
    In the Matter of the Estate of Fred A. Dittrich, Deceased. Clara B. Ketchum, Individually and as Administratrix, etc., of M. Helena Dittrich, Deceased, Petitioner, Respondent; Benjamin H. Dittrich, as Executor, etc., of Fred A. Dittrich, Deceased, Appellant.
   Davis, J. (concurring).

I concur on the ground that there was no proof on the hearing as to the extent and nature of the estate of the incompetent person and of the income therefrom at the time the purported gifts were made, so that it is impossible to determine whether if the gifts had been allowed, under the equity powers of the court, the corpus of the estate and the support and maintenance of the incompetent person would have been impaired by reason of the gifts. I recognize that the doctrine is well established that a court of equity may approve of the payment from the estate of an incompetent of gifts of sums of money to those to whom the incompetent person owed a moral, though not a legal, obligation and for purposes related to religion, charity and benevolence, and such sums are payable from the income of the estate where the income is in excess of the needs of the incompetent person. (Matter of Heeney, 2 Barb. Ch. 326; Matter of Farmers’ L. & T. Co., 181 App. Div. 642; affd., 225 N. Y. 666; Matter of Flagler, 130 Misc. 375; Matter of Flagler [In Re Sarah Moore], Id. 554; Matter of Strickland, [1871] L. R. 6 Ch. App. Cas. 226; Matter of Earl of Carysfort, [1840] Craig & P. 76; Ex parte Whitbread, [1816] 2 Mer. 99; Matter of Whitaker, [1889] 42 Ch. Div. 119.) The facts do not bring this ease within that rule.

Hill, J. (dissenting).

I dissent and vote for reversal and a new trial. The Supreme Court could have permitted these gifts, if application had been made and a good cause shown during the life of the incompetent. (Matter of Farmers’ L. & T. Co., 181 App. Div. 642.) The Surrogate’s Court, in the exercise of its equity jurisdiction, could approve past endeavor of the incompetent person to make the gifts if the status of the estate justified it.  