In re the Appointment of a Committee of the Person & Property of Kalthoff , 274 A.D. 881 ( 1948 )

At the time when the order appealed from was signed, the members of the immediate family of the incompetent were in marked disagreement concerning the person or persons to be appointed as committee of his person and property. Special Term therefore appointed as committee two individuals having no connection with the family, viz., Joseph P. Kelly and Robert J. Fitzsimmons. Since the entry of said order, the incompetent’s family, consisting of his four daughters, who reside in different parts of the United States, have agreed upon the appointment of Gordon Miller, a lawyer who is the brother-in-law of one of these daughters, and Isidor Weis, who has been the personal attorney for the incompetent for about forty years. These men have stipulated that they will, if appointed, -accept as full compensation for their services one set of commissions to be divided between them. Where the immediate family of an incompetent are in accord respecting the person or persons to be appointed committee, their choice ordinarily should prevail (Matter of Rothman, 263 N. Y. 31; Matter of Williams, 252 App. Div. 314; Matter of Dunst, 260 App. Div. 914; Matter of More, 268 App. Div. 1055). In this instance, as stated, such agreement did not occur until after the entry of the order appealed from, which is unanimously affirmed insofar as it appointed Kelly and Fitzsimmons, on condition that they stipulate in writing to accept a single set of commissions as their sole remuneration for serving as committee of the person and property of the incompetent, such stipulation to be filed in the office of the county clerk and a copy served upon the attorney for the appellants and upon the special guardian within ten days from date of this order. Such affirmance is without prejudice, however, to a motion by the appellants at Special Term to substitute Gordon Miller and Isidor Weis as committee of the person and property of the incompetent in lieu of said Kelly and Fitzsimmons, who have as yet not entered far upon the performance of their work as committee. In event that said Kelly and Fitzsimmons fail so to stipulate, the order appealed from is modified by eliminating the portion thereof appointing them as committee. The order appealed from, in any event, is unanimously modified by reducing the allowances to the attorney for petitioner to $5,000, to the special guardian to $2,000, and to the commissioner to $1,000. All parties are allowed their legal disbursements on this appeal payable out of the incompetent’s estate. Settle order on notice. Present — Peck, P. J., Glennon, Cohn, Van Voorhis and Shientag, JJ.