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184 HEWITT'S CASE,
HEWITT'S CASE.
Where it is charged in the bill, that the defendant is in custody as a lunatic, it is of
coarse for his committee to answer for him; but if the committee be interested in
the matter in controversy, then the lunatic must have a guardian appointed for
him,—This court has jurisdiction to make partition of real and personal estate;
but if the personal estate be in the hands of an executor or administrator, it must,
in general, be distributed under the direction of the Orphans Court.
THIS bill was filed on the 22d of January, 1831, by Eli Hewitt
against Rezin D. Hewitt and Jacob Hewitt; it states, that Eli
Hewitt died in June, 1827, intestate, leaving these parties his chil-
dren and heirs at law, that at the time of his death he was seised
in fee simple of certain real estate, and possessed of some chattels
real, which being in themselves incapable of division, it was
prayed, that they might be sold and the proceeds divided among
these parties. But it was further stated, that the defendant Jacob
Hewitt, had, by a commission from this court, been found a luna-
tic; and that the other defendant Rezin D. Hewitt, had been
appointed his trustee, in whose custody he then was as a lunatic;
upon which it was prayed, that by a special order, the defendant
Rezin D. Hewitt, might be authorized to answer for him. And to
obtain the opinion of the Chancellor upon this latter prayer, the
bill was at once submitted to him.
26th January, 1831.—BLAND, Chancellor.—Where a defendant
has been found a lunatic by a regular commission, and is then in
custody as such; and it is so stated, as in this instance, it is a
matter of course for him to answer by his committee, without any
special order for that purpose; but here it appears, that the luna-
tic's committee is interested in the subject in controversy; and,
therefore, it becomes necessary to appoint a disinterested, capable
person as his guardian, to answer for him. (a) Subpaenas may
issue in this case, as of course, against both the defendants; but
no further proceedings can be had, as against the lunatic, until he
has a guardian appointed for him who will consent to act as such,
and take charge of his interests. The Chancellor will expect to
have some suitable person described and recommended to be guar-
dian to the defendant Jacob Hewitt.
Whereupon it is Ordered, that this case stand over as to the
defendant Jacob Hewitt, until further order.
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(a) 2 Mad. Chan. 333; Lloyd v. ——, 2 Dick. 460; Lyon v. Mercer, 1 Cond.
Chan. Rep. 182.
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