257 A.D. 109 | N.Y. App. Div. | 1939
On May 13,1931, Edward B. Gould was committed to Brigham Hall Hospital at Canandaigua, N. Y., an institution for the insane, by the order of the county judge of Ontario county. On May 16, 1931, Norman J. Gould, a brother of Edward B. Gould, petitioned the County Court of Seneca county to have said Edward B. Gould declared an incompetent person. The matter was brought to trial before a jury in June, 1931. The jury found him competent. The court set the verdict aside and ordered the matter retried before a jury on January 4, 1932.
On the 17th day of July, 1931, Norman J. Gould petitioned the County Court of Seneca county for an order appointing a special guardian for Edward B. Gould pending the disposition of the proceeding for the appointment of a committee of his estate, “ with power to protect his rights and interests in this proceeding and to take and receive any and all current funds and income which are now or may hereafter and until the appointment of a committee herein be available or on deposit to his credit or to the credit of his said trustee in any banking institution and to apply the same in such manner as may be ordered by the court; * * * that such special guardian when appointed be authorized and directed to apply such funds in the first instance and in priority to any other payment therefrom to the payment and discharge of the said Edward B. Gould’s reasonable obligations incurred and hereafter to be incurred for medical and hospital care in Brigham Hall Hospital.” Attached to and made a part of the petition was a schedule of debts owing by said Edward B. Gould. Item 5 of this schedule was as follows: Miscellaneous obligations: Approximate amount advanced by Norman J. Gould and Seabury
On January 4, 1932, the incompetency proceeding was retried and the jury returned a verdict declaring Edward B. Gould to be an incompetent person. On January 12, 1932, on notice to all interested parties, the court made an order confirming the findings of the jury, declaring Edward B. Gould to be an incompetent person, and appointing James M. Ryan the committee
On the 6th of June, 1932, on notice to all interested parties, the court made an order appointing Charles F. Hammond as successor committee to James M. Ryan. The preamble of said .order contains a reference to the order of December 29, 1931, made following the proceeding wherein James M. Ryan had been appointed the special guardian of Edward B. Gould and before Edward B. Gould had been declared to be an incompetent person. The order of June 6, 1932, contained the following provision: “ It is Further Ordered that the said Order hereinbefore referred to in regard to the application of the funds of said Estate and dated December 29th, 1931, and the term thereof shall apply to and bind the said Committee from the time of his qualification and entering upon the discharge of his duties as such Committee, said order being in all respects confirmed.” Mr. Hammond promptly qualified as com
On the 14th of October, 1937, Charles F. Hammond, as committee of Edward B. Gould, presented a petition to the Seneca County Court, pursuant to section 250 of article 9 of the Debtor and Creditor Law, asking for an order directing all persons having claims against the estate of bis incompetent to present the same to him as committee on November 4, 1937. The committee alleged that he was making the application for the reason that a certain creditor was pressing him for payment of its claim because of the fact that the Statute of Limitations was about to run and that the committee felt that there might be many other claimants in the same situation. Notice of the application was given to Norman J. Gould. At the suggestion of the committee and his counsel, Norman J. Gould, on or about December 17,1937, presented to the committee a verified bill of particulars of the claim listed in “ Schedule A ” which was attached to his petition for the appointment of a special guardian and verified on July 17, 1931. Seabury S. Gould died some years ago. His representatives did not join in the bill of particulars. The committee reserved his right to challenge the competency of the bill of particulars. Norman J. Gould and the representative of the estate of Seabury J. Gould filed no claims as permitted by the order of October 14, 1937, Norman J. Gould taking the position that he had filed and. presented his claim at the time that he made the petition for the appointment of a special guardian of said incompetent on July 28,1931, and that it was not necessary to refile the same; that the court in the orders of July 28, 1931, January 12, 1932, and June 6, 1932, had in effect approved of the claim and had authorized the committee in bis discretion to pay the same and that the committee had never formally acted upon said claims. The committee of the estate took the position that the claim had never been presented to either committee and that it was barred by the Statute of Limitations, and that the bill of particulars did not and could not revive it. Without taking any testimony relative to the presentation of the claim, the court, on the 4th of October, 1938, made an order in part as follows: “ Ordered, Adjudged and Decreed that the said alleged claim of Norman J. Gould was not duly or properly filed at any time with the Committee or Special Guardian of the person and property of the incompetent herein,” and “ that said alleged claim did not accrue within the six years next preceding the commencement of the proceedings herein now pending before this Court, and that therefore, said claim, if any exists, is barred by the Statute of Limitations.” From this order Norman J. Gould appeals.
The Chancery Court in England had the whole jurisdiction in regard to idiots and lunatics. In cases where it was necessary that court would appoint a temporary guardian or receiver of the alleged incompetent’s property until the fact of lunacy had been determined. (Matter of Wendell, 1 Johns. Ch. 600; Matter of Payn, 8 How. Pr. 220, 221; 107 A. L. R. 1394-1400.) Our Supreme Court has all the power that was exercised by the Court of Chancery in England on July 4, 1776. (Civ. Prac. Act, § 64.) The County Courts have concurrent power with the Supreme Court over such persons and their estates. (Civ. Prac. Act, § 67, subd. 4; §§ 69, 1356.) The court exercising jurisdiction must preserve the property of such persons. (Civ. Prac. Act, § 1357.) While the property of the alleged incompetent may be preserved by the court pending the disposition of a lunacy proceeding it cannot be disposed of until a committee has been appointed. (Finch v. Goldstein, 245 N. Y. 300, 303.) This being so, we may construe the order appointing Mr. Ryan as special guardian as though it was an order appointing him a temporary guardian or receiver. (See Matter of Wendell, supra, p. 601.) Hence this order was not wholly void.
In the preamble of the order appealed from there is a recital that until 1938 “ there was neither surplus income nor liquidated
The present proceeding is one to ascertain the just claims of the creditors to which the court and the committee promised to give attention as soon as funds were available and they were not available until after this proceeding had been instituted. So far as the proof goes the creditors acquiesced and presented no claims until the institution of this proceeding. The effect of this action on the part of the committee, which was sanctioned by the county judge, was to postpone the running of the Statute of Limitations. True, the agreement to postpone the running of the statute was not in writing but it was fully performed by the Goulds and the other creditors. In Watertown National Bank v. Bagley (134 App. Div. 831) this court said, in reference to postponing the operation of the Statute of Limitations: “ The parties may extend or shorten the period if the contract is founded upon a good consideration and is reasonable.” The consideration in this instance was adequate. Had the creditors sooner pressed their claims irreparable injury might have been done by sacrificing the assets of the estate to pay claims. The court had the power, in order to protect the estate, to withhold permission from creditors who might be minded to enforce their claims (Smith v. Keteltas, 27 App. Div. 279, 280; Grant v. Humbert, 114 id. 462, 465), and in effect the court did withhold its permission from the Goulds and other creditors.
Under the circumstances it does not matter whether we treat the Gould claim as presented when the special guardian was appointed committee or as presented when Mr. Gould served his
Under the circumstances of this record we think the learned court below was in error in holding that the Gould claim was barred by the Statute of Limitations. The claim of Norman J. Gould is unliquidated. Hence it should be remitted to the County Court of Seneca county for adjudication.
The order appealed from should be reversed and the matter should be remitted to the County Court of Seneca county with directions to adjudicate the claim of Norman J. Gould.
All concur, except Sears, P. J., and Cunningham, J., who dissent and vote for affirmance in the following memorandum: We find nothing in this record to toll the running of the Statute of Limitations. The latest date shown in the record of an advance to the incompetent was July 31, 1931. Nothing occurred thereafter looking toward the enforcement of the claim until the presentation of the bill of particulars dated December 17, 1937. The petition of Norman J. Gould, dated July 17,1931, with the schedule attached, was not the presentation of a claim and even if it were so considered, it is not recognized • or adjudicated to be a claim under the order of July 28, 1931, which appointed James M. Byan special guardian and purported to give him authority to pay from income of a trust fund debts of Edward B. Gould as in the judgment of the special guardian should be just and proper claims against his estate. On a hearing held on July 28, 1931, no proof was offered as to any claim of Norman J. Gould. We are strengthened in our opinion by the accounting finally rendered by James M. Byan as committee and guardian and the waiver in connection therewith of Norman J. Gould, dated May 11, 1932, inasmuch as in the accounting of James M. Byan no mention was made of the claim of Norman J. Gould which he now seeks to enforce. Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.
Order reversed on the law, with costs payable out of the estate of the incompetent, and matter remitted to the County Court of Seneca county to adjudicate the claim of the appellant.