#### In the Matter of the Petition of DEVILLO JACKSON, Respondent, v. IRA D. JACKSON, an Alleged Lunatic, Appellant.

*Proceedings for the appointment of a committee of a lunatic*— w *hat allegation as to his unsoundness of mind will confer jurisdiction upon the Oounty Oowrt*— *what constitutes an unsoundness of mind*— right *of the Oounty Oowrt to direct that the issue of fact be tried before a jury in that court.*

A petition to a < 'ounty Oourt for the appointment of a committee of the person and estate of a person alleged to he of unsound mind, stated that he was “of unsound mind and understanding, and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to *manage*his affairs.”

*307
      *Meld,*that the allegation as to unsoundness of mind was sufficient to confer jurisdiction upon the County Court.

XJpon the trial [before the jury the commissioner charged the jury “ that to constitute a case of unsoundness of mind which will justify the court in assuming control of the person and property of a person by a committee, his mind must he so far impaired that if it had never been elevated above that state of capacity ■ from his birth it would have constituted a case of idiocy. ”

*Meld,*that this charffe was erroneous.

Upon the return of a commissioner, with the findings of a jury, to the County Court, that court may, in a proper case, direct the issue of fact to be tried before a jury in the County Court.

Appeal from an order of tbe Madison County Court, denying a motion to set aside an order appointing a commissioner in proceedings *de lunático*inquirendo, and also from an order setting aside tbe finding of tbe jury and ordering a trial of an issue of fact before a jury in Madison County Court.

In May, 1884, the petitioner caused to be served upon tbe alleged lunatic notice of an application for a commission. Tbe lunatic .appeared and tbe application was denied, but with'leave to renew tbe same upon additional papers on the eleventh day of June. Tbe petitioner understood it to be postponed to tbe twelfth of ■June, and did not appear tbe eleventh, and, consequently, an absolute order was entered denying said application. On tbe sixteenth of said June, tbe petitioner made an *ex parte*application to tbe county judge, for a commission upon additional facts and affidavits. Tbe .same was granted. Tbe appellant moved to set aside this ■commission. Tbe court denied this motion, and from that order ■one of tbe appeals herein is brought. Tbe commission was executed, and thirteen of tbe nineteen jurymen found in favor of tbe appellant. Tbe commissioner, on the 16th day of August, 1884, filed tbe commission, tbe return thereto, tbe testimony taken on tbe trial and his charge to tbe jury. Tbe inquisition was set aside, on tbe ground of an error in the commissioner’s charge to the jury. There are two appeals herein, one from tbe order refusing to set aside the commission, and another from the order setting aside the inquisition.

*H. L. Oates*and *D. L. Atkins,*for the appellant.

*8. D. White,*for the respondent.

*308Hardin, P. J.:

Section 340 of the Code of Civil Procedure confers jurisdiction upon county courts, concurrently with the Supreme Court, of proceedings as to the custody of the person and the care of the property of a resident of the county who is incompetent to manage his affairs by reason of lunacy, idiocy or habitual drunkenness * * *■ and for the appointment of a committee, etc.

Section 2320 confers jurisdiction upon this court over the custody of the person and the care of the property of a person incompetent, to manage himself or his affairs in consequence of lunacy, idiocy or habitual drunkenness. Section 3343 prescribes the rule to be observed in construing the sections already referred to, and declares-that “ the words lunacy and lunatic embrace every description of unsoundness of mind except idiocy.”

Devillo Jackson, in May, 1884, presented to the County Court of Madison a petition in which he alleged that Ira Jackson, who resided in Brookfield, in that county, was *“*of unsound mind and understanding, and so far deprived of his reason and understanding as to be altogether unfit and unable to govern himself or to manage his-affairs * * * and prayed for the appointment of a committee of the person and property of Ira Jackson.” The averments of the unsoundness of mind, with the other facts stated, were sufficient to confer jurisdiction upon the County Court. The averment of the fact of the existence of unsoundness of mind of Ira Jackson was of a fact and sufficient in form and substance to' admit of proof thereof under the statutes just referred to. *(Riggs*v. *The American Tract Society,*84 N. Y., 330; S. C., on second appeal, 95 id., 503.) "When the finding of the jury was carried before the County Court, with the proceedings theretofore had in that court and before the commissioners, it appeared that the commissioners, among other instructions given to the jury in the charge, had said, viz.: “ That to constitute a case of unsoundness of mind, which will justify the-fourt in assuming control of the person and property of a person by a committee, his mind must be so far impaired that if it had-never been elevated above that state of capacity from his birth it would have constituted a case of idiocy. An exception was taken to that part of the charge, which we think was properly sustained by the County Court.

*309In the case just cited from 95 New York (at p. 511), Judge Danforth says: “ One may be of unsound mind, and yet be neither an idiot nor an imbecile,” and he adds that a person may be of unsound mind who is far short of a state of idiocy. (See, also, *Barker's case,*2 Johns. Ch., 232; *Matter of Mason,*1 Barb., 436; *In Matter of Burr,*17 id., 13; *Delafield*v. Parish, 25 N. Y., 103.) A person may be wholly incompetent to manage himself and his affairs in consequence of lunacy ” and still be removed from a state of idiocy, •or a state which if it could be supposed to have existed at his birth would be greatly removed from idiocy. *(In Matter of*Burr, 17 (Barb., 13; Code, § 2320.)

According to section 2336, upon the return of the commission with the inquisition, it was the duty of the court to make such order by way of directing a new trial or hearing or upon the petition as justice requires. The application was addressed very much to the •discretion of the court and-was to be considered on its merits. *(Matter of*Rogers, 9 Abb. N. C., 141.) We are persuaded that the •discretion of the County Court took the right directions, and we .are satisfied with its order directing a trial of the question of fact before a jury in that court. ¥e are of the opinion that both orders appealed from should be affirmed, with costs of the appeal in one •case to abide the final award of costs.

Follett and YaNN, JJ., concurred.

Orders affirmed, with one bill of costs in this court to abide the final award of costs in the County Court of Madison county.