He may be removed by the court for cause shown, for example, that he is wasting or mismanaging the estate; that he refuses or neglects to give security when ordered to do so by the court; and habitual drunkenness, as evidence of mismanagement, has been holden to be a sufficient cause.95 361. On the death of the guardian those who represent him are required to give such an account of his guardianship as it is in their power to make. And if two persons are appointed guardians for one ward, during his minority, or until further order, the guardianship is at an end on the death of one of them, and there must be a new appointment." Immediately on the death of the ward all the guardian's functions cease, because the property in his hands has become, by that event, vested in others. The guardian is then required to make out his account. 362. When.a female ward marries, at common law the guardianship determines, because immediately on the marriage, the husband becomes her guardian; for it would be inconsistent with the marital rights that any one should have the control of another man's wife.97 The guardianship determines also when a feme sole guardian marries.98 363. The rule that a man attains his majority at the age of twenty-one years accomplished, is perhaps universal in the United States. At this period every man is in the full enjoyment of his civil and political rights; he has no other guardian than the law, which watches over all alike. He is released from all legal personal ties whatever, which he owed to others on account of his infancy, but he is bound by duty to respect and honor his parents. 364. But owing to the infirmities of human nature, and to accidents, to which all men are subject, the law has wisely provided for the protection of those who are unable to take care of themselves. When, therefore, an individual loses his reason, or otherwise becomes incapable of governing himself, the law provides a guardian, or committee, to take care of his person and estate, and deprives him of this general right of self-government. 365. It is to be observed that sanity is always presumed, and that the party who alleges insanity, must prove it, except when it has once been established, and then it must be shown not to exist.99 366. Before a person can be deprived of his civil and political rights, on the ground of insanity, an inquisition must be found, in due form of law, that he is of unsound mind, and the court must give it the sanction of their judgment; then the party is deprived of the right of making contracts, and can exercise no civil or political rights, and in general is not criminally responsible for his acts. This state, in the civil law, is called interdiction. 367. It will be proper to inquire for what causes a party may be interdicted, or when a commission of lunacy will issue or an inquisition be found; into the proceedings in lunacy; of the consequences of finding a man non compos; and of the restoration of the lunatic. 368. The causes for which a commission will be issued and an inquisition found are those which arise from a defect of the understanding; and those Kettletas v. Gardner, 1 Paige, Ch. N. Y. 488. *Bradshaw v. Bradshaw, 1 Russ. Ch. 528. 2 Inst. 260; Kettletas v. Gardner, 1 Paige, Ch. N. Y. 488. See Matter of Whitaker, 4 Johns. N. Y. 378; Roach v. Garvan, 1 Ves. Ch. 159; Burr v. Wilson, 18 Tex. 367; before No. 344. Field v. Torrey, 7 Vt. 372; Contra Carlisle v. Tuttle, 30 Ala. N. s. 613. *1 Hale, P. C. 33; Shelford, Lun. 36; Armstrong v. Tinnons, 3 Harr. Del. 342; Jackson v. Van Dusen, 5 Johns. N. Y. 144; Lee v. Lee, 4 McCord, So. C. 183; Jackson v. King, 4 Cow. N. Y. 207; State v. Starling, 6 Jones, No. C. 366; Wray v. Wray, 33 Ala. N. s. 187; Newcomb v. State, 37 Miss. 383; Baxter v. Abbott, 7 Gray, Mass. 71; Menkins v Lightner, 18 IIL. 282. which are the effect of bad habits, which the unfortunate subjects of them cannot control. They will be severally examined. 369. By non compos mentis is meant that state of the intellect which renders a person of unsound mind, memory and understanding. This is a generic. term, and includes all the species of madness, whether such madness arise from idiocy, sickness, lunacy, or drunkenness. It is nearly similar to insanity.100 370. Insanity is a continued impetuosity of thought, which for the time being unfits a man for judging and acting in relation to the matter in question, with the composure requisite for the maintenance of the social relations of life. But it is almost impossible to give any satisfactory definition of insanity, which shall, with precision, include all cases of insanity and exclude all others." 101 371. Unsoundness of mind, or unsoundness of memory, are expressions which have been used in several statutes, and sometimes indiscriminately, to signify not only lunacy, but permanent adventitious insanity, as distinguished from idiocy, 102 372. Idiocy is that condition of mind in which the reflective, or all or part of the reflective powers, are either entirely wanting, or are manifested to the least possible extent. It is generally the consequence of organic defect. But although a person may have a weak mind, yet if he appears to be capable of acquiring by conversation and instruction such a competent understanding as to enable him to govern himself and his estate, and a memory sufficient to retain the knowledge which he may acquire, he is not to be considered in law as an idiot.103 According to Lord Coke, persons born deaf, dumb and blind, are to be considered as idiots, because the senses which are the inlets of knowledge, are closed.104 But science had not in his time yet been able to teach such unfortunate beings. Now, such persons being taught not only to comprehend others, but to convey their ideas by writing, 105 would probably be considered as persons born deaf and dumb who can write, and convey their ideas. 106 373. Lunacy is a disease of the mind, which is differently defined as it applies to a class of disorders, or only to one species of them. As a general term, it includes all the varieties of mental disorders, not fatuous; in this sense, it is synonymous with non compos mentis, or of unsound mind. But in a more restricted sense, lunacy is the state of one who has had understanding, but who, by disease, grief or other accident, has lost the use of his reason.107 374. Imbecility is that state of an individual who is of such weak mind, that, without having entirely lost his reason, he is unable to govern his person or manage his property. Imbecility and weakness of mind may exist in different degrees, between the limits of absolute idiocy on the one hand, and perfect capacity on the other, 108 375. Demency is the condition of one who is habitually deprived of reason. 376. Habitual drunkenness is also such a malady, that, in some states, by statutory provisions, it is a sufficient cause for supporting a commission of lunacy, or a commission in the nature of a commission of lunacy. 377. Being a spendthrift, is, in some states, a sufficient cause for depriving him of his civil rights. He is described in a statute to be a person, who, by excessive drinking, gaming, idleness, or debauchery of any kind, shall so spend, 100 Coke, Litt. 247; 4 Coke, 124; 1 Phill. Eccl. 100. 102 Lord Ely's case, 1 Ridgw. App. Ir. 518; 3 Atk. Ch. 171. 103 Lord Ely's case, 1 Ridgw. App. Ir. 522. 101 Ray, Med. Jur. & 24. 104 Coke, Litt. 42 b. 105 A young woman named Laura Bridgeman, born deaf, dumb and blind, could read by means of touch, and wrote a very good hand, when seen by the author at the Blind Asylum in South Boston. 106 Dickinson v. Blisset, 1 Dick. Ch. 268. See Brower v. Fisher, 4 Johns. Ch. N. Y. 441. 107 1 Sharswood, Blackst. Comm. 304; Ex parte Vanauken, 2 Stockt. N. J. 186. 108 Shelford, Lun. 6; Stock, Non. Comp. Men. 5; Dods v. Wilson, Const. So. C. 448 waste, or lessen his estate, as to expose himself or his family to want and suffering, or expose the town to charge and expense, for support of himself and family.109 378. In order to support a commission of lunacy, there must be proof that the individual is of such unsound mind, that he is unable to take care of his person and to manage his estate. If he can do this, it does not matter how eccentric he may be in other respects. He who is mistaken in speculative ideas, palpably false, is a visionary man, but, if he can take care of his person and manage his estate, he cannot be found to be of unsound mind. Insanity is not always obvious; on the contrary, it is frequently extremely difficult to detect it, as it often eludes the grasp of the observer; whether it did or did not exist at a particular period, is oftentimes a perplexing question to courts and juries.110 379. The state of unsoundness of mind must have been habitual. A man is not to be condemned for isolated acts, for the wisest is sometimes absent. Sickness, a violent passion, a great affliction may temporarily eclipse the clearest mind. But when a man is habitually unreasonable, and his mind manifests itself in a healthy state only by intervals, and the language and the daily acts of the individual are those of an insane man, then there is an habitual state of demency." But although, in order to found proceedings in lunacy, it is requisite that the insanity should be habitual, yet it is not necessary it should be continued. Some are crazy who have lucid intervals, during which they appear to have their reason, but these lucid periods not being habitual, they are not the less liable to a commission of lunacy. 380. As the finding a man a lunatic deprives a citizen of the free exercise of his rights; as it takes away from him the use and disposition of his property, and frequently of his liberty and of his actions; and as it also causes him extreme displeasure, and is injurious to his reputation, it ought to take place only in cases of necessity, and when his own interest, rather than that of his family, requires it, for his interest is in general alone considered. But, when the man is so crazy that he becomes dangerous to society, the commission of lunacy is issued, and the inquisition is found more for the benefit of society than for the advantage of the crazy man.' 112 381. Upon principle, it seems that a commission of lunacy ought not to be issued against an infant, because, in general, as the court has power over the infant and his estate, the proceeding seems unnecessary; but such a commission has been issued upon the ground that, under certain circumstances, there would be more ample power given in lunacy in managing the estate of the ward.113 382. The proceedings in lunacy are regulated by statute in the different states, and are taken by courts of chancery, probate or surrogate's courts, or such other tribunal as may be invested with power in the matter. A judicial proceeding is in general necessary to authorize any one to take charge of a lunatic's person or property, but if it is necessary a parent or a husband may cause his child or wife to be confined in an insane asylum, taking care to exercise no unnecessary restraint or improper treatment. As this power may cause great injustice by its abuse, it is not favored by the courts, and if the restraint is improper all the guilty parties are liable both civilly and criminally. The modes of proceeding vary in the different states, and we can only give an outline of the method followed in England and adopted in many of the states. 383. The right to apply for a commission of lunacy is inherent in the father or mother against the child, and vice versa. A husband may prefer a petition against his wife, and vice versa. And any other relation, or even a stranger has been allowed to present a petition for that purpose.115 But the nearest relations of an alleged lunatic will be preferred to strangers, unless there be a special cause.116 In the absence of relations, or when the public security requires it, as where the lunatic is furious, the attorney general may present the petition."7 384. The persons appointed by the court having jurisdiction of the case to execute a commission of lunacy are called commissioners. They are required to execute the commission in a proper place, in a proper manner, and to make a proper return to it. 385. It is but reasonable that the commission should be executed in such place that the lunatic may be seen, if required, and where his friends are to be found, who may see that his interests are protected, and where he may himself appear and defend himself.118 Accordingly the common order of the court or chancellor who has jurisdiction of the case directs that the commission of lunacy shall be executed in or near the place of residence of the supposed lunatic.' 119 386. In obedience to the exigency of the commission, the sheriff is bound to summon the number of jurors therein directed; the commissioners and the jury being impanelled, sit together and compose the court which is to try whether the person alleged to be a lunatic is so or not. The jury are all sworn or affirmed, and then hear such evidence as the commissioners admit. The witnesses must be examined openly in the presence of the commissioners, the jury, the alleged lunatic, and all other persons who may happen to be present. At least twelve of the jury must agree to find against the alleged lunatic before the inquisition can be found, and where the statutes require but twelve jurors they must be unanimous. The commission and the verdict must be consistent with each other upon the face of the record; that is, the inquisition must be in the words of the commission or in equivalent words. 387. The inquisition is an examination of the facts authorized to be inquired into, made by the commissioners and the jury; the instrument of writing on which their decision is made is also called an inquisition. Its requisites are the following: It must state where it was taken; when it was taken; before whom and by what authority; the names of the jurors, and their qualifications; of what they were charged to inquire; their finding; the date of their finding; the signatures of the commissioners and of the jurors who consent to it. The finding against a person non compos mentis should state the fact positively that he is an idiot,120 non compos mentis, or of unsound mind.12 Inquisitions with returns finding persons in the following conditions, namely: "Not sufficient to manage his person and estate;"122 "not of sufficient understanding to manage her own affairs;" 123 "not a lunatic, but incapable;" 124 "not a lunatic, yet not proper to take care of his affairs during his fits;" 125 "weak for the last twenty years; "126 "worn out with age, and incapable of managing her own 115 1 Collinson, Lun. 377; Shelford, Lun. 93; Ex parte Ogle, 15 Ves. Ch. 112. 116 Ex parte Tomlinson, 1 Ves. & B. Ch. Ir. 59. 117 1 Collinson, Lun. 125; Shelford, Lun. 93. 118 Ex parte Cranmer, 12 Ves. Ch. 445. See 1 Paris & F. Med. Jur. 394, n. (a). 119 Shelford, Lun. 95, 96. 120 Prodgers v. Frazier, 3 Mod. 43; 1 Vern. Ch. 16. 121 Lower Augusta v. Northumberland, 37 Penn. St. 143. 122 Ex parte Read, 1 Atk. Ch. 160; 2 Inst. 4051. 123 Ex parte Harvey, 3 Atk. Ch. 169. 125 Ex parte Hals, 2 Ves. Sen. Ch. 405. 124 Ex parte Ashton, 3 Atk. Ch. 169. 126 Hubsey's Case, 3 Atk. Ch. 173. affairs;"17"by reason of old age and sickness is so deprived of reason as to be unable to manage his estate," have been held not to be a finding of non compos within the statute." 128 When the inquisition is quashed as repugnant or for some other legal cause, the course is to issue a new one by beginning de 129 and not to direct a melius inquirendum.13 novo, 388. The principles of the statute of the 2 and 3 Edw. VI, c. 8, s. 6, which authorize any person who shall feel himself aggrieved by such office or inquisition, to traverse the same, have been generally adopted either by statutes or in practice; so that either the person found to be a lunatic or his friends may claim a trial by jury.131 389. Upon the return of an inquisition, when there is no traverse, or after the finding of a jury that the party is non compos mentis, a lunatic, or of unsound mind, the court appoint a committee to take care of the person and estate of the lunatic, or to take care of the person only or of the estate only. 390. In the selection of the committee of the person of a non compos, the next of kin are generally preferred. But the choice is made for the benefit of the lunatic and not of the committee, and for sufficient reasons a stranger will be preferred.132 The committee is required to administer all the comfort and amusement which the nature of the case will admit, and the funds of the lunatic afford; and when the unhappy person is not under the immediate care of the committee, the latter ought to engage suitable persons to watch over him, and, with the aid of a physician, do all they can to restore him to health.133 In the performance of his arduous duties, the court upon application will protect and aid the committee by their advice and direction.134 136 391. The heir-at-law is selected in the appointment of the committee of the estate in preference to others, because he has the greatest inducement to take good care of it,135 and a relation will, cæteris paribus, be preferred to a stranger." In the management of the estate, the committee is considered as a mere commissioner of the court, acting under its direction and control, and is responsible to the court as a receiver, removable in its discretion.137 The committee is bound to file an account whenever required by the court, and is liable generally as a guardian, and entitled to a just compensation for his services. 392. When a person has been found to be non compos, an idiot, a lunatic, or one of unsound mind, he is deprived of the right of making any contract, bringing or defending an action, or indeed of performing any of the various acts required of a man sui juris. He does everything by his committee. Actions may be brought by the committee in the name of the lunatic, and actions brought against the latter must be defended by the committee.138 The lunatic cannot exercise any civil or political right, and he is incapable of committing any crime.139 127 Wall's Case, 3 Atk. Ch. 173. 129 Hals' Case, 2 Ves. Sen. Ch. 305. 128 John Beaumont, 1 Whart. Penn. 52. 130 Ex parte Cranmer, 12 Ves. Ch. 154. 131 Shelford, Lun. 115. In re Runey Dey, 1 Stockt. N. J. 181; See Dowell v. Jacks, 5 Jones, Eq. No. C, 417. 133 Shelford, Lun. 138, 139. 133 Shelford, Lun. 142. See, as to his duties, Naylor v. Naylor, 4 Dan. Ky. 346; In the matter of Taylor, 9 Paige, Ch. N. Y. 611. 134 In the matter of Lynch, 5 Paige, Ch. N. Y. 120; Matter of Heller, 2 Paige, Ch. N. Y. 199; In the matter of Livingston, 9 Paige, Ch. N. Y. 440. 1351 Sharswood, Blackst. Comm. 304. 17 Bolling v. Turner, 6 Rand. Va. 584. 136 Ex parte Le Heup, 18 Ves. Ch. 227. 133 Field v. Lucas, 21 Ga. 447; Aldridge v. Montgomery, 9 Ind. 302. 139 Stock, Non. Comp. Ment. passim. |