Supreme Council of the Royal Arcanum v. Nicholson

Burke, ]., delivered the opinion of the Court. This appeal presents an important question of practice relating to the execution of the writ de lunático 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 lunático 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 ist 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 Bal ⁴⁷⁸ timore City for the recovery of the amount payable under the benefit certificate. Thereupon the Supreme Council of the Royal Arcanum and Camilla D. Nicholson fi.led a petition in the lunacy case wherein they prayed: (<z) “That the said writ de lunático 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 lunático mquirendo 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 ⁴⁷⁹ 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 order nisi, requiring the committee to show cause on or before a certain day why the re’ief 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 petitition, 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 compos mentis. He is divested of his property, and maybe 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 ⁴⁸⁰ 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 compos mentis, 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 ⁴⁸¹ 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