In re Livingston , 9 Paige Ch. 440 ( 1842 )

The Chancellor.

There is no difficulty in granting so much of the prayer of the petition as asks for permission to apply the surplus income of the lunatic’s property to the improvement of the unproductive real estate. The committee may also be authorized to apply a reasonable portion of the capital of the personal estate, to the extent of twenty or twenty-five thousand dollars, if he shall deem it expedient to do so, in building upon such of the vacant lots as are so situated as to produce an immediate and fair income from such improvements.

But I do not consider this court as authorized to allow to the committee for his services any greater or different compensation than that which is fixed by the revised statutes as the allowance to be made to executors and administrators and guardians. Previous to the act of the 15th of April, 1817, authorizing the chancellor to settle a rate of allowance for the services of executors, administrators and guardians, (Laws of 1817, p. 292,) I am not aware of any case in which the court of chancery in this state or in England, had allowed a direct compensation to the committee of a lunatic for his personal services. In the anonymous case which came before Lord Eldon in 1804, (10 Ves. jun. 103,) he refused to make an order allowing the committee any thing for his care and trouble ; saying he did not recollect an instance where such an allowance had been made. The case that comes the nearest to a direct allowance, previous to 1817, is that of Annesley in 1749, (Amb. Rep. 78,) where Lord Hardwicke, under very peculiar circumstances, being unwilling to make a precedent of a direct allowance to the committee for his services, directed a new petition to be presented asking for an increased allowanee for the support of the lunatic. In 1821, however, Lord Eldon made a precedent, in the case of Errington, (Jac. Rep. 406,) by allowing to the committee of the estate a per centage for managing the estate and collecting the rents and profits thereof; which allowance, as appears by a subsequent statement by Mr. Collin son who was counsel, was fixed at five per cent upon the amount of rents collected. (See the matter of Errington, 2 Russ. Rep. 567.) As a general rule, however, the court of chancery in England still adheres to the ancient practice of not allowing any thing to the committee for his care and trouble in the management of the lunatic’s estate, beyond his actual expenses and disbursements. (Stock’s Law of Non Comp. Ment. 125. Shelf. Law of Lun. 162.)

But in the case of Roberts, (3 John. Ch. Rep. 43,) Chancellor Kent held that the case of a committee of a lunatic was within the equity of the statute of April, 1817, authorizing a fixed allowance for the services of executors, administrators and guardians. And in the case of Mc Worter v. Benson, (Hopk. Rep. 28,) his successor in office decided that the court was only authorized to make allowances in such cases according to a settled or fixed rule or rate, and could not vary the compensation in reference to the circumstances of each particular case. This was also considered as the settled law of this court in the case of VanderheydenY. Vanderheyden, (2 Paige’s Rep. 287.) The principles of these decisions must, therefore, be considered as applicable to the compensation to be allowed to committees of the estates of idiots, lunatics and habitual drunkards, as well as to guardians and executors and administrators ; although such committees are not named in the act of 1817, nor in the revised statutes, as entitled to such fixed compensation for their services. And no other allowance will be made to the committee for his personal services, exclusive of his actual expenditures and disbursements.

In this case the petitioner is entitled to charge commissions upon the periodical statements of his accounts, according to the decision of this court in the case of Kellogg, an infant, (7 Paige’s Rep. 265.) And if the interest of the estate requires the employment of an agent or clerk, the committee may present a petition, for leave to employ one and to pay him out of the income of the lunatic’s property; due notice of such application being given to the other children and presumptive heirs of Mrs. Livingston. The situation of this estate, amounting in the aggregate to about four hundred thousand dollars, and producing an annual income of from eighteen to twenty thousand, probably requires the employment of such clerk or agent. But the principles upon which this court acts do not permit the employment of the committee himself as such clerk or agent, if he is to receive an extra compensation for his services.