43 A.D. 231 | N.Y. App. Div. | 1899
The lunatic is an unmarried woman having two sisters, one of whom is the wife of Jeffrey P. Thomas, the committee of the lunatic’s person and estate, and the other'is the mother of Harry B. Chapman, the petitioner. The committee objects that the petitioner has no right to institute this proceeding. His petition is supported by the affidavit of his mother. It probably is true that the court, in its discretion, could refuse to take action upon the nephew’s petition, if it seemed to it proper to refuse. But “the jurisdiction of the Supreme Court extends to the custody of the person and the care of the property ” of the lunatic;. the court “ must preserve his property from waste or destruction, and out of the proceeds thereof must provide for the payment of his debts, and for the safe keeping and maintenance, and the education, when required, of the incompetent person and his family.” This jurisdiction “ must 'be exercised by means of a committee.” (Code Civ. Proc. §§ 2320, 2321, 2322.) The. committee “ is subject to the direction and control of the court by "which he was appointed with respect to the execution of his duties ; and he may be suspended, removed or allowed, to resign in the discretion of the court.” (§ 2339.) Thus the lunatic is the ward of the court, and the committee is its officer or arm to execute the duties devolving upon the court. (Matter of Otis,. 101 N. Y. 580.) The jurisdiction is of an equitable nature. In England it was early supposed to belong to the crown, and not to the court, except as delegated by the crown to the chancellor or some other officer; finally by statute the jurisdiction was committed to the chancellor. This peculiarity in regard to the origin of the chancel
"While it may be true that the petitioner had no special- right to institute this proceeding, it' was his privilege to give information to the court, and the court, in its discretion, might act upon it. As the court said in Agricultural Insurance Co. v. Barnard (96 N. Y. 525) the court “ had authority to proceed and make such an order in the premises as the statute authorized, however the facts may have, been brought to-its knowledge.” This objection is, therefore, not well taken.
The committee objects that no special guardian was appointed for. the lunatic in the first instance, and not until after a referee had been appointed by the court to take, examine and pass upon his accounts for the information of the court, and the referee’s report was ready for presentation to the court. If the views already expressed are correct, the proceeding thus far was to enable the court to ascertain from the committee’s own accounts whether its servant had been faithful to the trust the court had confided to him. If he had been, the court need not proceed further except to approve the accounts and to direct their filing. If there was probable cause for the court to believe that he had been unfaithful, then it was proper for the court to appoint a special guardian for the lunatic, to take up the proceeding, adopt the report of the referee, or ask for a further hearing in respect to the accounts, and if so advised move for an adjudication by the court upon the accounts and ask for the removal of the committee. In the present case the special guardian did adopt the report of the committee, moved for its confirmation
The provision of section 2342 for appointing a special guardian .for the purpose of filing a petition in behalf of the lunatic for the removal of the committee, and prosecuting the necessary proceedings for that purpose, is an additional authority conferred upon the county judge in cases where the committee was appointed by the Supreme Court, where the county judge upon an examination of the committee’s annual report, or upon his failure to make it, or comply with the order of the county judge to make it mo're full or satisfactory, has reason to believe that sufficient cause exists for his removal. It does not necessarily prescribe the practice when the Supreme Court, for reasons satisfactory to itself, directs an examination of the accounts and conduct of the committee. We thus reach the accounts as reported by the referee and confirmed by the court.
The committee was appointed in June, 1876, and this proceeding was instituted in November, 1897, more than twenty-one years afterwards. The committee never had filed any account. We have examined his account's now filed and the evidence: adduced upon the hearing, and, to say the least, the committee’s administration of his trust seemed to proceed upon the theory that her estate was his, subject to the charge upon him of her support. It appears that immediately upon his appointment there came to his hands $7,200. After a careful examination we are satisfied that the learned referee in stating the. account fell into an error in charging the committee both with the $7,200; and with the Nichols and Godfrey mortgages, so called, amounting to $2,900. The latter were investments out of the former and not assets in addition thereto. The referee should have treated these mortgages as part of the $7,200 of. principal,' or should- have treated the $7,200 as principal, and regarding it as invested, or so much of it as the evidence shows oiight to have been kept invested, he should have ascertained the income it ought to ' have produced. The latter method seems to us the only one which the unsatisfactory state of the accounts permits us to adopt.
Apart from this rule, we think that many of the items ought to be -rejected upon the merits. A considerable item is for carriage hire incurred in enabling plaintiff’s mother to visit the incompetent. These visits were commendable, but the mother had means of her own, and, under the 'circumstances, the propriety of charging the lunatic with the expense of these visits, in the absence of any order from the court, is doubtful. The same may be said of boxes of good things sent to the lunatic and charged by the box. There are other objectionable items. This disallowance leaves the committee credited with $6,903.08. Deducting this from $12,683.51 leaves him a debtor to the estate in $5,780.43, as of January 14, 1898. We cannot say that this is exactly right, hut it is an approximation which we believe is about right.
The Special Term was justified in removing the committee and denying him commissions.
The order appealed from is modified by charging the committee with $5,780.43 instead of $7,266.87, and as so modified affirmed, without costs of this appeal.
All concurred.
Order modified by charging the committee with $5,780.43 instead of $7,266.87, and as so modified affirmed, without costs of this appeal.