
    Matter of the Application of Mary M. Bartelme for the Appointment of a Committee of Seth Abbott, an Incompetent Person.
    (Supreme Court, New York Special Term,
    February, 1901.)
    Incompetent person — Appointment of committee of property within this State where the incompetent and his committee are both nonresidents — Code C. P., § 3826.
    A non-resident committee or guardian of a non-resident incompetent may be appointed by our court committee of the property of the incompetent within the State of New York, but it is discretionary with the court whether it -will take such action or appoint a resident.
    Application for the appointment of a committee of an incompetent person.
    De Lagnel Eerier, for petitioner Mary M. Bartelme. •
    Butler, Hotman, Joline & Mynderse (Arthur H. Van Brunt, of counsel), for Murdock & Abbott, petitioners.
   Truax, J.

This is an application to remove a non-resident, who has heretofore been appointed committee of the property of a non-resident lunatic, and to appoint another non-resident as committee of the property of such lunatic. It is doubtful whether, prior to the passage of section 2326 of the Code of Civil Procedure, this court had the right to appoint a non-resident committee of the property within this State of a non-resident lunatic. The law contemplates that such a committee shall reside within the reach of the process of the courts of this State, in order to secure the performance of his duties and to enforce his obligations to account. See Code Civ. Pro., §§ 2339, 2341, 2342; Matter of Neally, 26 How. Pr. 402. It has been held in Maryland that a non-resident will not be appointed such committee. Boarman’s case, 2 Bland Ch. 89; Morgan’s case, 3 id. 332; see, also, Chamberlain v. Greenleaf, 4 Abb. N. C. 92. Section 2326 of the Code of Civil Procedure provides that, where the person alleged to be incompetent resides without the State and within the United States, and. a committee or guardian has been duly appointed pursuant to the laws of the State or Territory where he resides, the court may, in its discretion, make an order appointing the foreign committee or guardian the committee of all or of a particular portion of the property of the incompetent person within the State. I am of the opinion that neither the non-resident committee, who has heretofore been appointed in this State, nor the petitioner Bartelme, comes within the provision of this section; the first because he has been removed by the court who appointed him, and the second because the incompetent did not reside within the State at the time Bartelme was appointed conservatrix. It is to be noticed that the section of the Code above referred to says that the court may, in its discretion, appoint. In view of the conflicting claims made here by the non-residents, I think it would be better that some resident should be appointed committee of the property, and as the property is now, and has been for years, in the custody of the Farmers’ Loan & Trust Company, I appoint that company committee of the property of the incompetent within this State.

Ordered accordingly.  