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TITLE VI.

Proceedings for the appointment of a committee of the person, and of the property, of a lunatic, idiot, or habit. ual drunkard; general powers and duties of the committee

Sec. 2320. Jurisdiction; concurrent jurisdiction.

2321. Duty of court having jurisdiction.

2322. Committee may be appointed.

2323. Application for committee; by whom made.

2323a. Application when incompetent person is in a State institution; petition, by whom made; contents and proceedings upon presentation thereof.

2323b. Costs of proceeding.

2324. Duty of certain officers to apply.

2325. Contents, etc., of petition; proceedings upon presentation thereof.
2326. When foreign committee may be appointed.

2327. Order for commission, or for trial by jury in court,

2328. Contents of commission.

2329. Commissioners to be sworn; vacancies, how filled,

2330. Jury to be procured. Proceedings thereupon.

2331. Proceedings upon the hearing.

2332. Return of inquisition and commission.

2333. Expenses of commission.

2334. Proceedings upon trial by jury in court.

2335. Subject of inquiry in cases of lunacy.

2336. Proceedings upon verdict, or return of commission.

2336a. Sections of this title not applicable when application for com
mittee is made under authority of this State.

2337. Security to be given by committe.

23:38. Compensation of committee.

2339. Committee under control of court; limitation of powers.

2340. Committee of property may maintain actions, etc.

2341

Committee of property; to file inventory and account.

2242. Id.; may be compelled to file the same, or render an additional acconnt,

etc.

2343. Property, when to be restored.

2344. Id.; disposition in case of death.

§ 2320. [Am'd, 1895.] Jurisdiction; concurrent jurisdiction.

Where

The jurisdiction of the supreme court extends to the custody of the person and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause. a county court has jurisdiction of those matters, concurrent with that of the supreme court, the jurisdiction of the court first exercising it, as prescribed in this title, is execlusive of that of the In all proceedings under others, with respect to any matter within its Jurisdiction, for and which provision is made in this title. this title for the appointment of a committee of such a person, he shall be designated "an alleged incompetent person; after the appointment of a committee of such person, in all subsequent proceedings the lunatic, idiot, habitual drunkard or an incompetent person." imbecile shall be designated " L. 1895, ch. 946.

2321. Duty of court having jurisdiction.

"

The court exercising jurisdiction over the property of either of the incompetent persons, specified in the last section, must preserve his property from waste or destruction: and, out of the proceeds thereof, must provide for the payment of his debts,

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and for the safe keeping and maintenance, and the education, when required, of the incompetent person and his family. L. 1874, ch. 446, part of § 1.

§ 2322. Committee may be appointed.

The jurisdiction, specified in the last two sections, must be exercised by means of a committee of the person, or a committee of the property, or of a particular portion of the property, of the incompetent person, appointed as prescribed in this title. The committee of the person and the committee of the property may be the same individual, or different individuals, in the discretion of the court. § 2323. [Am'd, 1895.] Application for committee; by whom made. An application for the appointment of such a committee must be made by petition, which may be presented by any person. Except as provided in the next section, where the application is made to the supreme court, the petition must be presented at a special term held within the judicial district, or to a justice of said court within such judicial district at chambers, where the person alleged to be incompetent resides; or if he is not a resident of the State, or the place of his residence cannot be ascertained, where some of his property is situated, or the State institution is situated of which he is an inmate.

L. 1895, ch. 824.

§ 2323a. [Added, 1895; am'd, 1897, 1904.] Application when incompetent person is in a state institution; petition, by whom made; contents and proceedings upon presentation thereof.

Where an incompetent person has been committed to a state institution in any manner provided by law, and is an inmate thereof, the petition may be presented on behalf of the state by a state officer having special jurisdiction over the institution where the incompetent person is confined or the superintendent or acting superintendent of said institution; the petition must be in writing and verified by the affidavit of the petitioner or his attorney, to the effect that the matters therein stated are true to the best of his information or belief; it must show that the person for whose person or property, or both, a committee is asked has been legally committed to a state institution over which the petitioner has special jurisdiction, or of which he is superintendent or acting superintendent, and is at the time an inmate thereof; it must also state the institution in which he is an inmate, the date of his admission, his last known place of residence, the name and residence of the husband or wife, if any, of such person, and if there be none, the name and residence of the next of kin of such person living in this state so far as known to the petitioner; the nature, extent and income of his property, so far as the same is known to the petitioner, or can with reasonable diligence be ascertained by him. The petition may be presented to the supreme court at any special term thereof, held either in the judicial district in which such incompetent person last resided, or in the district in which the state institution in which he is committed is situated, or to a justice of the supreme court at chambers within such judicial district. or to the county court of the county in which the incompetent person resided at the time of such commitment, or of the county in which said institution is situated. Notice of the presentation of such petition shall be personally given to such person, and also to the husband or wife, if any, or if none to the next of kin

c. 17, t. 6

named in the petition and to the officer in charge of the institu-
tion in which such person is an inmate. Upon the presentation
of such petition, and proof of the service of such notice, the court
or justice may, if satisfied of the truth of the facts required to
be stated in such petition, immediately appoint a committee of
the person or property, or both, of such incompetent person or
may require any further proof which it or he may deem necessary
before making such appointment.

L. 1895, ch. 824; L. 1897, ch. 149; L. 1904, ch. 509. In effect Sept. 1, 1904.

f 2323 (b). [Added, 1895.] Costs of proceeding.

Upon the presentation of a petition and the appointment of a committee, as provided in section two thousand three hundred and twenty-three (a), the court or Justice may award costs of the proceeding, not exceeding twenty-five dollars in addition to necessary disbursements, to the petitioner, payable from the estate of the incompetent person, and upon denial of an application to set the same aside, costs as of a motion.

L. 1895, ch. 824.

§ 2324. Duty of certain officers to apply.

Where the incompetent person has property, which may be endangered in consequence of his incompetency, and no relative or other person applies for the appointment of a committee of his property, the overseer or superintendent of the poor of the town, district, county, or city, in which he resides, or, where there is no such officer, the officer or officers performing corresponding functions under another official title, must apply to the proper court, for the appointment of such a committee. expenses of conducting the proceedings thereupon must be audited and allowed, in the same manner as other official expenses of those officers are audited and allowed.

2 R. S. 52, 53, §§ 2-7 (2 Edm. 53).

The

§ 2325. [Am'd, 1891.] Contents, etc., of petition; proceed, ings upon presentation thereof.

The petition must be in writing, and verified by the affidavit of the petitioner, or his attorney, to the effect that the matters of fact therein stated are true. It must be accompanied with proof, by affidavit, that the case is one of those specified in this title. It must set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs, of the person alleged to be incompetent, as far as the same are known to the petitioner, or can, with reasonable diligence, be ascertained by him, and also the probable value of the property possessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incompetency and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. The court must, unless sufficient reasons for dispensing therewith are set forth, in the petition or accompanying affidavit, require notice of the presentation of the petition to be given to the husband or wife, if any, or to one or more relatives of the person alleged to be incompetent, or to an officer specified in the last section. Where notice is required, it may be given in any manner, which the court deems proper; and for that purpose, the hearing may be adjourned to a subsequent day, or to another term, at which the petition might have been presented.

§ 2326. [Am'd, 1898.] When foreign committee may be appointed.

Where the person alleged to be incompetent resides without the state, and a committee, curator or guardian of his property, by whatever name such officer may be designated, has been duly appointed pursuant to the laws of any other state, territory or country where he resides, the court may, in its discretion, make an order appointing the foreign committee, curator or guardian, the committee of all or of a particular portion of the property of the incompetent person, within the state, on his giving such security for the discharge of his trust as the court thinks proper.

L. 1898, ch. 294. In effect Sept. 1, 1898.

2327. [Am'd, 1895.] Order for commission, or for trial by jury in courts.

Unless an order is made, as prescribed in the last section, if it presumptively appears, to the satisfaction of the court, from the petition and the proofs accompanying it, that the case is one of those specified in this title; and that a committee ought, in the exercise of a sound discretion, to be appointed; the court must make an order, directing, either

1. That a commission issue, as prescribed in the next section, to one or more fit persons, designated in the order; or

2. That the question of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, be tried by a jury, at a trial term of the court.

3. When it satisfactorily appears from the petition and accompanying affidavits that any person or persons having acquired from the alleged incompetent person, real or personal property during the time of such alleged incompetency without adequate consideration, the court may issue an order, with or without security, restraining such person or persons from selling, assigning, disposing, of or incumbering said property, or confessing judgment which shall become a lien upon said property, during the pendency of the proceeding for the appointment of a committee, and said order may in the discretion of the court be continued for ten days after the appointment of such committee. Notice of the execution of the commission shall be given to the person or persons enjoined in such manner as the court may direct. L. 1895, ch. 946.

{2328. Contents of commission.

The commission must direct the commissioners to cause the sheriff of a county, specified therein, to procure a jury; and that they inquire, by the jury, into the matters set forth in the petition; and also into the value of the real and personal property of the person alleged to be incompetent, and the amount of his income. It may contain such other directions, with respect to the subjects of inquiry, or the manner of executing the commission, as the court directs to be inserted therein.

§ 2329. Commissioners to be sworn; vacancies, how filled. Each commissioner, before entering upon the execution of his duties, must subscribe and take, before one of the officers specified in section 842 of this act, and file with the clerk, an oath, faithfully, honestly, and impartially to discharge the trust committed to him. If a commissioner becomes incompetent, or negleets or refuses to serve, or removes from the State, the court

may remove him. The court may, from time to time, fill any vacancy created by death, removal or resignation.

§ 2330. [Am'd, 1895.] thereupon.

Jury to be procured; proceedings

The commissioners, or a majority of them, must immediately issue a precept to the sheriff, designated in the commission, requiring him to notify, not less than twelve nor more than twentyfour indifferent persons, qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioners, at a specified time and place, within the county, to make inquiry, as commanded by the commission. The sheriff must notify the jurors accordingly; and must return the precept, and the names of the persons notified, to the commissioners at the time and place specified in the precept. The commissioners, or a majority of them, must determine a challenge made to a juror. Upon the failure to attend, of a person who has been duly notified, his attendance may be compelled; and he may be punished by the court for a contempt, as where a juror, duly notified, fails to attend at a trial term of the court. The commissioners may require the sheriff to cause a talesman to attend, in place of a juror notified, and not attending, or who is excused or discharged; or they may adjourn the proceedings, for the purpose of punishing the defaulting juror, or compelling his attendance. But it is not necessary to cause any 'talesman to attend, if at least twelve of the persons, notified by the sheriff, appear and are sworn.

L. 1895, ch. 946.

§ 2331. Proceedings upon the hearing.

All the commissioners must attend and preside at the hearing; and they, or a majority of them, have, with respect to the proceedings upon the hearing, all the power and authority of a judge of the court, holding a trial term, subject to the directions contained in the commission. Either of the commissioners may administer the usual oath to the jurors. At least twelve jurors must concur in a finding. If twelve do not concur, the jurors must report their disagreement to the commissioners, who must thereupon discharge them, and issue a new precept to the sheriff, to procure another jury.

§ 2332. Return of inquisition and commission.

The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inquisition must be returned by the commissioners, and filed with the clerk.

§ 2333. Expenses of commission.

The commissioners are entitled to such compensation for their services, as the court directs. The jurors are entitled to the same compensation, as jurors upon the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioners, sheriff and jurors.

§ 2334. [Am'd, 1895.] Proceedings upon trial by jury in court.

Where an order is made, directing the trial, by a jury, at a trial term, of the questions of fact, arising upon the competenc

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