Opinion
February 5, 1909.
Alfred B. Jaworower, for the appellant.
Gilbert H. Montague, for the respondent.
It appears that the appellant was appointed a committee of a person who had been declared incompetent in September, 1881, by a judge of the Court of Common Pleas for the city and county of New York, duly qualified as such committee, and has been acting as such since that time. One of the sureties upon the committee's bond desiring to be released therefrom, the committee applied to the Court of Common Pleas for a judicial accounting, and a referee was appointed to take and state his accounts. The next of kin and heir at law of the incompetent was cited to appear before the referee, who reported to the court that the next of kin had appeared before the referee and who passed the committee's accounts. Such report was submitted to the court and an order was entered on the 3d day of April, 1883, which confirmed the report of the referee and judicially settled the accounts of the committee, which had been filed with the court on June 1, 1882, on January 26, 1883, and on March 30, 1883. There were no facts presented upon this application to show that this accounting was not a full and true statement of the accounts, or that the interests of the incompetent were not fully protected by the referee appointed by the court and by the judge who confirmed his report. The only heir at law and next of kin of the incompetent had notice of the application to confirm the report, and the accounting and order settling the committee's account was certainly an adjudication which bound all those interested in the estate who had notice of the proceedings, if the court had jurisdiction to take and state the committee's accounts.
Sections 2341 and 2342 of the Code of Civil Procedure were in force at the time of the accounting. Section 2341 required the committee to annually file in the office of the clerk of the court by which he was appointed his accounts for the preceding year, and section 2342 provided for the enforcement by the presiding or chief judge of the court of this provision. (See Laws of 1880, chap. 178, §§ 2341, 2342, as since respectively amd. by Laws of 1894, chap. 51, and Laws of 1906, chap. 181; Laws of 1895, chaps. 746, 946, §§ 1, 3, 4, and Laws of 1899, chap. 350.) It seems to me there can be no doubt but that the court appointing the committee had at all times summary jurisdiction over him to compel him to submit his account to judicial examination. Undoubtedly, upon an examination of the committee's accounts only those who had had notice of the proceedings and an opportunity to file objections or question the accuracy of the account or the legality of the proceedings of the committee would be bound. But when the next of kin and heir at law of the incompetent had notice of the applications and was present at the taking of the account and made no objection to the proceedings, and no fact is alleged to show that the account was not a full and true statement of the proceedings of the committee and of the money and property of the estate of which he was trustee, there can be no reason why the estate should be put to the expense of a new accounting. The incompetent was a ward of the court. It was not required to appoint a guardian ad litem but could itself protect the interest of the incompetent and there is nothing to show that her interests were not fully protected. The order of the Court of Common Pleas passed the committee's accounts and directed the application of the moneys in the hands of the committee, and it does not seem to be claimed that there was a want of jurisdiction of the court to direct the payments required by the order.
What was said in Matter of Arnold ( 76 App. Div. 126) has no relation to a proceeding such as that involved in the present appeal. Undoubtedly an ex parte proceeding under the provisions of section 2342 of the Code of Civil Procedure with no notice to those interested in the estate would not bind them. Such an accounting was also rendered necessary because one of the sureties upon the bond of the committee desired to be relieved from further responsibility and the court was also required to determine what amount should be allowed for the support of the incompetent and for the payment of various sums of money which it was claimed should be paid out of her estate. The cases in which the power of the surrogate to order accountings of guardians and testamentary trustees was discussed have no application, as the Surrogate's Court is a court of limited jurisdiction and has no power except such as is specially conferred by statute. The Court of Common Pleas had the jurisdiction of a Court of Chancery and as such had jurisdiction over the estates of incompetents, and I think had power to require a committee that it had appointed of the estate of an incompetent at any time to render an account and to judicially determine whether or not the committee had properly performed his duties. The right to compel a committee to submit his accounts for judicial determination was essential to the proper exercise of that power, and in the absence of any allegations of fraud or mistake or improper action of the committee during the period embraced in the account, and where notice had been given to all interested in the estate who made no objection to proceedings, I think the order of the court settling the accounts was conclusive.
It follows, therefore, that the order appealed from must be modified so as to require the committee to account for the period subsequent to March 30, 1883, and as thus modified the order should be affirmed, with ten dollars costs and disbursements of this appeal to the committee payable out of the estate.
McLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements of appeal to the committee payable out of the estate. Settle order on notice.