The petitioner in this action having been adjudged incompetent, presented a petition alleging that he had recovered and asking that the committee of his person and property be discharged and that he be restored to the control of his property. Upon the presentation of that petition it was referred to a referee to take proof as to the condition of the petitioner. Under this reference the petitioner proceeded and presented certain evidence, when the attorney for the petitioner’s wife and children, who were opposing this application, asked the referee to direct the petitioner' to submit to an examination by certain physicians named so that they could testify as to his mental condition. The referee held that he had no right to make such a direction and certified' the matter to the court for its determination. Upon this certificate' of the referee and affidavits an application was made for an order requiring the petitioner to submit to a physical and mental examination by the physicians named to enable them severally to reach and express an opinion under oath before the referee for the information of the conscience of the court as to whether or not the petitioner is of sound mind and competent to care for himself and for his property now in the custody of the said committee. That motion was denied, and from the order denying the same this appeal is taken.
It appeared that in the proceeding before the referee the petitioner was not called and examined, he relying upon the testimony of physicians who had examined him and others as to his present mental condition. After the witnesses called by the petitioner had been examined, counsel for those opposing the granting of the petition asked that several physicians — naming them — should be permitted to make a physical and mental examination of the petitioner. Counsel for the petitioner stated that he had advised the petitioner not to submit to the examination of the physicians nominated by counsel representing the opposing parties ; he made specific objections to several of the physicians nominated, offered to allow an examination by any physician nominated by the referee, and stated, “we have no objection to having Mr. Newcomb examined by any *340competent alienists appointed by the court, who have not committed themselves already as to his mental condition, but who can approach the subject with an open mind and impartially advise the court on the subject.” But that proposition was declined, and the motion that was then made was to compel the petitioner to submit to an examination by these special.physicians to whom objection had been taken.
Under all the circumstances, we think this application was properly denied. Counsel for those ' opposing this application are,undoubtedly, embarrassed by the fact that the petitioner who now claims to be fully restored had not- been called as a witness before the referee, as is usual in proceedings of this character. The petitioner is, presumably, an incompetent person, having been so adjudged, and the burden is upon him of satisfying the court that his health has been so restored that he is now able to care for himself and for. his property; It is difficult to see why, if he is restored to health, he should not have presented himself before the referee for examination, so that the referee could judge from an inspection of the petitioner, and his answers to the questions asked him whether he is competent to care for himself and his property. Whether the court would be justified in granting this application, where the petitioner has refused to present himself for examination before the referee, is a question that we are not now called upon to determine. What is sought upon this application is to compel the petitioner to submit to a private examination by physicians named by those opposing his discharge, to the particular physicians named the petitioner having specific objections. While some of these objections do not appear to be of much weight, especially the objection that certain of the physicians had before expressed an opinion that the petitioner’s mind was permanently affected, still there does not seem to be any reason why these specific physicians should be the ones to examine the petitioner. What the court really desires is evidence of the mental condition of the 'petitioner at the present time. We think, that, before the prayer of this petition should be granted, either the petitioner should be called before the referee, and there examined in the presence of such physicians as those opposing the-application desire, or else an examination by some independent physicians who are satisfactory to counsel for the opposing relatives, *341should be allowed; but we, do not think that, under the .circumstances here detailed, the court below incorrectly exercised its discretion in denying this application to require the petitioner to be examined by these specified physicians.
The order appealed from should be affirmed, but, under the circumstances, without costs.
Van Brunt, P. J., and O’Brien, J., concurred; Patterson and McLaughlin, JJ., dissented.