
    In the Matter of the Inventory and Second Intermediate Judicial Account of Nina M. Nutting, Committee of the Property and Estate of Thomas B. Nutting, Jr., an Incompetent. George H. Hart, Special Guardian of Thomas B. Nutting, Jr., Appellant; Nina M. Nutting, as Committee, etc., of Thomas B. Nutting, Jr., Respondent.
    
      Incompetent — Ms rights as to care and maintenance by Ms committee — vouchers must be furnished by the committee for items exceeding §20 and aggregating more than §500—: committee not credited .with sums given in charity—power of the Appellate Division to correct the committee’s accounts.
    
    Wliere. an order appointing a woman committee of the .estate of her insane, husband, whose only source of income was his share in the profits of an insurance business, authorizes the committee to continue such business and apply the income thereof to the payment of the debts of the incompetent, if any, and to his maintenance and that of his wife and minor children, the incompetent is. entitled to receive'such care and maintenance as is essential to his comfort so far as his estate warrants.
    Where, upon an intermediate accounting of the committee, it appears that she expended substantially the entire income from the lunatic’s business, amounting to over §3,000 a year, for the maintenance of herself and children and that she had had the lunatic committed as a charity patient in a state insane asylum where he rendered services in caring for other inmates thereof, and the committee paid nothing for his maintenance in any form, and it does not appear whether the lunatic received the same care and comfort at the asylum that he would receive if the committee paid for his support and maintenance, the Appellate Division ordered proof to he taken upon the question whether the committee had discharged her obligation in this respect.
    Section 2729 of the Code of Civil Procedure, providing that, on an accounting by an executor or administrator in the Surrogate’s Court, items of expenditure may be allowed without vouchers when the item does not exceed §20 and - the whole amount of such items so allowed does not exceed, in the aggregate, §500, applies to an accounting in the Supreme Court by the committee of a lunatic.
    The committee of a lunatic is not entitled to be credited upon her accounting with sums which she has devoted to charity out of the incompetent’s income. Upon an appeal from an order confirming the report of a referee appointed to take and state the account of the committee of an incompetent, the Appellate Division has no power to correct the account.
    Appeal by George H. Hart, as special guardian of Thomas B. Nutting, Jr., an incompetent person, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of July, 1901, confirming the report of a referee and settling, determining and allowing the second intermediate judicial account of Nina M. Nutting, as committee of Thomas B. Nutting, Jr., an incompetent person.
    On February 19, 1895, the respondent, Nina M. Nutting, was appointed by the Supreme Court a committee of the property and estate of Thomas B. Nutting, Jr., her husband, an incompetent person. The petitioner and her husband were residents of New Jersey, and the incompetent was engaged in business in the city of New York as an insurance broker.
    The petitioner had previously been appointed guardian of the person of her husband in the State of New Jersey. The only property possessed by the incompetent in the State of New York or elsewhere, except the amount in the hands of his committee, is certain articles of office furniture, used by him in conducting the insurance brokerage business in the city of New York and valued at $250. His only source of income is his share in the profits of the insurance business.
    
      The order appointing the respondent as committee provided that she be authorized to continue the said insurance business and apply the profits arid income of said business so far as the same shall be necessary to the payment of the debts of the said Thomas B. Nutting, Jr:, if any, and for his maintenance and that of the said Nina M. Nutting and for the maintenance and education of their three minor children.
    The insurance business, is now conducted by one Eckert under: an agreement made between him and said committee whereby she is to receive one-half of the gross receipts of the commissions and profits thereof, in behalf of the incompetent. In December, 1900, the petitioner filed her second intermediate judicial 'account, and on the. 10th day of January, 1901, applied to the Supreme Court, New York county, for the settlement thereof, and on that day an order-was duly entered sending said accounts to a referee, to examine, hear and determine the questions' arising upon the settlement thereof, arid George H. Hart, thé appellant herein, was appointed special guardian of the said incompetent.
    . The income derived from the incompetent’s business between February 1, 1898, and October 9, 1900, and paid over to the said committee, amounted to _ $9,089.65,including the sum of $236.13 received for rent. .
    The committee secured the commitment of the incompetent to the State Hospital at Morris Plains in the State of New Jersey as a charity patient, the hospital being maintained by the State, as a charitable institution for the insane. Nothing is paid by the committee for his care and maintenance, and he performs certain duties in looking after other patients.
    . The committee in her account alleges that she has expended $8,260.41 which was for the maintenance of herself and children for the period between January 31, 1898, and October 9, 1900. This should leave in her hands as a balance $829.24, but this balance is' merely nominal, for out of it she has procured an order authorizing her to retain for herself $252.24 for commissions and to pay her attorneys $150, to the special guardian $100 and to the referee $125, amounting to the sum of $627.24, leaving the actual balance $202:. She shows that she has consumed this money for the benefit of herself and children, but in accounting therefor she has failed to furnisli vouchers for the amount of $2,183.24 expended in many items.
    The referee reported that the said account as' filed was just and true and in conformity with the law and should be allowed, and upon the report of the referee coming before the court for confir-. motion it was ordered that the said report be confirmed; from such order this appeal is taken. ,
    
      George H. Hart, for the appellant.
    
      Albridge O. Smith, for the respondent.
   Hatch, J.:

So far as the first accounting is concerned, while the items of that account appear in the record, yet no attack is made thereon, all the parties in interest acquiesced therein, and the court having confirmed the same we must regard it as finally settled and not the subject of review upon this appeal. This conclusion leaves alone for our consideration the exceptions which were taken to the report •of the referee in the allowances which have been made to the committee in her account. By the terms of the order appointing her such committee, the first provision, after a direction for payment of the incompetent’s debts, is to pay from the profits and income of the business conducted by the committee such sum as shall be necessary for the maintenance of the lunatic. It is conceded that the lunatic has been placed in the asylum as a charity patient and that, the committee has paid nothing for his maintenance in any form ; it is further made to appear that he renders some service in caring for other inmates therein, but whether such service is an offset to his being supported free of charge is not made clearly to appear. The committee would be guilty of no impropriety or of neglect in the discharge of her duties to the incompetent by procuring him to be cared for in a State institution for the insane without charge if thereby he was properly cared for and maintained so far as consistent with the restraint necessarily imposed upon him. The incompetent, however, becomes entitled to have and receive such care and maintenance as is essential to his comfort, so far as his estate warrants. This is the first and primary duty imposed upon the committee after the payment of debts, and the neglect to minister to his care and comfort, so far as is compatible with the value of his estate, is a. neglect of the Committee to discharge a plain duty imposed by the; order appointing her. (Matter of Reed, 22 App. Div. 328; affd. on appeal, 160 N. Y. 702; Matter of Colah, 3 Daly, 529; May v. May, 109 Mass. 252.) If he receives such care and maintenance; without any charge upon his estate the committee will have discharged her duty in this respect, but i't devolves upon her to show that such is the fact, and it becomes the duty of the court to see- and also enforce the performance of this duty if the committee has. failed to properly discharge the same. In the record before us such fact is not made to appear, and it is not an unfair inference to draw that a charity patient does not receive the same care and:comfort as one for whose care and maintenance payment is made. It may be that his attendance upon other. patients, when his mental capacity, permits of the discharge of such duties, is of benefit to the incompetent ; and it may be that such duties would be performed by him if payment for his support and maintenance was made by the committee, but these facts should all be made to appear in order that the court may be enabled to see that the committee.has discharged - her duty in this respect! The present record is barren of proof' showing such fact. It becomes the duty of this court, therefore, to-direct that.proof be taken upon that subject.

The expenditures from the estate of the lunatic for which vouchers were produced seem to be correct. It appears, however, that. $2,183.24 has been expended for which no vouchers whatever were-produced. So .far as the items which go to make up this sum are small in amount,, it would be entirely proper to make allowance therefor within the limitations permitted by law, the account containing such items being produced by the committee and the expenditures verified by her statements under oath. By the provision of section 2729 of the Oode of Civil Procedure such items of expenditures may only be allowed without, a voucher when the item does not exceed $20, and the whole amount of such items so.alio wed shall not exceed in the aggregate $500. This provision of the Oode is applicable to accountings of committees of incompetent persons. (Matter of Chapman, 43 App. Div. 231; revd. 162 N. Y. 456, but not upon this point, nor was the construction which the court below gave to the sections of the Code covering such' accountings at all disturbed.) While it may entail some inconvenience upon the committee to produce vouchers for small items of expenditures, yet the law requires vouchers to be produced within the limitations provided for in the Code. It is clear, from an examination of the account, that the referee was not .justified in passing the accounts of the committee in a sum over four times the amount authorized by the Code without the production of vouchers. This account is aise subject in this respect to an objection upon the merits. It appears from the account in the book kept by the committee that there were several items of expenditure, one as high as fifty-six dollars and several items above twenty dollars. For these disbursements no warrant in law exists for allowing unless a voucher be produced or by showing its loss or destruction by competent proof. It is evident, therefore, that the referee was wrong in allowing and the court in confirming the accounts to this extent.

The item of one hundred and sixty-nine dollars and eighty-five cents, under date of July, 1899, was also improperly allowed, as the only proof with respect to this item was the statement of the committee that she paid it to herself, but for what purpose does not appear. The only voucher is a check. The payment July 1, 1898, to estate of Mary D. Moore of fifteen dollars was improperly allowed, as the committee testified that this was a loan to pay a bill of her mother’s estate. The account also shows that small sums have been devoted to charity amounting in the aggregate from twelve to fifteen dollars or more. We find no justification for these items.

The order appointing the committee also provides for the maintenance and support of the committee and her children and the education of the latter. It is, therefore, evident that the committee’s position, in view of the limited character of the estate, requires economy in the discharge of her duties. Her account should not be subject to captious objection, and considerable liberality should be observed in passing upon it. In view of the circumstances, we should not have regarded the last-named expenditures, to which we have called attention, as sufficient to interfere with the affirmance of the order confirming the report of the referee. A sensible and just adjustment of the small matters may be easily arrived at, but as to the condition of the lunatic and his needs, the allowance of items in excess of twenty dollars for which no voucher is produced, and the passing of accounts for less than that sum, in excess of five hundred dollars in the aggregate, are without warrant of law and require correction at our hands. The guardian who brings this appeal was justified in calling the matter to the attention of this court, and the service which he has rendered to his ward is commendable.j It-might be possible on this appeal, perhaps, to correct this account, but we have no power to do so. (Matter of Chapman, 162 N. Y. 456.)

The order of confirmation should, therefore, be reversed and the proceeding remitted to- the court below for further action, with costs to the special guardian payable out of the estate.

Van .Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Order reversed and proceeding remitted to the court below for further action, with costs to the .special guardian payable out of the estate.  