In re Ganse

9 Paige Ch. 416, 1842 N.Y. LEXIS 585, 1842 N.Y. Misc. LEXIS 32

Opinion

The Chancellor.

The affidavits annexed to the petition in this case appear to establish a clear case of lunacy. And the only question is whether this court ought to issue a commission without some evidence of the fact that he is within the jurisdiction of the court. It was at one time questioned whether the lord chancellor of England could issue a commission where the lunatic was abroad. But since the decision of Lord Hardwicke, in Southcot's case, (2 Ves, sen. 402,) there can be no doubt of the right of the chancellor to issue a commission, where the lunatic has lands within his jurisdiction, although the lunatic is himself domiciled abroad. And the cases of Perkins, (2 John, Ch. Rep. 124,) and of Petit, (2 Paige’s Rep. 174,) establish the same principle here. Stock, in his treatise upon the law of non compos mentis, says: u All persons permanently non compos mentis are proper objects of a commission of lunacy, provided they are natives of or residents in England. Thus a commission may be granted against a foreigner whilst in this country, or against an Englishman whilst out of it.” (Stock’s Non Compos Mentis, 94.)

In this case, the supposed lunatic has several thousand dollars of personal property under the care of his brothers in the county of Dutchess, although there is no distinct allegation that he has any real estate there. And the fact that he was in a state of mental alienation when he left his. place of residence in Fishkill, in February, 1841, renders it wholly improbable that he can have established any legal domicil out of this state since that time. For the purposes of this application, therefore, he must be considered as still a citizen of this state, and a resident at Fishkill, where he was domiciled at the time he was deprived of his reason.

A commission must issue accordingly, as prayed in the petition, and must be executed in the town of Fishkill; and the jury may dispense with having the supposed lunatic before them upon the execution of the commission. But notice of the time and place of executing the commission must be given to one of the brothers of the lunatic residing at that place. The commissioners must also direct a similar notice to be transmitted to Ganse himself, through the post office, directed to him at Batavia, at least twenty days previous to the time when the commission is to be executed.