” said Ld. Erskine, in Cramer ex parte, “ whether his capacity is of that ldnd that fits him for the government of himself and the management of his affairs.” And orders for the ■appointment of committees usually recite that he “ is not sufficient for the government of himself and his estate,” of equivalent words. (Shelf. on Lun. 634, 636. 2 Barb. Ch. Pr. 662, 664. 3 Hoff. Ch.

Pr. 392, 394.) And the reported eases go upon the ground that one incapable from imbecility of mind to manage his estate, is unable to take care of himself. Incapacity in the former case evinces an “ unsound mind,” and of those thus afflicted, the chancellor formerly had, and now this court has, the “ care and custody.” (2 R. 8. 52, § 1. Jud. Act, § 16. 5 Paige, 120.) The same

section of the statute gives the power over the estate and the person. (2 R. 8. 52, § 1.) And the Lords Justices in Ex parte Loveday, Ld. Cranworth delivering the opinion, held, under the English statute giving authority over both, that the .jurisdiction must stand or fall together. (8 Eng. L. and Eq. Rep. 235.) A committee of the estate may be appointed here, when a lunatic is a non-resident. So too, if a resident, a committee of the person may be appointed here, though he has property in another state, and committees of his person and estate have there been appointed. (In the matter of Taylor, 9 Paige, 619.

In re Tottenham, 2 My. & Cr. 39. In re Keene, Id. 42, n. In re Newport, Id.) And during the necessary absence of a committee of the person, a temporary committee has been appointed. (In re Ld. Bangor, 2 Moll. 519. Shelf. onLun. 170.) But if the lunatic is a resident and his estate is in this state, the appointment of a committee of the estate only, it seems to me, would be an imperfect and anomalous proceeding. If these views are correct, the court cannot consistently grant this motion, Mr.

Burr does not state that he has so far recovered as to be able to manage his estate; and in his letter to his committee, dated in April last, he writes that it “ is highly important, in reference to my recovery, to have a companion towards whom I feel friendly feelings,” &c.; and in another part of it, that his friends consider “ an able competent companion to be amply sufficient for the care of his person.” And the two physicians, whose depositions, taken in May last, have been read on this motion, give no opinion as to his capacity to manage his estate.

That there has been an improvement in his mental and physical powers since 1844, appears quite probable from the affidavits read on this motion; and indeed the chancellor so thought, as early as in 1847. (In the matter of Burr, 2 Barb. Ch. 208.) But, judging from the petition and the letter of the petitioner, and the qualified language of the affidavits recently made by the two medical gentlemen, I suppose it is not claimed that he now enjoys constant and perfect sanity of mind.

It requires strong evidence of that to supersede a commission. (Shelf. 204.) No' objection is made to the conduct of the committee, in the petition or any of the papers, except in the letter. Nor did I understand the motion to be put upon that ground. However, as that letter has been introduced by the opposing counsel,- perhaps it should not be wholly unnoticed. It is quite probable that the selection of a companion is, as intimated in the letter, the origin of this application.

By the order of December, 1844, the committee of the estate is to inquire into the conduct of the committee of the person from time to time; but the petitioner also has a right to come directly to this court in relation to the conduct of his committees.

The duties of the committee of the person are very delicate and important; being, says Mr; Shelford, “ to administer all the comfort and amusement the nature of the case will admit, or the funds of the.lunatic afford.” (Shelf 142.) He should be treated with great kindness, and all reasonable means of restoration should be employed; and so far as is necessary for this purpose, the expectations of the next of kin and all others disregarded. (Id. 154. In re Salisbury, 3 John, Ch. R. 347.) The great principle that pervades all orders, in cases of lunacy, is solely and exclusively his interest and comfort. (Ld.

Loughborough in Oxenden v. Ld. Compton, 2 Ves. jun. 72.) In this case, the sufferer is a gentleman of great fortune, and the means and the compensation are ample; and the committees and those employed by them should have a common object, his protection and recovery, and the care of his estate. As to the personal control, there should be no capricious domination; but the committee of the person should know and approve his companions. Were I to judge "only from the papers before me, I should be inclined to the opinion that Mr.

Burr, in the present condition of his mind, might be allowed to select, subject of course to the disapproval of the committee for cause. But I need not pursue this branch of the case, as the facts in relation to it, probably, have not all been presented to the court, and I do not put the decision upon that ground. [Saratoga Special Term, June 6, 1853. Hand, Justice.] The prayer of the petition must be denied, and ten dollars costs of each party on the motion, must be paid by the committee of the estate out of the funds in his hands. Ordered accordingly.