Harris, J.
Upon the hearing of this motion, the counsel, by whom it was argued on behalf of the petitioners, very properly, I think, abandoned the ground that the committee should be removed on account of misconduct or inattention to the duties of their trust, and relied entirely upon the insufficiency of the return of the jury, upon the taking of the inquisition, to sustain the proceedings. The question now to be determined relates, therefore, solely to the regularity of the proceedings which resulted in the appointment of the committee.
The earlier chancellors of England, in the exercise of their jurisdiction over persons incapable of taking care of themselves, confined themselves to cases of strict idiocy and lunacy. Accordingly, Lord Hardwicke, in the case Ex parte Barnsley, (3 Atk. 168,) held an inquisition which found that the alleged lunatic, from weakness of mind, was incapable of governing himself, or his estate, to be insufficient. In that case, the Lord Chancellor remarked, that he was glad to find, upon search, that except in two or three instances, the return had been lunations, or non compos mentis, or insana mentis ; or, since the proceedings have been in English, of unsound mind. He added, that he desired they should continue so, or otherwise it would introduce great uncertainty.
[440]*440About the same time, the same chancellor quashed a return which found the alleged lunatic not of sufficient understanding to manage his own affairs; and another in which the jury found him to be “ Worn out with age and incapable of mana-» ging his own affairs.” At a later day, the decision of Lord Erskine in the case Ex parte Cranmer, (12 Vesey, 445,) gave a more enlarged and extended jurisdiction to this paternal care of the court; and he held that it embraced cases of imbecility resulting from old dge, sickness, or other causes. The question, he said, was whether the party had become mentally incapable of vnanaging his affairs. In a previous case, Lord Eldon had decided that it was not necessary, in support of a commission in the nature of a writ de lunático inquirendo, to establish lunacy; but it was sufficient if the party was shown to be incapable of managing his own affairs. And yet, in all these cases, it was held to be necessary that the jury should find unsoundness of mind; which Lord Hardwicke séems to have understood as correspondent with lunatic, and which Lord Eldon defined to be “ such a state of mind as to be contradistinguished from idiocy, and also from lunacy, and yet such as made one a proper object of a commission in the nature of a commission to inquire of idiocy or lunacy.”
The reason of this strictness in relation to the form of the inquisition seems not to have had any connection with the question of jurisdiction. On the contrary, we find the English chancellors repeatedly asserting their jurisdiction over all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs; while at the same time they hold the finding of the jury upon the execution of the commission insufficient, unless it includes unsoundness of mind. I think the reason of this strictness is to be found in the fact that, by the English statutes, the party who, by an inquisition, had been returned a lunatic, or of unsound mind, had a right to traverse the finding of the jury. It was, important, therefore, that there should be no uncertainty in the form of the finding; as it might become the subject of an issue, upon the traverse. But here, the right to traverse the inquisition does not exist, and [441]*441therefore there is not the same reason for insisting upon a particular form in the finding of the jury.
By the statute of this state, the care and custody of the persons and estates of lunatics, idiots, persons of unsound mind, and habitual drunkards is confided to the court of chancery, without any restriction or limitation. The manner in which the control thus given is to be exercised is entirely a matter of discretion. The form of the return to the inquisition is only important so far as it is necessary to satisfy the conscience of the court. If, upon the coming in of the inquisition, enough appears to enable the court to adjudge the party to be within some one of the classes of persons over whom the statute has given it jurisdiction, it is sufficient. A discreet exercise of the power vested in the court undoubtedly requires that before a citizen shall be deprived of his liberty, and the control of his own property, evidence of the most conclusive character should be produced, showing him to be a person for whose benefit the law has benignly provided this delicate and important trust. But I am not prepared to say that a case might not be presented to the court in which the evidence would be so clear and satisfactory as to justify the exercise of its summary power, for the protection of a party, without the intervention of a jury» Whether this be so, or not, I cannot doubt that under the law of this state, it is enough to vest the court with jurisdiction of the case when, as in the case under consideration, the jury find that the party is mentally incapable of governing himself, or managing his affairs. Chancellor Kent seems to have thought so, when in the case of Barker, (2 John. Ch. 232,) he directed a commission to issue to inquire whether the party was of unsound mind, or mentally incapable of managing his affairs. It is quite evident that in giving this direction, that learnéd jurist understood the two terms, “ unsound mind,” and mentally incapable of managing his affairs, as meaning substantially the same thing, and that the use of either phrase in the inquisition would furnish sufficient ground to justify him in proceeding to the appointment of a committee. It is true, that in the case referred to, the jury found that Barker was of unsound mind3 [442]*442and mentally incapable of managing his affairs; yet from the form of the order directing the commission to issue, it is plainly inferable that no force was added to the return of the jury by adopting both phrases. Indeed, looking at both terms in their plain and obvious sense, I cannot but regard the expression “ mentally incapable of governing himself or managing his affairs,” as necessarily embracing all that is understood by the term “ unsound mind,” and perhaps more. In the case of Wendell, (1 John. Ch. 600,) the same learned chancellor also directed an issue to be made and settled to try the question, whether Wendell “ be a lunatic or mentally incapable of managing his own affairs;” thus showing that the alternative form of the order was not a mere matter of inadvertence, but that it was deliberately adopted. I agree with Chancellor Walworth in the opinion expressed by him in the matter of Morgan, (7 Paige, 236,) that it is not wise to depart from the technical form of finding in the language of the statute itself; although, as I have already attempted to show, the same reason which has induced the English court of chancery to confine the jury to the technical expression of unsoundness of mind, does not exist here. It might, perhaps, have been better, in the case now before the court, if the vice chancellor had required a further inquisition; and yet I cannot say that, under the circumstances as they appeared, it was an indiscreet exercise Of his undoubted power. However that may be, it was a question of discretion, and not of jurisdiction, and if the vice chancellor erred his error could only have been corrected by appeal.
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Harris, J.
Upon the hearing of this motion, the counsel, by whom it was argued on behalf of the petitioners, very properly, I think, abandoned the ground that the committee should be removed on account of misconduct or inattention to the duties of their trust, and relied entirely upon the insufficiency of the return of the jury, upon the taking of the inquisition, to sustain the proceedings. The question now to be determined relates, therefore, solely to the regularity of the proceedings which resulted in the appointment of the committee.
The earlier chancellors of England, in the exercise of their jurisdiction over persons incapable of taking care of themselves, confined themselves to cases of strict idiocy and lunacy. Accordingly, Lord Hardwicke, in the case Ex parte Barnsley, (3 Atk. 168,) held an inquisition which found that the alleged lunatic, from weakness of mind, was incapable of governing himself, or his estate, to be insufficient. In that case, the Lord Chancellor remarked, that he was glad to find, upon search, that except in two or three instances, the return had been lunations, or non compos mentis, or insana mentis ; or, since the proceedings have been in English, of unsound mind. He added, that he desired they should continue so, or otherwise it would introduce great uncertainty.
[440]*440About the same time, the same chancellor quashed a return which found the alleged lunatic not of sufficient understanding to manage his own affairs; and another in which the jury found him to be “ Worn out with age and incapable of mana-» ging his own affairs.” At a later day, the decision of Lord Erskine in the case Ex parte Cranmer, (12 Vesey, 445,) gave a more enlarged and extended jurisdiction to this paternal care of the court; and he held that it embraced cases of imbecility resulting from old dge, sickness, or other causes. The question, he said, was whether the party had become mentally incapable of vnanaging his affairs. In a previous case, Lord Eldon had decided that it was not necessary, in support of a commission in the nature of a writ de lunático inquirendo, to establish lunacy; but it was sufficient if the party was shown to be incapable of managing his own affairs. And yet, in all these cases, it was held to be necessary that the jury should find unsoundness of mind; which Lord Hardwicke séems to have understood as correspondent with lunatic, and which Lord Eldon defined to be “ such a state of mind as to be contradistinguished from idiocy, and also from lunacy, and yet such as made one a proper object of a commission in the nature of a commission to inquire of idiocy or lunacy.”
The reason of this strictness in relation to the form of the inquisition seems not to have had any connection with the question of jurisdiction. On the contrary, we find the English chancellors repeatedly asserting their jurisdiction over all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs; while at the same time they hold the finding of the jury upon the execution of the commission insufficient, unless it includes unsoundness of mind. I think the reason of this strictness is to be found in the fact that, by the English statutes, the party who, by an inquisition, had been returned a lunatic, or of unsound mind, had a right to traverse the finding of the jury. It was, important, therefore, that there should be no uncertainty in the form of the finding; as it might become the subject of an issue, upon the traverse. But here, the right to traverse the inquisition does not exist, and [441]*441therefore there is not the same reason for insisting upon a particular form in the finding of the jury.
By the statute of this state, the care and custody of the persons and estates of lunatics, idiots, persons of unsound mind, and habitual drunkards is confided to the court of chancery, without any restriction or limitation. The manner in which the control thus given is to be exercised is entirely a matter of discretion. The form of the return to the inquisition is only important so far as it is necessary to satisfy the conscience of the court. If, upon the coming in of the inquisition, enough appears to enable the court to adjudge the party to be within some one of the classes of persons over whom the statute has given it jurisdiction, it is sufficient. A discreet exercise of the power vested in the court undoubtedly requires that before a citizen shall be deprived of his liberty, and the control of his own property, evidence of the most conclusive character should be produced, showing him to be a person for whose benefit the law has benignly provided this delicate and important trust. But I am not prepared to say that a case might not be presented to the court in which the evidence would be so clear and satisfactory as to justify the exercise of its summary power, for the protection of a party, without the intervention of a jury» Whether this be so, or not, I cannot doubt that under the law of this state, it is enough to vest the court with jurisdiction of the case when, as in the case under consideration, the jury find that the party is mentally incapable of governing himself, or managing his affairs. Chancellor Kent seems to have thought so, when in the case of Barker, (2 John. Ch. 232,) he directed a commission to issue to inquire whether the party was of unsound mind, or mentally incapable of managing his affairs. It is quite evident that in giving this direction, that learnéd jurist understood the two terms, “ unsound mind,” and mentally incapable of managing his affairs, as meaning substantially the same thing, and that the use of either phrase in the inquisition would furnish sufficient ground to justify him in proceeding to the appointment of a committee. It is true, that in the case referred to, the jury found that Barker was of unsound mind3 [442]*442and mentally incapable of managing his affairs; yet from the form of the order directing the commission to issue, it is plainly inferable that no force was added to the return of the jury by adopting both phrases. Indeed, looking at both terms in their plain and obvious sense, I cannot but regard the expression “ mentally incapable of governing himself or managing his affairs,” as necessarily embracing all that is understood by the term “ unsound mind,” and perhaps more. In the case of Wendell, (1 John. Ch. 600,) the same learned chancellor also directed an issue to be made and settled to try the question, whether Wendell “ be a lunatic or mentally incapable of managing his own affairs;” thus showing that the alternative form of the order was not a mere matter of inadvertence, but that it was deliberately adopted. I agree with Chancellor Walworth in the opinion expressed by him in the matter of Morgan, (7 Paige, 236,) that it is not wise to depart from the technical form of finding in the language of the statute itself; although, as I have already attempted to show, the same reason which has induced the English court of chancery to confine the jury to the technical expression of unsoundness of mind, does not exist here. It might, perhaps, have been better, in the case now before the court, if the vice chancellor had required a further inquisition; and yet I cannot say that, under the circumstances as they appeared, it was an indiscreet exercise Of his undoubted power. However that may be, it was a question of discretion, and not of jurisdiction, and if the vice chancellor erred his error could only have been corrected by appeal. The motion to set aside the proceedings must therefore be denied.
Nor can I say, from any thing before me, that the committee have omitted any thing which would have in any degree contributed to the comfort or happiness of the afflicted individual committed to their charge, or that in any respect they have been unfaithful to their trust. So far from this, they have, I think, fully and satisfactorily met every allegation in the petition, charging them with improper conduct in the management of the person or estate entrusted to their guardianship. A careful examination of the case has confirmed the impression made [443]*443upon my mind on the argument, that the committee had discharged the delicate duties assigned them, with commendable humanity and faithfulness. At the same time, I am inclined to believe it may not be an indiscreet exercise of the supervisory power of the court to direct a further examination to be had in the case. • In the discharge of "this important branch of its trusts, the court cannot guard too sedulously the welfare of that unhappy class of persons, who, incapable Of taking care of themselves, have been committed to its care. I can but hope too, that a reference / judiciously conducted, may tend to allay any apprehensions, unfounded as I think they are, which are now entertained by any of the relatives of this unfortunate man, that his comfort is not sufficiently cared for by his committee. I shall, therefore, direct that it be referred to Murray Hoffman, Esquire, or if he shall decline to act as such referee, then to such other person as may be agreed upon by the counsel for the parties, to inquire into the personal condition of this person, and particularly whether or not he has been treated in a due and proper manner by his committee; also whether any greater freedom or indulgence can be granted to him with safety, and whether any change in his situation or mode of life would be conducive to his comfort; also to inquire whether the allowance made for his support, has in good faith been expended for his benefit: to the end that upon the coming in of the report, any further direction may be given which may then be deemed proper. The order should also contain a provision authorizing the referee, and such other persons as he may think proper, to have free access to Mason for the purpose of personal examination, and if the referee shall so direct, that he be present upon the execution of the reference. The costs of the reference must, in the first instance, be paid by the petitioner, James Mason, unless the committee shall elect to have a provision inserted in the order for passing their accounts. In that case, the costs of the reference may be paid out of the estate in the hands of the committee. Otherwise, it must depend upon the result of the examination, and the report of the referee, whether the estate shall bear the expense of the reference.