Supreme Council of the Royal Arcanum v. Nicholson

This appeal presents an important question of practice relating to the execution of the writ de lunatico inquirendo. The question arises in this way. Upon the application of Camilla D. Nicholson, Jr., to the Circuit Court No. 2, of Baltimore City, a writ de lunatico inquirendo was issued to the Sheriff of Baltimore City commanding him to summon a jury to inquire into the mental condition of Camilla D. Nicholson, who was alleged in the petition to be of unsound mind and a lunatic. The jury was summoned as directed, and by their inquisition, which was returned to the Court by the Sheriff, Camilla D. Nicholson was found to be of unsound mind, and incapable of the government of herself, or the management of her estate, and that she had been in such state of mind for more than three years past. The inquisition was confirmed by the Court, and on the same day, towit, the 1st day of December, 1905, Camilla D. Nicholson, Jr., was appointed committee of the person and estate of the said Camilla D. Nicholson.

The Supreme Council of the Royal Arcanum had issued a benefit certificate to Edwin C. Nicholson who had died on the 7th day of October, 1905, before the lunacy proceedings had been instituted. By the terms of the certificate the sum of three thousand dollars was payable to the alleged lunatic upon the death of the assured. The Court passed an order upon the petition of the committee authorizing her to employ counsel and institute proceedings for the collection of said sum. In pursuance of that order, the committee sued the Supreme Council of the Royal Arcanum in the Superior Court of Baltimore City for the recovery of the amount payable under the benefit certificate. Thereupon the Supreme Council of the Royal Arcanum and Camilla D. Nicholson filed a petition in the lunacy case wherein they prayed:

(a) "That the said writ de lunatico inquirendo hitherto issued in these proceedings, and the said inquisition held by the Sheriff of Baltimore City aforesaid, and the return of the said writ may be quashed, and that the order confirming the said inquisition may be set aside, and that a new writ de lunaticoinquirendo may issue in order that the sanity of the said Camilla D. Nicholson may be lawfully inquired into, and that in the execution of the same her legal rights and personal liberty and the care of her property may be regarded.

(b) That an order may be passed in the premises forbidding the said Camilla D. Nicholson, Jr., committee as aforesaid, to prosecute the said suit in the Superior Court of Baltimore City until the further order of this Court.

(c) That an order may be passed in the premises requiring the said Camilla D. Nicholson, Jr., committee as aforesaid, to show cause on or before a day to be named therein why the relief prayed for should not be granted."

The grounds upon which this relief was asked are stated in third paragraph of the petition as follows: "That the appointment of the said Camilla D. Nicholson, Jr., as committee of the said Camilla D. Nicholson, is defective and illegal on the face of the inquisition, and in the manner in which the writ was executed for the reason that the said Camilla D. Nicholson, who was at the time of the execution of the said writ within the State of Maryland, had no opportunity presented to her to appear in person before said jury, and had no notice of the time and place of the inquisition, and did not appear before said jury, although it was practical and convenient for her to do so, and it was practical and convenient for said jury to have required her attendance before them, and to have notified her of said inquisition, and that said jury made said inquisition without having said lunatic before them, and without seeing her in person in order to judge of her mental condition and without said alleged lunatic having an opportunity to be heard, and that it does not appear on the face of the proceedings, nor upon the face of the return of the writ that said lunatic appeared before said jury, or that her presence was impracticable or inconvenient, or that there was any reason for her absence, or that she had notice of said inquisition; and your petitioners further represent that said Camilla D. Nicholson did not in fact appear before said jury of inquisition, and that under the circumstances of this case her presence was indispensably necessary."

Upon the filing of the petition the Court passed an ordernisi, requiring the committee to show cause on or before a certain day why the relief prayed for should not be granted, and in the meantime she was enjoined from prosecuting the suit at law. To this petition Camilla D. Nicholson, Jr., the committee, filed a demurrer. The Court sustained the demurrer and dismissed the petition, and from this order Camilla D. Nicholson and the Supreme Council of the Royal Arcanum appealed.

The main and important question presented by the appeal is this: Do the reasons assigned in the third paragraph of the petition, which has been hereinbefore transcribed in full, constitute sufficient ground for setting aside the inquisition and return, and the order of confirmation passed thereon? So far as we have been able to discover this precise question has not heretofore been passed upon by this Court, but upon general principles of law and well considered cases in other jurisdictions it would seem to be simple and free from difficulty. It is difficult to over-estimate the gravity and seriousness of the consequences to the citizen which necessarily flow from an adjudication declaring him to be non composmentis. He is divested of his property, and may be restrained of his liberty, and incarcerated in an insane asylum. To assert that this can be done, under the general principles of American law, without notice, or opportunity to be be heard, is shocking to one's sense of justice and humanity. No such general rule of procedure can be recognized by the American Courts. On the contrary the well considered cases, where the question has arisen, have been uniform in holding that the person proceeded against must have reasonable notice of the time and place of taking the inquisition, and an opportunity to attend and make his defence. This is the general rule, and can only be departed from in such exceptional cases as shall be hereafter mentioned.

In 16 Am. Eng. Ency. of Law, p. 567, it is stated that "where, as in England, a traverse of the inquisition is deemed a matter of right, it seems that a failure to serve notice on the alleged lunatic does not invalidate the proceeding. But in the United States it is generally held that a person against whom a commission of lunacy is issued is entitled to reasonable notice of the time and place of the inquisition, and has a right to be present and contest the proceeding." In Chase v. Hathaway,14 Mass. 222, the appellant was found by a jury to be non composmentis, the inquisition was confirmed, and the appellee was appointed guardian of the person and estate of the alleged lunatic, who filed a motion to quash the proceeding, and assigned, among other reasons, the following: 2nd. "That he had no notice of the time and place, when and where the said select-men made their pretended inquisition and adjudication. 3rd. That notice was not given him that any representation, or adjudication was exhibited against him; or notice that any decree would be made by the Court affecting his rights, and that he was divested of his liberty and property, without any opportunity afforded him of being heard upon the subject."

In passing upon these grounds of exception the Court say: "There being no provision in the statute for a notice to the party who is alleged to be incompetent by reason of insanity to manage his estate, it seems that the Judge of Probate did not think such notice essential to the proceedings. But we are of opinion that, notwithstanding the silence of the statute, no decree of a Probate Court so materially affecting the right of property and the person can be valid unless the party to be affected has an opportunity to be heard in defense of his rights." "It is a fundamental principle of justice, essential to every free government, that every citizen shall be maintained in the enjoyment of his liberty and property," unless he has forfeited them by the standing laws of the community and has an opportunity to answer snch charges as according to those laws, will justify a forfeiture, or suspension of them. And whenever the Legislature has provided that, on account of crime, or misfortune, the public safety or convenince demands a suspension of these essential rights of the individual and has provided a judicial process, by which the facts shall be ascertained, it is to be understood as required that the tribunal, to which is committed the duty of inquiring and determining shall give opportunity to the subject to be heard in support of his innocence, or his capacity. It has been intimated that notice to an insane person would be of no avail, because he would be incapable of deriving advantage from it. But the question upon which the whole proceeding turns, is, whether he is insane, for the presumption of law is that every man is of sound mind until the contrary is proved. And it being possible that interested relatives might falsely suggest insanity, with a view to deprive the party of the power of disposing of his estate, that very possibility should be guarded against by personal notice to him when practicable, that he may expose himself to the view of the Judge, and prove by his conduct and actions the falsity of the charge. * * * Indeed, it would seem strange, that the whole estate of the citizen might be taken from him, and committed to others, and his personal liberty be restrained, upon an exparte proceeding, without notice of the pendency of a complaint, upon a suggestion of lunacy, or other defect of understanding, while the depriving him of the minutest portion of that property, or the slightest detention of his person, would be illegal upon a charge of crime, or a breach of civil contract, unless all the formalities of the trial were secured to him, by the forms of process and the regular execution of it."

In the Matter of Van Auken, 10 N.J. Eq. 190, where a motion was made to set aside the inquisition because there was no sufficient notice given to the alleged lunatic of the time and place of executing the writ, the Court said: "The alleged lunatic has a right to be present at the examination of the commission, and make his defense by himself or counsel, and to examine the witnesses. The effect of the finding against him is to deprive him of the control of his property and of his personal liberty. Such consequences cannot follow, except upon the verdict of the jury; and no such verdict should be permitted to pass against any man without affording him an opportunity of defending himself, except in extreme cases when such notice would be nugatory. In cases of confirmed and dangerous madness it may be dispensed with, but then only by the express order of Court."

In Holman v. Holman, 80 Me. 139, which was an appeal by the plaintiff from the decision of the lower Court refusing to grant his motien to dismiss the petition under which he had been placed under guardianship, the Court said: "It is the opinion of the Court that the defendant should have had notice of the inquisition by the selectmen. It is true that there is no express statute provision requiring such notice. But it is a well settled rule of common law that when an adjudication is to be made which would seriously affect the rights of a person, he would be notified and have an opportunity to be heard."

In Eddy v. The People, 15 Ill. 386, which was an appeal from an order denying a motion for a rehearing filed in a cause wherein Ira B. Eddy had been declared a lunatic. In disposing of the appeal the Court said: "We shall confine our discussion in this case to the question of notice. The statute provides that whenever a lunatic has any estate, the Judge of the Circuit Court of the county in which such lunatic lives, shall, on the application of any creditor, or relative of the lunatic, order a jury to be summoned to inquire whether such person be a lunatic, and if the jury shall so find, the Judge shall appoint a conservator. The statute is silent upon the subject of notice, and the question is, whether it is regular to proceed without notice to the supposed lunatic. We are clearly of opinion that upon the general principles of law, the supposed lunatic is entitled to reasonable notice. If he be in fact a lunatic, the notice would be undoubtedly useless; but that is the very question to be tried, and until a regular trial is had and inquest made, the presumption is in favor of sanity. The consequences resulting from the determination are of the most momentous character to the lunatic, both personally and pecuniarily, and so long as it is possible that a sane person might, upon an ex parte examination, be found to be insane, every principle of justice and right requires that he should have notice and be allowed to make manifest his sanity, and to refute and explain the evidence tending to prove the reverse. The idea is too monstrous to be tolerated for a moment, that the Legislature ever intended to establish a rule by which secret proceedings might be instituted against any member of the community, by any party who might be interested to shut him up in a mad house, by which he might be divested of his property and his liberty, without an opportunity of a struggle on his part. Should such a principle be sustained, the most sane man in the State is liable to be surprised at any moment by finding himself bereft of his property and on the way to a lunatic asylum."

There is no statute in Maryland providing for notice to the person alleged to be non compos, and, therefore, the authorities we have cited have a direct bearing upon the point under consideration, and are so in consonance with the dictates of the plainest justice that we are disposed to approve them, so far as they declare the general rule that the party proceeded against must be given timely notice of the proceedings, and an opportunity to be heard. In Alexander's Ch. Prac., 225, it is stated that the alleged lunatic "has a right to be present before the jury, and may take part in the examinations before them." This presupposes notice of the proceedings, for otherwise of what avail is this right to him, or how can it be exercised, if he has no knowledge of the proceedings, or is purposely kept in ignorance of them? It would be a mockery of justice to accord rights to a citizen, and then deny him the opportunity to assert them.

In Campbell's case, 2 Bland, 217, the general rule that the person proceeded against should be produced before the jury was recognized and some of the conditions under which his presence might be dispensed with were stated. In that case Charles Campbell, of Frederick County, was confined in a hospital in Philadelphia, and the question arose with regard to the county to which the writ should be directed. Upon this question the Chancellor said: "It is, in general proper, and may, in some cases be indispensably necessary, that the person alleged to be of unsound mind, should be brought before the jury who are convened by the Sheriff to ascertain his intellectual condition. And for that reason the writ is almost always directed to the Sheriff of the county in which the person said to be insane resides, or may at the time be placed. But if he is out of the State at the time, or it is impracticable, or, as in this instance, it would be attended by great inconvenience and injury to the afflicted person to have him brought before a jury, his actual presence may be dispensed with, and the writ may be directed to the Sheriff of the county in which he last actually resided, or in which the principal part of his estate lies."

We accordingly decide that in the execution of the writ the person alleged to be non compos must have reasonable notice of the proceedings and opportunity afforded to him to contest the truth of the allegations in the petition, and must be produced before the jury, unless the Court for sufficient reasons shown, similar to those stated in Campbell's case, supra, and VanAuken's case, supra, should dispense with notice and personal attendance.

The allegations of the petition to quash, which was a proper method of procedure (Alexander's Ch. Prac., 226-7) having been admitted by the demurrer, the inquisition, return, and the order of confirmation should for the reasons stated, have been set aside, and a new jury summoned and a new inquisition taken. As to the contention that the Court had no power to grant the relief prayed for, because the order of confirmation had become enrolled before the petition to quash was filed, it is sufficient to say that the case of Straus v. Rost,67 Md. 470, and the recent case of Primrose v. Wright, decided November 16th, 1905, 102 Md. 105, settle that question in favor of the Court's jurisdiction.

Order reversed and cause remanded with costs to the appellantsabove and below.