Opinion
March, 1911.
P.H. Fitzgerald, for committee.
F.J. Sisson, examiner of committee's accounts.
This is a proceeding under section 2342 of the Code of Civil Procedure. The committee has filed an account and supplemental account of his transactions for the year 1910, and certain objections thereto have been made by the official examiner, and a hearing had on the voluntary appearance of the accounting party at which he was sworn and examined with reference thereto.
The exact scope of section 2342 in cases like this is not entirely clear, that section providing that "the county judge * * * must examine, or cause to be examined under his direction, all accounts and inventories filed by committees of the person and property, since the first day of February of the preceding year." Unless the county judge exercises some control and authority over objectionable items appearing in such accounts, the provision above quoted would seem an idle one, and I, therefore, assume that it is the intention of the law that some supervision at least should be exercised. As to the finality of the decision which is about to be made, or, to put it another way, as to whether the committee might not include the items here disallowed in his final accounting and then secure a final adjudication upon them, I do not here attempt to decide. It seems, however, clear to me that some of the items included in the accounts before me are improper ones, and that I should, therefore, disallow them.
The committee makes a charge of a total of eleven visits from his home in Florence in this county to Utica State Hospital, where the incompetent person is confined, charging five dollars expenses for each visit, a total of fifty-five dollars. Upon his examination he admitted frankly that the visits were purely social or friendly, and were not necessary for the administration of the estate. It seems to me, therefore, that they cannot be charged against the estate, and I, therefore, disallow those items.
The account contains items of six trips from Florence to Utica to consult with Mr. Fitzgerald, the committee's attorney. On one of these occasions it appears that it was necessary for the committee to make a deposition in reference to some claims made on behalf of this estate, and that item is, therefore, clearly allowable. As to the other five, I am not so clear. It would appear that most of the business with the attorney might have been done by correspondence; however, the committee testifies that he made all of the visits to see Mr. Fitzgerald about the business of the estate, and that in his judgment it was important, if not necessary, that he should do so, and I, therefore, feel disinclined to disallow the items. He has charged five dollars for expenses on each item, except one for which he charged ten dollars, being an occasion when he stayed in Utica over night; and it appears from his examination that one of the items of expense was two dollars charged for livery on each occasion. It also appears that the committee has a team of his own, and that on all but two occasions he used his own team. Upon the authority of Pullman v. Willetts, 4 Dem. 536, this charge must be disallowed, viz., a total of eight dollars.
The committee has also in his account taken out full commissions, both for receiving and disbursing the entire amount of money which has come into his hands. It appears that he was appointed in February, 1901, and that he has received money from several sources, and has disbursed considerable but not all of it. In a case like this, where the entire corpus of the estate is likely to be consumed, I think it is allowable for the committee upon his annual accounting to deduct commissions upon what he has actually received and paid out, but he certainly cannot deduct commissions for both receiving and paying out upon what he still has in his hands; neither do I think the practice which obtains in some quarters of committees taking out one-half commissions for receiving the estate is a matter of good practice.
The account of this committee must be surcharged by adding the items of fifty-five dollars and eight dollars. It must be further corrected by putting back into the fund the item of seventy-four dollars and fifty-eight cents commissions on the whole sum; but, after doing that, the committee may deduct from the balance which will then be shown, his commissions as fixed by law upon so much of the estate as he has both received and paid out.
Ordered accordingly.