Matter of Andrews

Willard Bartlett, J. From the foregoing statement of the facts of this case it is apparent that the court at Special Term, having three proceedings before it, none of which involved any application for a change in the personnel of the committee of the. estate, and while a special proceeding for that purpose was pending and undetermined (having been referred to a referee to take testimony therein), nevertheless assumed and exercised the power to remove the committee of the estate, substitute a stranger as committee, and by an order in totally distinct and separate proceedings to terminate the particular special proceeding in which the parties in interest had not yet been heard as to the necessity or propriety of such removal. This judicial action is sought to be sustained upon the broad ground that the Supreme Court, in the exercise of its jurisdiction over lunatics, idiots, habitual drunkards and persons of unsound mind generally, possesses the power in the absence of any petition or other application, and of its own motion and without notice, to remove the committee of the estate of a pierson who has been adjudged insane and appoint a new committee. It is argued that if this view is correct, the manner in which the power was exercised in the present case is immaterial; and that inasmuch as the court at Special Term *521 could have removed Messrs. Roosevelt and Andrews as a committee of the estate of Blanche L. Andrews without notice to anybody, and acting simply upon information, however that information might be obtained, which indicated that their removal would be advantageous to the interests of the incompetent, it affords no ground of complaint to the removed committee or the next of kin of Mrs. Andrews that the order of removal and substitution ivas made in one proceeding or set of proceedings rather than in another. Reference is made to the Code of Civil Procedure relative to proceedings for the appointment of a committee of the person and property of a lunatic, idiot or habitual drunkard, and prescribing the general powers and duties of such committee; and it is asserted that there is here to be found no limitation or restriction upon the jurisdiction of the Supreme Court over the persons or the estates of incompetent persons except where concurrent jurisdiction is given to the County Court in which case the court first exercising it does so to the exclusion of the other. We have recently had. occasion to consider this subject so fully in the case of Sporza v. German Savings Bank (192 N. Y. 8) that any further discussion of the origin, development and extension of the present jurisdiction of our Supreme Court over persons of unsound mind would involve only unnecessary repetition. It may be assumed that the jurisdiction is broad enough to render an order of removal and substitution without notice,.such as was made in the present case, unassailable in a collateral proceeding. Here, however, the regularity of the order is directly attacked in an appeal from the order itself; and we are called upon to decide whether the steps which led up to that order were taken in the manner prescribed by law. The jurisdiction of the Supreme Court as the successor of the Court of Chancery over the person and property of a person incompetent to manage himself or his affairs must be exercised by means of a committee of the person and a committee of the estate who may be the same or different individuals in the discretion of the court. (Code Civ. Pro. § 2322.) The *522 court is empowered to appoint, control, suspend or „ remove such committee or allow him to resign. (Code Civ. Pro. §§ 2322, 2339.) If the incompetent person has been committed to a state institution and is an inmate thereof a committee cannot be appointed without personal notice of the presentation of the petition for appointment to such incompetent person and also to the husband or wife, if any, or if none to the next of kin, named in the petition and to the officer in charge of the institution of which such person is an inmate. (Code Civ. Pro. § 2323a.) In all other cases the court must require notice of the presentation of the petition to be given to the husband or wife, if any, or to one or more of the relatives of the person alleged to be incompetent, or to certain specified public officers unless sufficient reasons for dispensing with such notice are set forth in the petition or in an accompanying affidavit. (Code Civ. .Pro. § 2325.) These provisions of the statute manifest the legislative intent that notice shall be given, if possible, to the relatives'of an alleged lunatic of an application to the court for the appointment of a committee. In the section of the Code, however, which provides that the committee may be suspended or removed in the discretion of the court, nothing is said about any notice of an application for removal or as to the necessity of any special proceeding for that purpose ; and hence it seems to be inferred that no notice is requisite. An examination of the subsequent provisions in the same title of the Code of Civil Procedure, however, indicates that this inference is incorrect. Section 2342 provides for an annual judicial examination of the accounts and inventories filed by committees of the person and property. Upon the omission of a committee to file such inventory or account, or where the judge is of opinion that the committee should render a more full or satisfactory inventory or account, he may make an order requiring the committee to supply the deficiency. After providing for the entry and enforcement of such an order, and declaring that the failure to obey the same may be punished as if it were made by the court, the section goes on to provide as follows: “ Where the *523 committee fails to comply with the order, within three months after it is made, or, tohere the judge has reason to believe that sufficient cause exists for the removal of the committee, the judge may, in his discretion, appoint a fit person special guardian of the incompetent person with respect to whom the committee was appointed, for the purpose of filing a petition in his behalf for the removal of the committee and prosecuting the necessary proceedings for that purpose.” Here we have, as it seems to me, by the plainest implication a legislative declaration that even where the propriety of the removal of the committee of a lunatic is suggested by facts coming to the knowledge of the judge, either officially or otherwise, a special proceeding for such removal should be instituted before the committee is- actually removed. Such a course of procedure clearly contemplates an application to the court in behalf of the incompetent person, of which notice shall be given to those interested in his person or property. Only in this way can the court become fully advised of the reasons which may exist for and against the proposed removal and also as to the selection of a successor, if a successor must be appointed. The requirement that his removal shall thus be effected only by the institution of a regular proceeding in court is in nowise detrimental to the interests of the incompetent ; for the power of suspension may always be exercised in the meantime if it appears that the interests of the incompetent are threatened with immediate injury. Irrespective, however, of any question as to the reasonableness of the requirement it seems to be quite clear that such procedure is contemplated by the language of the statute, and if that view is correct it is decisive of the present appeal. The present Constitution of the state, adopted in 1894, continues the Supreme Court “ with general jurisdiction in law and equity.” (Const, art. VI, sec. 1.) This preserves the jurisdiction over lunatics and their property which was originally vested in the chancellor and Court of Chancery and was subsequently transferred to the old Supreme Court, as it existed prior to the adoption of the Constitution of 1846. That juris *524 diction, however, as to the manner of its exercise may be regulated by the Legislature, and where this has not been done, it is to be exercised according to the established practice of the courts in lunacy cases. Thus, in Matter of Lamoree (32 Barb. 122) the appointment of a stranger as committee “ to execute a trust so delicate and of such responsibility without the request of the relatives and next of kin of the lunatic, and without notice to the persons having a prospective interest in the estate ” was condemned by the late Mr. Justice John W. Brown of the second judicial district, an able and distinguished judge, because it was “not authorized by the practice of the courts having jurisdiction over such matters.” In England the method of proceeding for the removal of the committee of a lunatic appears to have been by petition to the lord chancellor upon notice to the committee; and if the lord chancellor determined that the committee ought to be removed for any reason, he usually directed a reference to a master in chancery to report as to the appointment of another committee. (Shelford on Lunacy, chap. V, section VII.) Examples of references of this character are to be found in Ex parte Jones (13 Vesey Jr. 237) and Ex parte Mildmay (3 Vesey Jr. 2). I have not been able to find any reported case in this state in which a committee has been removed by the chancellor or a judge acting sua sjponte and without notice. Great confusion and conflict might arise if such orders could properly be made by the ninety-seven Supremo Court justices in this state, each one of whom may exercise the powers of a chancellor. After a special proceeding for the removal of a committee had been regnlarly instituted by petition and upon notice at a Special Term held by one judge, who had referred the matter to a referee to take testimony and report back to the court, another judge, notwithstanding the pendency of this application, could remove tho committee out of hand without notice to anyone of his intended action and could appoint a successor without giving any of the parties ultimately interested in *525 the lunatic’s estate an opportunity to bo heard as to the proper person to be selected. In my opinion the removal of a committee without notice was not sanctioned by the established practice of the courts as it existed prior to the enactment of the provision which I have quoted from section 2312 of the Code of Civil Procedure; and that enactment now constitutes a statutory rule of procedure in such cases, the observance of which is essential to the regularity of an order of removal. This in no manner impairs the jurisdiction of the court, but merely regulates its exercise in such a way as will be most conducive to the orderly administration of justice. The parties entitled to notice of a proceeding for the appointment of a committee should have notice of the proceeding for his removal contemplated by section 2312; and while the latter proceeding is pending no other proceeding for the removal of the committee can properly be entertained at least without notice to the parties to the proceeding first instituted. It appears from the record before us that a proper proceeding for the removal of Messrs. Notman, Iioosevelt and Andrews as committee of the estate of Blanche L. Andrews, and the substitution of a trust company in the place and stead of such committee, had been duly instituted by a petition of Mr. Andrews in the proceeding known as No. 1, and the court had taken cognizance thereof and appointed a special guardian for the incompetent therein, and referred the matter to a referee to take proof and report the testimony to the court with his opinion thereon. If, as the outcome of this proceeding, on the coming in of the report, the court had determined that the facts proved demanded the removal of the committee, and had made an order accordingly, its action would have been in all respects regular. A very different course, however, was adopted. With this proceeding still pending before the referee, and without any testimony having been taken therein, the court by an order made in three different matters involving, as has already been stated, no question of removal whatever, made an order removing the committee and appointing a successor, which could only prop *526 erly and regularly have been made in the removal proceeding which the court by its own action in granting the order of reference, still held sub juclice, and was bound so to hold until it was regularly terminated upon the coming in of the referee’s report. This irregularity in the order below constitutes an error of law which demands a reversal. In the case of Ward v. Angevine (46 Ind. 415) the Court of Common Pleas of Dearborn county had entered a rule requiring a guardian to show cause why he should not be regarded as in contempt and an attachment issued against him for non-obedience to a previous rule requiring him to return his ward to Dearborn county from which he had been removed. The guardian filed an answer supported by depositions assigning the condition of the health of his ward as an excuse for not having complied with the order. Exceptions were taken to the answer and the question whether the exceptions were well taken or not was submitted to the court for decision. Without, however, deciding this question the court made an order which summarily removed the guardian from his trust on account of misconduct. The Supreme Court of Indiana held that this order of removal could not be sustained. The only question before the court below was whether the guardian had or had not shown sufficient cause why he should not be attached for contempt. The question of removed was not then before the court and, therefore, could not properly have been decided. The same is true of the question of removal in the case at bar. The orders of the Special Term and Appellate Division so far as appealed from should be reversed, with costs in all courts. Cullen, Ch. J., Gray, Vann, Werner, Hiscock and Chase, JJ., concur. Orders reversed.