Opinion
July Term, 1902.
George H. Hart, for the appellant.
Albridge C. Smith, for the respondent.
So far as the first accounting is concerned, while the items of that account appear in the record, yet no attack is made thereon, all the parties in interest acquiesced therein, and the court having confirmed the same we must regard it as finally settled and not the subject of review upon this appeal. This conclusion leaves alone for our consideration the exceptions which were taken to the report of the referee in the allowances which have been made to the committee in her account. By the terms of the order appointing her such committee, the first provision, after a direction for payment of the incompetent's debts, is to pay from the profits and income of the business conducted by the committee such sum as shall be necessary for the maintenance of the lunatic. It is conceded that the lunatic has been placed in the asylum as a charity patient and that the committee has paid nothing for his maintenance in any form; it is further made to appear that he renders some service in caring for other inmates therein, but whether such service is an offset to his being supported free of charge is not made clearly to appear. The committee would be guilty of no impropriety or of neglect in the discharge of her duties to the incompetent by procuring him to be cared for in a State institution for the insane without charge if thereby he was properly cared for and maintained so far as consistent with the restraint necessarily imposed upon him. The incompetent, however, becomes entitled to have and receive such care and maintenance as is essential to his comfort, so far as his estate warrants. This is the first and primary duty imposed upon the committee after the payment of debts, and the neglect to minister to his care and comfort, so far as is compatible with the value of his estate, is a neglect of the committee to discharge a plain duty imposed by the order appointing her. ( Matter of Reed, 22 App. Div. 328; affd. on appeal, 160 N.Y. 702; Matter of Colah, 3 Daly, 529; May v. May, 109 Mass. 252.) If he receives such care and maintenance without any charge upon his estate the committee will have discharged her duty in this respect, but it devolves upon her to show that such is the fact, and it becomes the duty of the court to see and also enforce the performance of this duty if the committee has failed to properly discharge the same. In the record before us such fact is not made to appear, and it is not an unfair inference to draw that a charity patient does not receive the same care and comfort as one for whose care and maintenance payment is made. It may be that his attendance upon other patients, when his mental capacity permits of the discharge of such duties, is of benefit to the incompetent; and it may be that such duties would be performed by him if payment for his support and maintenance was made by the committee, but these facts should all be made to appear in order that the court may be enabled to see that the committee has discharged her duty in this respect. The present record is barren of proof showing such fact. It becomes the duty of this court, therefore, to direct that proof be taken upon that subject.
The expenditures from the estate of the lunatic for which vouchers were produced seem to be correct. It appears, however, that $2,183.24 has been expended for which no vouchers whatever were produced. So far as the items which go to make up this sum are small in amount, it would be entirely proper to make allowance therefor within the limitations permitted by law, the account containing such items being produced by the committee and the expenditures verified by her statements under oath. By the provision of section 2729 of the Code of Civil Procedure such items of expenditures may only be allowed without a voucher when the item does not exceed $20, and the whole amount of such items so allowed shall not exceed in the aggregate $500. This provision of the Code is applicable to accountings of committees of incompetent persons. ( Matter of Chapman, 43 App. Div. 231; revd., 162 N.Y. 456, but not upon this point, nor was the construction which the court below gave to the sections of the Code covering such accountings at all disturbed.) While it may entail some inconvenience upon the committee to produce vouchers for small items of expenditures, yet the law requires vouchers to be produced within the limitations provided for in the Code. It is clear, from an examination of the account, that the referee was not justified in passing the accounts of the committee in a sum over four times the amount authorized by the Code without the production of vouchers. This account is also subject in this respect to an objection upon the merits. It appears from the account in the book kept by the committee that there were several items of expenditure, one as high as fifty-six dollars and several items above twenty dollars. For these disbursements no warrant in law exists for allowing unless a voucher be produced or by showing its loss or destruction by competent proof. It is evident, therefore, that the referee was wrong in allowing and the court in confirming the accounts to this extent.
The item of one hundred and sixty-nine dollars and eighty-five cents, under date of July, 1899, was also improperly allowed, as the only proof with respect to this item was the statement of the committee that she paid it to herself, but for what purpose does not appear. The only voucher is a check. The payment July 1, 1898, to estate of Mary D. Moore of fifteen dollars was improperly allowed, as the committee testified that this was a loan to pay a bill of her mother's estate. The account also shows that small sums have been devoted to charity amounting in the aggregate from twelve to fifteen dollars or more. We find no justification for these items.
The order appointing the committee also provides for the maintenance and support of the committee and her children and the education of the latter. It is, therefore, evident that the committee's position, in view of the limited character of the estate, requires economy in the discharge of her duties. Her account should not be subject to captious objection, and considerable liberality should be observed in passing upon it. In view of the circumstances, we should not have regarded the last-named expenditures, to which we have called attention, as sufficient to interfere with the affirmance of the order confirming the report of the referee. A sensible and just adjustment of the small matters may be easily arrived at, but as to the condition of the lunatic and his needs, the allowance of items in excess of twenty dollars for which no voucher is produced, and the passing of accounts for less than that sum, in excess of five hundred dollars in the aggregate, are without warrant of law and require correction at our hands. The guardian who brings this appeal was justified in calling the matter to the attention of this court, and the service which he has rendered to his ward is commendable. It might be possible on this appeal, perhaps, to correct this account, but we have no power to do so. ( Matter of Chapman, 162 N.Y. 456.)
The order of confirmation should, therefore, be reversed and the proceeding remitted to the court below for further action, with costs to the special guardian payable out of the estate.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and LAUGHLIN, JJ., concurred.
Order reversed and proceeding remitted to the court below for further action, with costs to the special guardian payable out of the estate.