
    In the Matter of the Application of Michael G. McInerney for Leave to Sue the Union Trust Company of Rochester, as Committee of the Person and Property of William J. Silcox, an Incompetent.
    Supreme Court, Monroe County,
    December 4, 1929.
    
      Mann, Strang, Bodine & Wright, for the application.
    
      Webster, Straus & Lamb, opposed.
   Rodenbeck, J.

An estate of an incompetent is in the control of the court and the committee acts under its appointment as agent, officer or bailee. Through him the court must preserve the property entrusted to it and therewith maintain the lunatic and his family. But the lunatic is not divested of his estate or property rights, and the legal title thereto remains as before. Nothing has been taken from him but its control and management,” and this has been placed in the hands of the court and it is the duty of the court to see that the legal rights of other creditors are protected so that there may be, as nearly as possible, an equitable distribution of the estate. (People ex rel. Smith v. Commissioners of Taxes, 100 N. Y. 215, 218; Grant v. Humbert, 114 App. Div. 462; Carter v. Beckwith, 128 N. Y. 312.)

The applicant on this motion has a mortgage on a piece of property of the incompetent, and, instead of pursuing the usual proceedings for foreclosure of his mortgage under which he could secure a deficiency judgment, if the property did not sell for enough to satisfy his claim, he asked the court to permit him to sue upon the bond. Such a course might imperil the condition of the estate and seriously embarrass the administration of the estate, which is not able, under present conditions, to realize enough from the property to meet carrying charges.

It has been expressly held in a number of cases that the Supreme Court has authority to restrain the enforcement of asserted claims against a lunatic’s estate, and to compel the claimant to establish his demand as it may prescribe.” (Matter of Delahunty, 18 N. Y. Supp. 395; 28 Abb. N. C. 245.)

The motion is denied, with ten dollars costs.

So ordered.  