119 Misc. 251 | N.Y. Sup. Ct. | 1922
Application is made by the committee for an order judicially settling his account and for a discharge. The committee was appointed pursuant to section 2323a of the Code of Civil Procedure on the application of the attorney-general, the incompetent person being an inmate of a state hospital. The committee was appointed in September, 1914. A bond was duly filed and a commission issued. The court on the return day of the application appointed a special guardian who, after filing his report, has since died. An examination of the petition upon which the committee was appointed discloses that the property of the' incompetent person consisted of “ a balance of $3,000 approximately, in á Trust Company in Boston, Massachusetts; and real estate value and encumbrance unknown.” The first inventory filed by the committee shows that he received the sum of $2,437.96 inclusive of interest, and that he disbursed the sum of $710.81, and included in these disbursements is the sum of $84.82 for commissions to the
Section 2753 of the Code of Civil Procedure, now section 285 of the Surrogate’s Court Act, provides: “ On the settlement of the account * * * the surrogate must allow to him * * * and in addition thereto the surrogate must allow to such executor, administrator, guardian or testamentary trustee for his services in such official capacity, * * * For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five per centum. For receiving and paying out any additional sums not amounting to more than ten thousand dollars, at the rate of two and one-half per centum. For all sums above eleven thousand dollars, at the rate of one per centum.” This part of the section refers to the principal of the estate. Then follow the provisions as to the commissions on income, for it provides: “ If an executor acting as trustee, or if a trustee or guardian, is required to receive income and pay over the same, and such executor, trustee or guardian pays over said income and renders an annual account to the beneficiary of all his receipts and disbursements on account
The question, therefore, is, when is a committee authorized to pay himself the commissions he is entitled to? Concededly, the committee may not pay himself commissions on the principal of the estate until an accounting has been had, and that upon notice to all persons interested in the estate. Matter of Stratton, 76 Misc. Rep. 584. And, until he has paid over the entire fund, he is only entitled to half commissions for receipt, and the remaining half for the disbursement of the funds. Matter of Smith, 86 Misc. Rep. 136.
Another question presented is, does the filing of an “ inventory account by committee ” in the month of January of each year, as required by section 1378 of the Civil Practice Act, entitle the committee to commissions upon income as in the case of an executor, trustee or guardian? I think not. In the case of a trustee, section 285 of the Surrogate’s Court Act infers two things in order that commissions be earned, namely: (a) pays over said income, and (b) renders an annual account to the beneficiary. The committee does not pay over the income nor does he render an account to the incompetent. The duties of a committee are so limited that he has very little discretion but to carry out the instructions given to him by the court. He is a mere bailiff or custodian. Kent v. West, 33 App. Div. 112; Matter of Otis, 101 N. Y. 580. True, it would be an idle ceremony to have a committee account to an incompetent person so as to bring him within the provisions of section 285 of the Surrogate’s Court Act. Yet the statute is silent in that regard and nowhere does it provide that in filing the inventory and account as required by section 1378 of the Civil Practice Act, such filing, though for the information of the court, is tantamount to a rendition of an account to the incompetent for whom the court is acting. In the case entitled Matter of Arnold, 76 App. Div. 126, the court in discussing this point (at p. 128), said: “ The annual accounts were required to be filed for the information of the court, and these proceedings for examining the accounts and requiring the filing of more full and complete accounts are ex parte, out of court, and not designed to be binding upon the incompetent person or those interested in his estate.” The filing, therefore, of an inventory and account is not such an accounting as would be binding upon the incompetent or any one interested in his estate. If such be true, how can it be that a committee may deduct commissions
Upon the cases as I view them and in the absence of statutory authority I hold that the committee may not deduct commissions upon principal or income in advance of a judicial accounting, and in the instant case the committee is surcharged the amount of such deductions with interest at six per cent at annual rests. I might further add here that trustees are permitted to deduct commissions on income at annual rests, and their right so to do cannot be questioned under the authorities as I view them. Beard v. Beard, 140 N. Y. 260; Conger v. Conger, 105 App. Div. 589; Hancox v. Meeker, 95 N. Y. 528; Matter of Mason, 98 id. 527; Matter of Martin, 196 id. 415, modifying 133 App. Div. 893. The right to deduct commissions at annual rests to guardians has been refused. Matter of Decker, 37 Misc. Rep. 527. The committee with his limited powers pays out only upon instructions of the court, and in most instances for the support and maintenance of the incompetent.
Payments by a committee for counsel fees without permission of the court are at his own personal risk of having the same disallowed upon an accounting. Matter of Maxwell, 218 N. Y. 88. There is a charge in the account for the employment of counsel which has
There is no explanation of the payment of seventy-five dollars for expenses on a trip by the committee to Boston. It may be that such trip was necessary, but there is nothing in the papers explaining this expenditure nor is there any voucher showing the payment thereof. On this item further facts may be presented.
It appears also that the committee, who is a lawyer, has charged the sum of twenty-five dollars for the preparation and filing of annual inventories. Blank forms of inventories and account are supplied to the various committees by the attorney-general for their convenience, without charge. An examination of each inventory shows that the amount charged is not warranted by. the work in their preparation, and a charge of ten dollars for each inventory would be substantial. The amount paid by the committee to himself in excess of this amount is surcharged him.
The committee in his affidavit states, “ deponent intends to go to Boston within the next few days for the purpose of winding up the estate of the incompetent there.” If the incompetent has any property in Boston, said property there should have been stated in the various inventories filed as well as in the present account. The account is silent as to any property of the incompetent in Boston. If there be any property, the proper practice of the committee is to obtain the same and have it turned over to himself as committee in New York where the incompetent is a resident and then seek his discharge here. The appointment of himself as conservator in Massachusetts was in effect ancillary, and similar no doubt to the appointment in this state of a foreign committee under section 1363 of the Civil Practice Act. If there be no claims against the incompetent person in Massachusetts, there is no doubt that the courts of that state will turn over such property to the New York committee, upon proof that a proper bond has been given. Matter of Rhoades, 184 App. Div. 658.
The final account, so called, is nothing but a consolidation of the various inventories which have been filed, and required no great amount of time to prepare. I am at a loss to understand why the employment of counsel was necessary in the present application when the committee is an attorney and apparently competent to do the work as he has done in the filing of the inventories. This
As indicated herein the committee may submit further proof as to the matters suggested, and the matter adjourned over to another date, to be placed on the calendar for disposition of motions, and may be referred to me on said day. As the special guardian has since died the order to be entered herein should provide for the appointment of another special guardian to continue in the proceeding for the protection of the incompetent.
Decreed accordingly.