
    In the Matter of the Accounting of Harry C. Wesley, as Committee of the Person and Property of Rosina C. M. Taylor, an Incompetent Person, Respondent. Utica State Hospital, Appellant; C. Robert Edwards and Others, Respondents.
    Fourth Department,
    April 30, 1913.
    Insanity—accounting by committee of incompetent—preference of claim of State for maintenance of incompetent.
    Where upon the accounting of the committee of an incompetent, a balance remains after the payment of expenses and disbursements, the claim of the State for maintenance of the incompetent at a State hospital is preferred over claims of general creditors, existing at the time of the appointment of the committee, although at the time the incompetent was admitted to the State hospital she was insolvent and indigent.
    Appeal by the Utica State Hospital from a decree of the County Court of Oneida county, entered in the office of the clerk of said county on the 24th day of April, 1912, settling and allowing the account of Harry 0. Wesley, as committee of the person and property of Rosina 0. M. Taylor, an incompetent person.
    
      Jeremiah F. Connor, Deputy Attorney-General, and Thomas Carmody, Attorney-General, for the appellant.
    
      Albert J. O’Connor, John C. Evans, Ward J. Cagwin and J. S.. Schwarz [M. J. Larkin of counsel], for the respondents.
   Kruse, J.:

The Attorney-General appeals from the adjudication made upon the accounting and distribution of the incompetent person, contending that the claim of the State for maintenance of the incompetent in the Utica State ■ Hospital is a preferred claim over the general creditors, the court below having held to the contrary. (Matter of Taylor, 75 Misc, Rep. 157.) The matter comes here upon the findings and certain exceptions filed thereto and the decree from which the appeal is taken. Ho evidence was taken upon the accounting as is stated in the record, or at least none is returned.

The incompetent, person was committed to the Utica State Hospital October 13, 1909, and remained there until May 14, 1910. She was admitted again November 12, 1910, and still' remained an inmate of the Utica State Hospital at the time of the accounting. On or about June 23, 1911, a committee was appointed for the incompetent. The property, of the incompetent consisted almost entirely of household effects. The committee has converted the same into money, amounting to $592.70, besides $9.58 tax rebate, and also $23 received for property the title to which was in dispute, but which according to the decision belongs to the incompetent, making in all $625.28. The expenses and disbursements of the committee amount to $207.69, leaving $417.59. The personal property sold was also subject to the lien of a chattel mortgage outstanding October 13, 1909, given to secure two claims, one of $26.90 and another of $41, making $67.90 besides interest. The amount of the claim of the State is $358.64, and the unsecured claims of the general creditors amount to upwards of $1,800.

Without going into the details of the account, it is sufficient to say that after paying the fees of the committee and the allowances made upon the accounting, there is a balance left for distribution among the creditors of $176.61.

It further appears that the incompetent was adjudged an insane person on or about October 13, 1909. Whether that finding refers to the order of commitment or an adjudication upon an inquest is not clear. Probably it refers only to the former, as there is no other finding made as a basis for committing the incompetent to a State hospital, and that is the date of her admission to the State hospital, and the committee was not appointed till June 23, 1911.

It also appears from the findings that the incompetent person at the time she was so adjudged incompetent and admitted to the State hospital, was insolvent and indigent; that she has a daughter, and that at some time between May 14, 1910, and November 12, 1910, she was married to one Dr. Hinchen R. Taylor, who is still living.

The Insanity Law -provides that all poor and indigent insane persons not in confinement under criminal proceedings shall, without unnecessary delay, he transferred to a State hospital and there wholly supported by the State. (Consol. Laws, chap. 27 [Laws of 1909, chap. 32], § 85, as amd. by Laws of of 1910, chap. 389; since amd. by Laws of 1911, chap. 768.) It requires the father, mother, husband, wife and children of an insane person, if of sufficient ability, and the committee or guardian of his person and estate, if his estate is sufficient for-the purpose, to cause the insane person to be properly and suitably cared for and maintained, and in a proper case, as prescribed by the Insanity Law, provides for an order committing him to a State hospital. It further provides: 1 cIn all claims of the State upon relatives liable for the support of a patient, or upon moneys or property held by said patient, the State shall be deemed a preferred creditor.” (Insanity Law, § 86, as amd. by Laws of 1910, chap. 608.)

It is contended on behalf of the general creditors of the incompetent that the right of the State to receive compensation depends upon whether the estate of the incompetent at the time of the adjudication of incompetency was sufficient for that purpose; that if it was not, the State must care for such person without compensation; and that inasmuch as the incompetent’s estate was insolvent at that time and she was indigent within the meaning of section 2 of the Insanity Law (since amd. by Laws of 1912, chap. 121), she not having sufficient property to support herself while insane, the State has no claim against the estate of the insane person. If that is so, it of course logically follows that the general creditors are entitled to take the net balance of this estate, and that the State is not entitled to share therein.

While the statute provides that all poor and indigent insane persons shall he supported by the State, that, I think, does not prevent the State from reimbursing itself for the support of such persons, if they in fact have property out of which the same may be collected, or collecting the same of the persons liable for the support of such poor and indigent persons.

I think the claim of the State is preferred over claims of general creditors existing at the time' of the appointment of the committee. Not only does the Insanity Law in express terms give preference to the claims of the State, but that is in harmany with our laws and Constitution making the claims of the State preferred over other creditors of an insolvent. (Matter of Carnegie Trust Co., 206 N. Y. 390.) The amount owing the ■ State at the time of the appointment of the committee is more' than what is left of the estate, and upon the findings made I think the State is entitled to what is left.

The order of the County Court should be modified by directing the payment of the net balance of $116.61 to the Utica State Hospital, and as so modified the order so far as appealed from should be affirmed, without costs of this appeal to any party. .

All concurred.

Decree modified by directing the payment of the net balance to the Utica State Hospital, and as so modified the decree-appealed from is affirmed, without costs of this appeal to either party..  