The first question to be determin ed is whether Patterson could make a valid will, during the existence of the commission, without permission of the court.
In White v. Palmer, 4 Mass. R. 147, it was intimated by Parsons, chief justice, that a letter of guardianship of a person adjudged to be non compos so long as it remained unrevoked was conclusive evidence of his insanity; but upon that point, the court declined to give any opinion, and the cause was decided on the ground that the letter of guardianship was prima facie evidence that the ward was not of sound mind. In the late case of Stone v. Damon, 12 Mass. R. 488, the same court held, that if a lunatic under guardianship be restored to his reason, he may make a will although the letters of guardianship be unrepealed. In such case, the burthen of proving a restoration to reason, was cast on .the person claiming under the will. The rule seems therefore to be settled in Massachusetts, that the letter of guardianship is only prima facie evidence of insanity, as to acts done after the date of the decree appointing the guardian.
But I think a different rule has been established in this state. In L'Amoureux v. Crosby, 2 Paige, 422, the chancellor held that as to acts done by the lunatic or drunkard, before the issuing of the commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, and not conclusive evidence of incapacity; but that all gifts of the goods and chattels of the idiot, lunatic or drunkard, and all bonds and other contracts, made by him after the actual finding of the inquisition declaring his incompetency, and until he is permitted *36to assume the control of his property hy the permission of the court are utterly void. (See, also, Beverly’s case, 4 Coke’s R. 126 ; b. 127, a.)
In the matter of Burr, a lunatic, 2 Barb. Ch. Rep. 208, this doctrine was applied, and the court made an order permitting Burr to make a will, and providing for his protection against the exercise of any undue influence.
I do not think, therefore, that Patterson could, in this case, have made a valid last will and testament, while the commission remained unrevoked, without the order of the court permitting him to do so. The existence of the commission presented a technical objection which it was necessary to remove.
It is objected in this case, that the order of Mr. Justice Watsom, made on the 26th of April, 1848, by which the commission was so far modified as to permit Patterson to make a will, was irregular and void? because it was made ex parte. On whom should notice have been served ? The committee had no interest in the matter: and the children who now apply to the court were not then the heirs of Patterson. Nemo est hares inventis. I think they had not a right to notice, but that it was entirely a matter of discretion in the justice, whether to require notice to be given; and if given, to say to whom it should be directed; and that the order made would be equally obligatory, whether made with or without notice. In many cases it may be proper to consult the family and friends of the drunkard, as well as the committee. It happens that the justice satisfied himself of the competency of Patterson, by personal examination, and by conversation with him, and satisfactory evidence was produced of his entire abstinence from the use of intoxicating liquors, since the execution of the commission.
The real and personal property of a person found incapable managing his affairs, in consequence of habitual drunkenness, is in the care and custody of the Supreme Court, and not of the committee, who is a mere bailiff acting under the authority and direction of the court, and an application for an order to allow him to make a will, is addressed to the discretion of the court, and we think such an order may, if the court think proper, be made without notice to the committee or the next of kin.
The order appealed from must therefore be affirmed.