In re the Final Accounting of Johnston

| N.Y. App. Div. | Apr 13, 1973

— Judgment unanimously reversed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: In this proceeding for approval of the final accounting by the committee of an incompetent the record is inadequate to permit a final disposition of the litigation. The committee has been awarded an allowance, over and above commissions, which appellant challenges as excessive. The committee’s unverified petition and supplemental petition alone are insufficient to support the award or to permit us to make a determination of a reasonable amount as compensation for services which may have been performed by the committee beyond those usually performed by a fiduciary. The burden of proof is upon the committee to establish by affidavit or testimony the nature and amount of the services performed and the reasonable value thereof (Matter of Evans, 6 A D 2d 409). Such proof should be submitted to Trial Term. Object-ant should similarly have the opportunity by competent proof to establish any improper use of the incompetent’s funds for which he would surcharge the committee. Inasmuch as the committee’s power ceased on the death of the incompetent in 1958 (Civ. Prac. Act, § 1383), expenditures of the incompetent’s funds after that date by the committee would have been improper and he would have been entitled to no commissions thereafter, unless he could establish an acquiescence in his conduct by those succeeding to the incompetent’s interest such that compensation should he paid (Myers v. Bolton, 157 N, Y. 393). In computing commissions earned for the period 1955 through 1958, the decreasing rates of commissions payable to administrators and executors in 1958 should have been applied as though the receipts and disbursements in 1955-1958 were cumulative, rather than applying the initial, highest rate to each year’s figures. (Matter of Hawkins, 14 Mise 2d 703; Civ. Prac. Act, § 1376). (Appeal from part of judgment of Erie Trial Term settling account and awarding commissions.) Present — Goldman, P. J., Del Yecehio, Marsh, Cardamone and Simons, JJ.