
    In the Matter of Esther Edwards, an Incompetent Person. Benjamin W. Knower, as Special Guardian of Said Incompetent, Appellant; Albert P. Stevens, as Committee of Said Incomptent, Respondent.
    Third Department,
    January 8, 1906.
    Surrogate’s Court—when special guardian of incompetent may appeal from decree settling accounts of committee — payment of allowance to such guardian Hot a waiver of right to appeal.
    The fact that the special guardian of an incompetent has been allowed and has been paid costs out of the estate on an accounting by the committee of said incompetent, does not constitute a waiver of the right of such special guardian to appeal from a decree of the surrogate settling the account. The incompetent is not prejudiced because the special guardian has merely received just compensation for his services, and the committee is not prejudiced because the sum was paid out of the estate.
    Chase, J., dissented.
    Motion by Albert P. Stevens, as committee of Esther Edwards, an incompetent person, to dismiss an appeal by Benjamin W. Knower, as special guardian of said incompetent, from a decree of the Surrogate’s Court of the county of Albany.
    
      Robert E. Whalen, for the committee.
    
      Eugene Flanigan, for the special guardian.'
   Kellogg, J.:

' This is a motion by the respondent to dismiss the appeal to this court taken by the special guardian. Upon an accounting of the committee of the incompetent before the surrogate the appellant was. appointed special guardian of the incompetent and -Sought to surcharge the account of the committee and raised certain objections thereto. The decree of the surrogate settled the account, finding in the hands of the committee $1,530.58 and ordered to be paid from the estate the executor’s commissions and certain costs, among which was $150 to the special guardian for his services, and his disbursements not to exceed $40. This allowance was paid by the committee to the special guardian, and it is how claimed that-the receipt thereof‘is a. waiver of the right of the special-guardian to appeal. The special guardian was' appointed by the surrogate to protect the -rights of the incompetent upon the account ing, and the surrogate awarded costs to him from the estate in payment for his - services. He was fairly entitled to be paid for his services without regard, to the result upon the accounting, or the result on the appeal, for the estate liad the benefit .of them. It is fair, therefore, to assume that the same allowance would have been . / i e * granted him in any decree which the surrogate- might make in the premises. His acceptance of the allowance was, therefore, not inconsistent with his right to appeal, though this allowance was entirely independent from the other provisions of the order, and the acceptance of the money does not prejudice the- rights of the committee in ' any respect, The rule is well stated in Matter of Water Commissioners of Amsterdam (36 Hun, 534) as follows: “That this doctrine of waiver is to be applied in -those cases only where the appellant has attempted to enforce the order in his favor, or some part thereof connected with or dependent uppn such other part, as he seeks to avoid by his appeal or has accepted a benefit having such connection ór dejiendency.” Here the incompetent cannot be prejudiced by reason of the fact that the officer of the court, appointed by the court-to protect her rights,' has received from the incompetent’s estate a just compensation for his services. It does no prejudice or injury to the committee, as in any-event the estate pays it. The case of Marvin v. Marvin, No. 1 (11 Abb. Pr. [N. S.] 97) is not an ■ authority to the contrary. There, following a decision of the Court of Appeals in the case, the surrogate annulled the probate of the will, with- costs to be paid by the executor proponent, reserving for future consideration whether it should be charged against- him personally or froto'the estate, and directed him to file an account of the property and its disposition.. The respondent rno'ved to dismiss the appeal to the General Term on the ground that the proper bond was . not given. This motion was granted upon condition that the respondent stipulate that the decree appealed, from be modified by striking therefrom all the provisions relating to "the inventory and that he pay ten dollars costs of tile motion. The stipulation.was filed and the costs were paid tó .the appellant. He theii appealed to the Court of Appeals from the order, and it was held that accepting the costs which were imposed as a condition of the order was a waiver of his right to appeal. The probate of the will had already-been set aside pursuant to the judgment pf the Court of- Appeals. The estate was not, therefore, interested; the questions at issue upon the appeal from the order related to the executor personally and not to the estate. The case, therefore, does not hold that an acceptance by an executor of costs of á motion awarded to him deprives the estate of the right .to appeal where the estate is aggrieved.

Upon this motion the/iourt cannot determine the appeal. It will assume that the special guardian in • making the appeal is acting within the line of his duty and has brought the appeal in the real interest of the incompetent. The motion to dismiss the appeal is, therefore, denied, with ten dollars costs.

All concurred, except Chase, J., dissenting. .

Motion denied.  