Opinion
November 28, 1961
Order, entered on January 16, 1961, confirming the Referee's report, settling the account of the committee and fixing fees and commissions, unanimously modified, on the law, the facts and in the exercise of discretion to the extent of remanding the matter to Special Term for the purpose of taking further proof as to the origin and ownership of the assets in the Swiss account and, upon application of any of the parties, for the purpose of directing the committee to apply before the Surrogate for appropriate relief if Special Term deems it advisable to do so in the light of the further proceedings ordered and, pending the final determination of this proceeding, the fixation of fees and commissions to be held in abeyance, and as so modified the order is otherwise affirmed. Costs of this appeal to all parties filing briefs, only if it is ultimately determined that the Swiss account contains assets belonging to the incompetent's estate and in that event costs to be payable out of the incompetent's estate; otherwise no costs to any of the parties. On the record as it now stands before us it is difficult to determine whether the assets in the Swiss account were the property of the decedent or of the incompetent. Proof as to the source of the assets in that account would be most helpful. Although some attempt was made on the part of the appellants to trace some of the incompetent's assets to the Swiss account, it cannot be said that such attempt was wholly successful. In any event the evidence is far from satisfactory. We believe that there should be a further attempt on the part of the committee to obtain proof as to the source of the assets in the Swiss account. It appears that the Swiss records which may throw some light on the subject have not been examined nor has any attempt been made to do so. Our conclusion in this regard is fortified by what appears to be the tacit concession of the parties that there has not been a full exploration of the records which might possibly be made available. As this case involves the property rights of an incompetent — a ward of the court — we deem such proof essential and we direct that the matter be remanded for its production or if not produced, for an explanation satisfactory to the court for the failure to do so. In the interest of orderly procedure and in order to avoid conflicting results, it might be appropriate, depending upon developments, for any party to make application in the Surrogate's Court for corrective relief if they are so advised. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and Steuer, JJ.