Krekeler v. Thaule.

veyed it to the plaintiff. The plaintiff never placed upon record the conveyance from Thaule to Stoddart, or the conveyance from Stoddart to herself.

The agreement or trust under which Thaule received and held the property was fully executed, and it terminated when Thaule executed the conveyance to Maria Stoddart. The records still showed, however, that Thaule was the owner of the property, and there is no doubt that he was willing to lead the creditors of Krekeler to believe that he was the actual owner, though he had parted with even the nominal interest he had acquired through Krekeler's deed to him. Thaule permitted actions to be brought and defended in his name, and in those actions costs and expenses were necessarily incurred, part of which were paid by him.

Thaule demanded reimbursement for those costs and expenses from Krekeler and his wife, who refused to acknowledge the validity of his claim. He then sought to obtain from Mrs. Krekeler a mortgage upon certain property of hers in Eldridge street, and it is difficult, if not impossible, to determine from the evidence whether he sought that security as an indemnity against those costs and expenses, or whether as a substitute for a second mortgage which he held upon the Eleventh street house.

However that may be, he went to Mrs. Krekeler's rooms, induced her to exhibit to him the deed from himself to Stoddart, and the deed from Stoddart to her, and when he had got them in his hands, placed them in his pocket and instantly fled from the house. The deeds were not on record, and taking advantage of that fact, he conveyed the property to his housekeeper, Metta Heinecke, who conveyed it to the defendant Wessel, and there is no doubt from the evidence and from the course of the defendants in the trial, that the two conveyances last mentioned were voluntary, and made for the sole purpose of placing the property beyond the plaintiff's reach. Thaule's claim in this action amounts to this that by taking the deeds violently from Mrs. Krekeler, he acquired an equity in the property, which entitles him to hold it until he shall be paid the costs and expenses he had pre

In the Matter of Page, a Lunatic.

viously incurred in the actions prosecuted or defended in his name. The mere statement of his claim answers it completely. We cannot, therefore, agree with the special term in its conclusion that Thaule was entitled, before he and the other defendants reconveyed the premises to plaintiff, to be allowed such payments, nor with the conclusion that he was entitled to a personal judgment against her for the amount of such payments.

The judgment should be reversed, and a new trial ordered, costs to abide event.

JOSEPH F. DALY, J., concurred.

Judgment reversed, and new trial ordered, with costs to abide event.

IN THE MATTER OF BENJAMIN PAGE, A LUNATIC.

(Decided April 2d, 1877.)

There is no rule of law excluding the heirs or next of kin of a lunatic from being appointed committee of his person and property, although the court will exercise circumspection and care in appointing those who might be benefited by the lunatic's death, and who would have an interest in accumulating the income of his estate.

The court selects the committee with the view of doing what in that particular case is best for the lunatic, keeping in view the possibility of his recovery; and does not recognize any absolute preference of relatives to strangers or of strangers to relatives.

The report of a referee, to whom it has been referred, to inquire and report a proper person or persons to be the committee of a lunatic, should not be confirmed where it appears to the court that the referee has exercised no discretion in his selection between the only two persons proposed, but has reported one for nomination on the erroneous supposition that the other was, as a matter of law, excluded from appointment, but the matter should be referred back to him for the exercise of that discretion.

The opinion In the Matter of Owens, 5 Daly, 288, explained; by CHARLES P. DALY, Chief Justice.

66

In the Matter of Page, a Lunatic.

APPEAL by David C. Page and others, relatives of the lunatic, from an order of this court, made by Judge VAN BRUNT, confirming the report of John M. Scribner, jr., a referee, to whom it was referred, to inquire and report who was a proper person to be appointed a committee of the person and estate of Page, a lunatic.

Testimony was taken before the referee as to the suitability of two persons proposed for the appointment-Stephen H. Olin, a stranger to the lunatic, whose appointment was urged by one of the relatives, and Robert L. Keen, a cousin of the lunatic, whose appointment was urged by all the other relatives who appeared in the proceedings. The referee reported in favor of the appointment of Stephen H. Olin, but by the written opinion accompanying his report, it appeared that his selection had been determined by the fact that he supposed that under the decision of this court In Matter of Owens (5 Daly, 288), Mr. Keen was excluded from the appointment because he was a first cousin of the lunatic. The portions of his opinion bearing on that point are as follows: Having considered the testimony offered, and the authorities submitted by counsel representing the parties severally petitioning for the appointment of Messrs. Olin and Keen respectively, I am of opinion that Mr. Stephen H. Olin is the person who ought to be appointed such committee. No question is raised by counsel as to the integrity, capacity or fitness of either of the gentlemen named, and the only question which arises is as to the rule which should guide the referee in this selection of a committee. I am of course controlled by the decisions of this court, in which the proceeding was instituted for the appointment of a committee of the said lunatic, and in a recent case in this court, at general term, it was held that care has always been taken not to intrust the custody and estate of a lunatic to those who may be pecuniarily benefited by the lunatic's death, whose interest it may be to keep his property from diminishing, whereby the lunatic may be deprived of necessaries or comforts which might be secured to him from the income of his own estate. (Matter of Owens, 5 Daly, 293.) This being one of the designated tribunals to

In the Matter of Page, a Lunatic.

which has been committed by statute the care and custody of the person and estate of a lunatic or person of unsound mind, residing in the city of New York (Code, section 30, Laws of 1854, chapter 198, section 6; Constitution, article 6, section 12), it has the same jurisdiction as was formerly confided to the Court of Chancery, without any restriction or limitation, and the manner in which the control thus given is to be exercised is entirely a matter of discretion with the court. (Matter of Mason, 1 Barb. 441.) The governing principle on which the court acts in the appointment of a committee, and in the management of the estate of a lunatic, is the interest of the lunatic himself, and not that of those who may have the right of succession. (Matter of Salisbury, 3 Johns. Ch. 347; Matter of Colah, 3 Daly, 529; where Chief Justice Daly in an interesting opinion refers to many authorities on this subject.) I have not overlooked the cases cited by the counsel for the parties requesting the appointment of Mr. Keen, but those authorities, or nearly all of them, were before the court in the Matter of Owens above referred to, and in my opinion, the rule laid down by the court in that case is the one which must govern the referee in the selection of the committee in the present proceeding. Mr. Keen is first cousin of the lunatic, and under the principle of that decision is excluded from appointment as committee. Mr. Olin is not a relation, and would not be entitled to succeed to his estate as heir-atlaw, or next of kin."

Judge VAN BRUNT, on confirming the referee's report, made the following memorandum:- Under the decision in the case of Matter of Owens (5 Daly, 288), I am compelled to confirm this report; but I cannot do so without expressing my dissent from the doctrine enunciated in that case, that next of kin are excluded from appointment as committees of the person or estate of lunatics. I do not think the authorities will support such a doctrine."

Michael H. Cardozo, for the appellant.-A relative is always preferred as the committee of the estate and person of a lunatic rather than a stranger. (Matter of Livingston, 1 Johns. Ch.

In the Matter of Page, a Lunatic.

436; Lamoree's Case [1860], 11 Abb. Pr. 274; In the Matter of Taylor [1842], 9 Paige, 611; Crary's Spec. Pro., vol. 2, ch. XVIII, p. 15, 2d ed.; Barbour's Chancery Practice, vol. 2, p. 236, Book V, ch. 6, 2d ed.; Wait's Practice, vol. 6, p. 426; Hoffman's Chancery Practice [1839], 1st ed., vol. 2, pp. 258, 260; 1 Bouv. Law Dic., p. 297.)

Our law in relation to persons of unsound mind comes from England, and the principles there determined, the rules there established, in the absence of legislation should govern here. The authorities in the courts of that country unite in giving the preference to a relative. (Elmer on Practice in Lunacy, 5th ed. [1872], p. 25; Phillipps on Lunacy, p. 281; Shelford on Lunacy, p. 131; 2 Law Lib. p. 83; Bacon's Abridg. Bouvier's ed., vol. 5, page 12, where it is said: "In the appointment of committees, relations, unless there is some specific objection, are preferred to strangers. It is no objection in modern practice, though it was so formerly, that the committee of the person is entitled, as heir-at-law, upon the death of the lunatic, to his real estate. That he is the next of kin to the lunatic, and may come in for a share of the personal property under the statute of distributions, has never been considered as an objection." Stock on Non Compos Mentis, p. 121, et seq.; 9 Law Lib. [N.S.] II., page 71; 1 Fonblanque's Eq. 53 [note o]; Petersdorff's Abm., 2d ed., vol. 5, p. 409 [1], where it is said that "relations are in general appointed in preference to strangers, unless some specific objection be urged;" Dormer's Case [1724], 2 P. Wm. 263, here the uncle of the lunatic pointed committee; Ex parte Ludlow [1731], id. 635; Ex parte Lyne [1735], Cas. Temp. Talb. 142, the next of kin was, together with her husband, appointed committee of the lunatic's estate; Ex parte Grimstone [1772], Amb. 706, the heirs-at-law of the lunatic were entrusted with the custody of his estate; Ex parte Cockayne [1802], 7 Ves. 591 and note, the lunatic's brother of the half blood was made committee of his estate and person; Ex parte Le Heup [1811], 18 Ves. 221, where an uncle of the lunatic was made committee; Ex parte Pickard [1814], 3 Ves. & Bea. 127, here the lunatic's sister

was ap