
    In the Matter of the Application of John T. Bladen and Ellen Haslett Samuel, as Committee of Samuel E. Haslett, an Incompetent Person, for Leave to Render an Intermediate Judicial Account of All Their Proceedings Affecting the Personal Property of the Incompetent which Came into Their Hands from the 18th Day of March, 1912, to the 18th Day of November, 1913, and of All Their Proceedings as Such Committee of the Person to the Said 18th Day of November, 1913, and to Have the Same Judicially Adjusted and Determined and Filed as a Final Judicial Account of Their Proceedings as Such Committee to That Time. Brooklyn Trust Company, as One of the Committee of the Property of Samuel E. Haslett, an Incompetent Person, Appellant, Respondent; John T. Bladen, as One of the Committee of the Person of Samuel E. Haslett, an Incompetent Person, Appellant, Respondent; Ellen Haslett Samuel, as One of the Committee of the Person of Samuel E. Haslett, an Incompetent Person, Respondent.
    Second Department,
    March 26, 1915.
    Incompetent persons — settlement of intermediate accounts of committee of person — allowances.
    Ordinarily, proceedings are unnecessary to settle the intermediate accounts of the committee of the person of an incompetent, as the accounts of such a committee are filed yearly.
    But where such a committee has an accumulating surplus consisting of a monthly allowance which has not been expended, an accounting should be had.
    Such a voluntary accounting following soon after that by the committee of the property of the incompetent should not be made burdensome to the estate.
    Allowances to the committee, to counsel and to the referee modified.
    Cross-appeals by the petitioner, John T. Bladen, as committee, etc., and by the Brooklyn Trust Company, as committee, etc., from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 29th day of September, 1914, confirming the report of a referee herein judicially adjusting and determining an account of the committee of the person of Samuel E. Haslett, an incompetent, and fixing the compensation of the committee with an award of costs and allowances.
    The petitioner, Bladen, appeals from all of said order except in so far as it judicially adjusts and determines his account and that of Ellen Haslett Samuel, as committee of the person of Samuel E. Haslett, as a final judicial account, and authorizes said committee to turn over to the committee of the property of the incompetent the sum of $9,502.30.
    The Brooklyn Trust Company, as committee, etc., appeals from all of said order except in so far as it awards to the firm of Dykman, Oeland & Kuhn the sum of $540.40 as and for their services and disbursements as attorneys for the Brooklyn Trust Company as one of the committee of the property of Samuel E. Haslett.
    
      Francis L. Archer [Edgar M. Cullen with him on the brief], for the appellant Brooklyn Trust Company.
    
      Robert H. Wilson, for the appellant John T. Bladen.
    
      S. Stanwood Menken, for the respondent Ellen Haslett Samuel.
   Putnam, J.:

The committee of the person of Mr. Haslett, an incompetent, presented to the County Court an intermediate account, covering the period'of twenty months — March 18, 1912, to November 18, 1913. The Brooklyn Trust Company and Mr. John T. Bladen had been appointed committee of the property of the incompetent, and Mr. Bladen, with Mrs. Ellen Haslett Samuel, committee of the incompetent’s person. The Code of Civil Procedure (§ 2322) expressly declares that the committee of the person and the committee of the property “may be the same individual, or different individuals, in the discretion of the court.”

On June 7, 1912, the committee of the property had been ordered to pay to the committee of the person $1,000 a month for the incompetent’s maintenance, Mrs. Samuel resided in Richmond borough and Mr. Bladen is a member of the bar in Brooklyn, so that the principal duties of the committee fell on him. A year after these appointments, the Brooklyn Trust Company and Mr. Bladen filed an account of the committee of the property. That accounting and the order settling the accounts is not before us for review. It was introduced to show that upon this earlier accounting Mr. Bladen as one of the committee of the property had been allowed $5,215.68 statutory commissions and $6,000 as extra compensation, with $5,162.92 as fee and disbursements of his attorney.

In December, 1913, the committee of the person filed 'its account and asked that it be judicially settled. In the twenty months covered it showed receipts, $18,432.06, disbursements for the incompetent of $8,929.76, leaving in hand $9,502.30. Instead of spending the monthly allowance, the disbursements had been under $450 a month, in which are medical expenses, as well as ordinary household outlays. An examination of the account reveals the committee’s care and prudence in its manifold duties.

On December fifteenth the court sent to a referee to state the committee’s account, and to report what this committee of the person should have as proper yearly compensation.

After hearings before the referee had begun, the Brooklyn Trust Company moved to vacate this order of reference, on the ground that the Code of Civil Procedure contained no provision for settling intermediate accounts of a committee of the person, and urging that for a committee of the person such proceedings were needless and expensive. This motion was denied, and the hearings before the referee went on and his report ensued. After this report Mr. Bladen moved to increase the referee’s recommendation of $3,300 as appellant’s yearly compensation, as well as the fee of $2,500 for Mr. Bladen’s counsel. The County Court, however, denied this motion for increases, and confirmed the report. The Brooklyn Trust Company and Mr. Bladen have each appealed.

Ordinarily' such proceedings to settle the intermediate accounts of the committee of the person are unnecessary. (Diaper v. Anderson, 37 Barb. 168.) The accounts are to be filed yearly to inform the court how the trust is being discharged. (Matter of Hawley, 104 N. Y. 250.) But this committee of the person had an accumulating surplus, and we cannot say that its petition for a settlement should not have been entertained. This large allowance was unlike a precise monthly payment to an asylum which carries no duty to account. When the sum allowed in advance has not been expended, the committee of the person should account. In such case the committee of the estate may apply against the committee of the person to find out what had become of the money which had been handed over for that specific purpose. (Matter of French, L. R. 3 Ch. App. 317.) But such a voluntary accounting with a judicial settlement thereof following so soon after that by the committee of the property, should not be made burdensome to the estate.

After careful consideration of "the referee’s report and instructive opinion, we find no ground to disturb his conclusions as to the committee’s yearly compensation. In reporting such compensation, the difficulties in connection with the'home and person of the incompetent, when the committee had to begin their duties, were rightly considered. These conditions and difficulties, however, are lessened as the duties and position of the committee become established. A majority of the court are of opinion that after November 18, 1913, the date of the present accounting, this compensation should be reduced so that Mr. Bladen shall thereafter be paid at the rate of $1,800 per year, with $900 per year to Mrs. Samuels.

As Mr. Bladen is himself a member of the bar, and in view of the allowances to his same counsel upon the prior accounting, Mr. Wilson’s counsel fee should be reduced to $1,500, also counsel for Mrs. Samuel should be allowed hut $750. It does not appear that the learned referee asked for the sum which the court allowed him as referee. While he has rendered important services, which for counsel of his standing may well he valued at the compensation allowed, the court cannot go beyond the terms of the statute (Code Civ. Proc. § 3296), to which limit of ten dollars a day, with his stenographic expense, we reduce the allowance made by the learned County Court.

As thus modified the order should be affirmed, with costs of this appeal to the Brooklyn Trust Company payable out of the incompetent’s estate.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Order modified in accordance with opinion, and as so modified affirmed, with costs of this appeal to the Brooklyn Trust Company payable out of the incompetent’s estate. Order to be settled before the presiding justice.  