cuit, for the preceding year, and report to the court at CHAP. IV. the next term in that circuit, whether such accounts appear to have been correctly kept; whether there has been any waste or misapplication of the funds, and whether the same are properly and safely invested or secured, so far as he can ascertain the same from the examination of such accounts and inventories on file.(7) The petitions which may grow out of the preceding appointment are: 1. Those in behalf of the committee; 2. creditors and others including the lunatics. PETITIONS INCIDENTAL. 1. In behalf of the committee. 2. Of creditors and others. § 18. Petitions after appointment of a com tee. Petitions may be presented by the committee: 1st; Where the personal property of the idiot, lunatic, non compos or drunkard, will not pay his debts, the commit- mittee. first, tee may petition for an order to lease mortgage or sell so on behalf of much of the real as will satisfy the demands;(1) 2. peti- the committion may be made to lease, mortgage or sell, where the personal and the rents and profits of the real are insufficient to maintain the idiot, &c. or his family, or to educate his children;(2) 3. for an authority to convey or assure where the idiot, &c. possesses real, by way of mortgage or as trustee for others;(3) 4. for an order to restrain waste(4) on the real estate of the lunatic, &c. 5. for authority and direction in the management of the estate, as to sell timber or convert the real into personal, when for the benefit of the lunatic,(5) &c. 6. to pass accounts, settle accounts with lunatic restored to reason, or to pass accounts, accept resignation and appoint a new committee; 7. for an order that the lunatic, &c. be committed to the care of the overseers of the poor, the estate being exhausted in his maintenance.(6) 8. For partition, &c. § 19. The petition, beside the general requisites [ch. 2. § 5, 6.] Petitions must in the first case, set forth the particulars and amount thereon in all of the real and personal, the application or partial payments made, and an account of the debts and demands R. 156. see 2 J. Ch. 242. 401. 2 R. S. 53. § 11. vid. 2 J. Ch. 400. (2) 2 R. S. 54. 16. (3) 2 R. S. 55. § 19. (4) 7 J. Ch. 24. (5) 3 J. Ch. 347. (6) 2J. Ch. 400. case of M'Farlan. the cases. CHAP. IV. existing;(7) in the second case a similar statement varied or added to, to meet the object of the petition, and in all the other cases, the grounds of the application, verified in the usual manner [ch. 2. § 7.] or supported by extraneous affidavits or official certificates. ¡ 20. Proceedings in these cases, references, &c The proceedings until the petitions are presented, and the first orders made, are similar to those in other petition causes, [ch. 2. §5, &c.] and the first order in all the cases excepting perhaps the 4th, may be for a reference to a master; in the 1st, 2d, and 3d cases-to enquire into the truth, to hear all parties interested in the real, and report with all convenient speed, varying each order to meet the object of the particular application; in the 5th, to enquire into the truth, to hear all parties interested in the inheritance, or who may be entitled to the succession, and ascertain if the sale of the timber, or the conversion of the real into personal would be for the benefit of the lunatic, &c.; in the 6th and 7th, to enquire into the truth or examine into, pass upon, or settle the accounts and report thereon. The 4th case may require immediate and summary relief, and an order may be instantly granted to restrain waste, and upon the violation thereof, an attachment on motion issue, or the proceedings may be as in the similar case of petitions to stay waste on premises purchased under execution and subject to redemption. [post ch. 5.] The injunction may issue, but on the condition required where temporary relief is sought, as directed.[ch. 2. § 11, 12.] If on the day appointed in such case cause be shown against the application, the order may be discharged or a reference directed to enquire and hear all parties. The references to the master are conducted in the ordinary manner. [ch. 2. § 36, &c.] On the coming in of the report-if it appear in the first case that the personal has been exhausted, or in the second case that the personal, and the rents and profits of the real are insufficient to maintain, educate, &c. an order may be made for the mortgage, lease or sale of so much of the real as will pay the debts or maintain, educate, &c. But court in the first case may require of the committee additional security for the application of moneys so to be raised from the real, and will direct in the second case how the proceeds shall be secured and appropriated. The court will further give such orders respecting the time and manner of any sale so authorised that no conveyance (7) See 2 R. S. 51-5. pursuant to sale be executed until the sale is reported on CHAP. IV. oath of the committee and confirmed by the court.(12)In the third case (where property is held in trust or mortgage.) the court will by order direct how the conveyance or assurances shall be made, and for a reference and like proceedings. In the 4th case on coming in of the report, the order to stay waste may be continued or made perpetual. In the 5th case, if the report be in favor of the sale of the real, or the conversion of the personal into real, the proceedings may be similar to those in the first and second cases; additional security be required and no deed be executed till report of the committee and confirmation thereof. In the 6th case, on report, the same may be confirmed, and the accounts thus adjusted, carried to the credit of the committee; on finally passing and settling his accounts, his resignation may be accepted, and his bond ordered to be cancelled. So in the 7th case, if the report be that the accounts being taken it appears that the estate is exhausted, the court may relieve the committee of the trust and direct the future custody of the lunatic, &c. pursuant to the provisions of the law. 21. Wherever the committee is ordered to sell, he will be Sale, &c. regoverned by the special directions in the order of sale, port of comand if the lands are in the city of New-York, also by the mittee; enrolstanding rule of the court in relation to such sales by any cree, &c. committee, guardian or master. Where lands in the city of New-York are sold by a master, guardian, or committee, they shall be sold at public vendue, at the Merchants' Exchange, between twelve o'clock at noon and three in the afternoon, unless otherwise specially directed in the decree or order of sale, The notice of such sale, except where a different notice is required by law, or by the order of the court, shall be published in one or more of the daily papers of that city for three weeks immediately previous to the time of sale, at least twice in each week. When lands in any other part of the state are directed to be sold at auction, notice of the sale shall be given for the same time, and in the same manner as is required by law on sales of real estate by sheriffs on execution, and by masters and commissioners in partition.(13) The sale being made, the case is noti(12)2 R. S. 51-5. (13) R. 139. ment of de CHAP. IV. ced for a regular motion day upon the report of the committee, and thereupon the same may be confirmed and a deed directed, or further order taken as the court deem expedient. To secure and perpetuate the title of the purchaser, the proceedings may be enrolled as directed, [ch. 2. § 83.] and the deed when executed and duly acknowledged or proved, may be recorded. Every conveyance, mortgage, lease and assurance made under the order of the court pursuant to the provisions of the statute,(3) will be valid as if made by the idiot, lunatic, &c. when of sound mind. (4) But the real cannot be leased for more than five years or mortgaged or aliened or disposed of otherwise than as directed by the statute.(5) $ 22. Proceeds. The committee in making the application of the proceeds in the first case must pay all debts in equal proportions without preference of sealed instruments.(6) In the second case the court directs how the proceeds are § 23. 8. By commit- to be secured and applied.(7) 8. Another application by tee for leave to the committee may be made for an order authorising such agree to a par- committee to agree to a partition of real estate, which by tition. any idiot, lunatic, or person mentally incapable of managing his affairs, is held in joint tenancy, or in common, or in any other manner to authorise his being made a party in a suit in partition. Whenever it appears to the court on such application, that the interest of the idiot, lunatic or other person, or of any of the parties interested in the estate, requires a partition it will be referred to a master, to enquire into and report upon the circumstances. Upon the coming in of the report and a hearing and examination of the matter, the court may authorise the committee to agree to a partition of such estate and to execute releases of the right of the lunatic, &c. in and to the share of the estate falling to the other joint tenants or tenants in common. Such releases will be as valid and effectual to convey the share of the lunatic, &c. as if the same had been executed by him when of sound mind and understanding and for a valuable consideration.(8) (3) 2 R. S. 51. tit. 2. (4) ib. 55. 21. (5) ib. 23. (6) ib. 54. § 15. 8) 2 R. S. 331. § 89-91. 2 BY CREDITORS AND OTHERS INTERESTED. CHAP. IV. $24. creditors and 1. Creditors and others interested may apply by petition to compel committee to file an inventory of the es- Petitions by tate ;(1) or, 2. After inventory filed, creditors may pe- others. tition for payment of debts out of the estate, (2) and if necessary for that purpose that the real estate be sold, (3) or rather that the committee be ordered to mortgage, sell or lease the estate pro tanto, for the purpose of paying debts pursuant to the statute.(4) 3. Any person entitled to a conveyance or assurance may, by petition or bill, apply to compel committee of any real estate held by the lunatic, &c. by way of mortgage or as trustee for others, to execute the conveyance or assurance.(5) 4. The court may also compel a specific performance by committee of any bargain, contract or agreement made by the lunatic, &c. when of sane mind.(6) 5. Application may also be made for the suspension of the powers of committee, or for his removal and appointment of a new committee, on the ground of mismanagement or hazard of the fund, &c. 6. The lunatic, &c. may apply for a supersedeas to the commission and a restoration of his estate, on the ground of restored sanity,(7) and for a settlement of accounts. The proceedings in the petitions by creditors and § 25. others bear so close an analogy to those last considered Petitions and proceedings. that this branch of the subject may be disposed of by a few observations. In the first case the filing of the inventory after expiration of six months from the appointment of the committee, may be compelled by process or order of court, usual in such cases. If after service of the order the committee neglect to file the inventory under oath as prescribed,(8) [ante § 17.] an order either absolute or nisi, may be granted for an attachment. [See ch.2. $30.84.]In the second case, as the statute(9)now directs that the real estate of the idiot, lunatic, &c, shall not be aliened or disposed of otherwise than therein di (1) See 2 R. S. 53. § 8, 9, 10. 2 J. Ch. 242. (2) 2 J. Ch. 242. (3) 2 J. Ch. 400.242. be sold, without any previous (7) 3 J. Ch. 567. 6 J. Ch. 440. |