In re M'Clean

The Chancellor. I am still of opinion, that the petitioner is in a state of confirmed and unchanged lunacy; yet, in order to give satisfaction to those persons who appear to entertain a different opinion, I will give the petitioner an opportunity to traverse the former inquisition, or to try the question of returned sanity, upon a feigned issue. The granting the one or the other, no doubt, rests in sound discretion; and, as the estate of the lunatic was acquired by the industry and prudence of the wife, and is necessary for the maintenance of her and her children, as well as of her husband, he ought not, in a case in which the lunacy was so satisfactorily established, in the first instance, and appears to be of such an inveterate and obstinate nature, to have a trial, at the expense of the property, which is nominally in the hands of the committee, though, in fact, by their judicious arrangement, under the actual superititendance of the wife. If he succeeded to make out his sanity, and the committee should be discharged, the petitioner would, of course, be enabled to defray the expense out of the estate. But, if it should be otherwise, the experiment, in a case so strongly marked, and in which my judgment, on the proof, is so decidedly against him, ought to be made at his own expense, or with the aid of such, persons, as appear to take an interest in his favour. To allow a traverse, or issue, at the charge of the estate of the lunatic, would be liable to abuse, for he would always be able to procure any kind of assistance, and maintain a ceaseless litigation, when resort could be had to the funds in the hands of his wife. I ought not to permit them to be exhausted in litigation, without some solid grounds, or contrary to my own judgment and convictions. I shall, accordingly, direct, that a traverse, or feigned issue, under the direction of his counsel, be made up and prepared, in conjunction with the committee, according to the course and practice of the Court, to try the question, whether Petar M'Clean be a lunatic, or of unsound mind, [444] and mentally incapable of managing his affairs; and that it be tried at the next Columbia Circuit, but at the expense of the petitioner; and that the cost and expense thereof be not charged against his estate, which is in the hands, or under the control of the committee. Order accordingly. November 12,, 1822. The petition of the lunatic was again presented, praying that the commission might be superseded. The petition was accompanied with the affidavits of twenty-nine persons, deposing generally, from a short and recent acquaintance with the petitioner, that they do not discover any marks or evidence of insanity. The Chancellor made an order to the effect of the one of the 7th of May last, and declared, that the reasons stated in that order, why the petitioner should be relieved only on the terms mentioned in the order, still existed; and that, after the confirmed and inveterate lunacy of above eleven years, and fatal to the peace and interest of his wife and children, it would be unjust, and contrary to the duty of the Court, to grant relief, except upon the terms stated in that order. Order accordingly.