
    In the Matter of the Application for the Appointment of a Committee for the Person and Property of Annie V. R. Wells, an Alleged Incompetent Person. Annie V. R. Wells and Gertrude Baroness de Graffenried, Appellants; Schuyler Hamilton, Respondent.
    Second Department,
    March, 16, 1917.
    Incompetent person—proceeding for appointment of committee for alleged incompetent — petition denied.
    Although an aged woman may be found incompetent within the purview of section 2320 of the Code of Civil Procedure, the appointment of a committee of her person and property is not justified if her present situation and surroundings assure to her security of fortune, health of body, and happiness of mind.
    Proceeding for the appointment of a committee of the person and property of an aged woman of considerable wealth, brought by a grandson who had no legal interest in her estate, his mother being the apparent sole heir and next of kin. Evidence examined, and held, that as no waste or dissipation of the estate was shown and as the property of the alleged incompetent is being properly devoted to her care and maintenance by her relatives, the petition should be denied.
    Appeal by Annie V. R. Wells and another from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of December, 1916, granting the application herein.-
    
      Lauren Carroll, for the appellants.
    
      Arthur I. Strang, for the respondent.
   Jenks, P. J.:

This gentlewoman, past 94 years of age, is possessed of a considerable estate. She lives in her own house, of which her daughter, the Baroness de Graffenried, is an inmate. She is cared for by her, and is ministered to by old and apparently faithful servants. Her establishment is appropriate to her fortune and her station in life. The indications are that she lives in comfort and in happiness, and that her person and her property are safeguarded. Doubtless she is somewhat disabled by infirmities incident to great age, but there are no other indications of disability that show her condition is equivalent to that of lunacy. (See Matter of Clark, 175 N. Y. 142.) But even if she could be found incompetent within the purview of the statute (Code Civ. Proc. § 2320), the appointment of a committee would not be right if her present situation and its surroundings assured to her security of fortune, health of body and happiness of mind. (Matter of Burke, 125 App. Div. 889; appeal dismissed, 194 N. Y. 541; Matter of Vail, 137 App. Div. 220, 224; appeal dismissed, 199 N. Y. 560.) Why should she be deprived of liberty and of property unless such loss were essential to her welfare ?

The petitioner is a grandson who stands alone. He is opposed in his course by those as near to this aged lady as is he, and by his own mother, Madame de Graffenried. He has no legal interest in the estate of his grandmother, while his mother is the apparent sole heir at law and next of kin. He is somewhat estranged from his family. He asserts that his motive is his desire that the income of this aged lady should be expended upon her maintenance and that her estate should not be wasted. But it seems to us that the house as maintained for her and by her may require properly all of her income, and that it may have been necessary to eke out income from principal. But such expenditure is of her own fortune, not of his, or of any other’s money. Could there be a better or a more rightful use ?

There is neither waste nor dissipation of the estate shown. The estate has been and is administered under the eye of the apparent heir at law and next of kin, by a lawyer and by a man of business, of whom both make satisfactory showing of stewardship. The mortgages that are said to indicate improvidence were made incidental to the need of real estate, of which a part seems to have required improvement.

We think that the order should be reversed, with ten dollars costs and disbursements, and the petition denied, with ten dollars costs.

Stapleton, Mills, Rich and Blackmar, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and petition denied, with ten dollars costs.  