In re Livingston

1 Johns. Ch. 436

• Court: New York Court of Chancery
• Decided: June 5, 1815
• Status: Published

Opinion

The Chancellor.

1 agree with what was said by Lord Macclesfield„ in Dormer's Case, (2 P. Wms 262.,) that there is no sufficient reason for the old rule against committing the custody of the person and estate of a lunatic to the heir at law. The rule, in many cases under our statute, would take a child from its parent, which would be most unnatural, and the rule has been held (ex parte Ludlow, 2 P. Wms. 638.) not to apply to the next of kin entitled under the statute of distributions to the personal estate. The daughter, in this case, is the most fit person to take charge of an aged and afflicted mother; and the presumption (if one must be indulged) would be in favour of kinder treatment, and more patient fortitude, from the daughter, than from the collateral kindred. I shall, therefore, direct, that the custody of person and estate of the lunatic be committed to the petitioners, on their giving the requisite security.

Rule accordingly.

(a)

Vide ex parte Cocknayne, (7 Vesey, jun. 591.)