
    Matter of the Accounting of Mary S. Goff, as Committee of the Person and Property of Burton H. Goff, a Deceased Incompetent.
    (Supreme Court, Monroe Special Term,
    March, 1909.)
    Insane persons — Guardianship — Compensation of committee — Personal services of wife in caring for incompetent.
    Upon the settlement of the account of a committee of the personal property of an incompetent person after his death, the court cannot allow to the late committee, his widow, compensation for her personal care of him during the last three years of his life, while suffering from paresis and unable to take care of himself, as extra compensation as the committee of his property.
    Motion to confirm the report of the referee appointed to take and state the accounts of the committee and to take the evidence thereon, and also with reference to the claim of the committee for additional compensation.
    Nelson E. Spencer, for committee, for motion.
    Charles M. Williams, special guardian, opposed.
   Foote, J.

Ho objection is made to the accounts of the committee as found by the referee; and the referee’s report-in this respect should, therefore, be confirmed.

The committee asks to be allowed fifteen dollars per week for 144 weeks as additional compensation over and above her commissions, and her claim is based upon the extent and character of the personal services which she performed for the deceased incompetent during the last three years of his life. The deceased incompetent was her husband, and she lived with him and took personal care of him during these years. He was suffering from paresis and was not competent to care for himself. During the first two years he required constant watching to keep him from wandering away from their home, and during the last year he was confined for the most part to his bed, and the care which she gave him was such as a nurse would be expected to give. It was, no doubt, very trying and difficult work; and, if it were legally permitted to award her special compensation, the amount claimed would not be unreasonable under the circumstances. The claim is based upon section 2338 of the Code, which is as follows: “A committee of the property is entitled to the same compensation as an executor or administrator. But in a special case, where his services exceed those of an executor or administrator, the supreme court or a county court within the county may allow him such an additional compensation for such additional services, as it deems just. The compensation of a committee of the pqrson must be fixed by the court, and paid by the committee of the property, if any, out of the funds in his hands.” This is not an application to fix the compensation of the committee of the person, but for extra compensation as committee of the property. It would seem that such extra compensation could only be allowed for special and extraordinary services in relation to property; but, however that may be,- and assuming that it may be treated as an application to fix the compensation of the committee of the person, I think no allowance can be made to the committee for the services on which her claim is based. They are services rendered by her as the wife of the incompetent and not as his committee; and they are such services as she would have been expected to render and would have rendered, exactly the same, had some other person been acting as his committee, in which case it is clear that she would not have been entitled to compensation.

The learned counsel for the committee refers to chapter 289 of the Laws of 1902 (now section 60 of the Domestic Relations Law in the Consolidated Laws), as a legislative sanction of the right of the wife to claim compensation here; but this statute certainly was not intended to give the wife a right of action against her husband for services rendered by her in the household. It has reference to services she may render for others and not for her husband.

My conclusion is that the claim of the committee for compiensation for the nursing and personal care of her husband cannot be allowed.

Ordered accordingly.  