Butler v. Jarvis , 58 N.Y. Sup. Ct. 248 ( 1889 )

Van Brunt, P. J.,

(dissenting.) I cannot agree with Mr. Justice Daniels as to two of the conclusions at which he has arrived in the opinion written by him; namely, that the supreme court had jurisdiction to call to account a servant and officer of the court of common pleas for a trust reposed in him by that court; and, secondly, that the supreme court had power to amend, revise, and correct the judgment of the court of common pleas rendered upon the passing of the accounts of the defendant as committee on the 15th of December, 1874. The ground upon which this jurisdiction is sought to be upheld is that the supreme court has become the successor of the jurisdiction of the court of chancery, which court had jurisdiction of most of the proceedings of a committee appointed to take care of the estate of a lunatic. Attention is called to the fact that the committee of a lunatic was not appointed by the court of chancery, but by the chancellor; and the authority and jurisdiction which the court of chancery exercised over a committee thus appointed arose not from any power conferred by statute, but because of the general jurisdiction which said court exercised over trustees. But it seems to me that due regard has not been given to the fact that the jurisdiction of the court of chancery has not descended solely upon the supreme court, but that such jurisdiction was at the time of the abolition of the court of chancery, and since that time has been, conferred upon other courts wliich exercise chancery jurisdiction concurrently with the supreme court. There seems, also, to be overlooked another change in the legislation affecting the custody and control of the persons and estates of lunatics. Prior to the abolition of the court of chancery the power to appoint a committee of the person or estate of a lunatic was vested in the chancellor as an individual, and not as the head of the court of chancery, and therefore the power to appoint a committee of the person and estate of a lunatic, by the establishment of the supreme court as a court of general equity jurisdiction, was not thereby conferred upon that court; and, unless there had been a complete change in the scope and method of the appointment of such committees, the supreme court, as a court of general equity jurisdiction, would have been entirely without jurisdiction to appoint a committee of a lunatic, although it may be the successor of the court of chancery. But upon the abolition of the court of chancery the powers and duties, not only of the court of chancery, but of the chancellor, devolved upon the supreme court as such, and the care and custody of the persons and estates of lunatics were conferred upon the supreme court, and not upon any individual member composing that court. In the court of chancery it was the chancellor personally that made the appointment. Subsequent to the abolition of that court it was the supreme court which made the appointment, and it was that court which had jurisdiction over the committee as trustee of the estate. Up to this time, perhaps, and prior to the enactment of the Code of 1848, the court of common pleas had no jurisdiction of the estates either of lunatics or drunkards. But by the Code of 1848, § 30, it was provided that county courts should have jurisdiction in all actions and proceedings for the care and custody of the person and estate of a person of unsound mind, or an habitual drunkard, residing in the county, thus conferring upon these courts co-extensive and concurrent jurisdiction with the supreme court upon these subjects. In order to remove any doubt as to the jurisdiction of the court of common pleas, an act was passed in 1854 by which power and jurisdiction were conferred upon the court of common pleas to exercise in the city of New York all the powers and jurisdiction now or thereafter conferred upon or vested in the said court, or the county courts in other counties, and the jurisdiction which was vested in the court of common pleas of the city and county of New York before the enactment designated as the Code of Procedure passed April 12, 1848. By this legislation the care and custody of the estates and persons of lunatics was conferred upon the court of common pleas to precisely the same extent that it had been conferred by the Revised Statutes upon the chancellor and the court of chancery, and by the judiciary act upon the supreme court as their successor. It is therefore apparent that the jurisdiction over the committees appointed by reason of this power conferred upon both the supreme court and the court of common pleas does not arise from any equity jurisdiction possessed by either of those courts, but springs out of the fact that they have jurisdiction conferred upon them by statute in all actions and proceedings for the care and custody of the persons and estates of persons of unsound mind, or habitual drunkards.

It is necessary next to consider the relation of the court appointing the committee to the estate of the lunatic. It has been stated by the learned counsel for the respondent that “it is true that the court of common pleas has repeatedly decided in the present case that the committee of a lunatic is an officer of the court appointing him. No other court has ever so decided, and such decision was never made except in this case.” He then proceeds to state that such decision was made by that court for some ulterior purpose. It would appear upon an examination of the cases that the court of common pleas had' not only quite ancient, but also very respectable, authority for calling the committee appointed by it its officer or servant. As long ago as the year 1861 it was held by the general term of the supreme court in Re Clapp, 20 How. Pr. 385, that upon the return of a commission of lunacy, with the inquisition annexed, finding the alleged lunatic of unsound mind, the court became invested with the control and care of his property, and was authorized to appoint a committee to take charge thereof; and the committee, after such appointment, was entrusted with such property as officers of the court. And in 1882 this decision was approved by the court of appeals in Re Beckwith, 87 N. Y. 503, and in which case the court further held that the place of a committee vacated by ■death could only be filled by the court which appointed him, and whose servant and bailiff he was; holding also that the sections of the present Code regulated the proceedings in that matter, although the committee had been appointed in 1855. These adjudications seem to have furnished ample authority for the court of common pleas styling the person whom it had appointed its officer or servant. These eases further establish the proposition that by the appointment of the committee of the lunatic the care and custody of the lunatic became vested in that court. It is expressly so stated in the Case of Clapp, above referred to, and also in Re Beckwith, in which latter case the court say: “The care and custody of the lunatic and his estate were vested in the supreme court, (and became so vested by the appointment of the committee,) and whether any, and, if any, what costs and disbursements should be allowed to him, or an attorney acting in his behalf, * * * presented a question to be determined in its discretion, and according to its estimate of the character of the application and the conduct of the party. This would seem to be an expresss recognition of the right of the court appointing the committee to exercise its control over the estate, and that all questions in regard to the administration of the trust were entirely within its jurisdiction. If the care and custody of the lunatic and his estate were vested in the supreme court in the case cited, because of the appointment of the committee, and such court had the right to determine in its discretion what costs and disbursements should be allowed to the committee, or an attorney acting in his behalf, then certainly it had the power, and it only had the power, to determine whether the trust had been properly and completely administered. And, further, if the care and custody of the estate is vested in the court making the appointment of the committee, and the estate is in the hands of that court, and it can exercise its discretion as to the costs and disbursements which should be allowed to its officer or servants, by what authority can any other ■court of simply equal jurisdiction exercise the discretion which is vested in the court making the appointment, and divest that court, which had first acquired jurisdiction and possession of the estate by means of its committee, of such custody and control ? But it may be said that by the death of the lunatic, under the provisions of section 2344 of the Code, and of the Revised Statutes before the Code, the power of the committee ceases, and the property of the decedent must be administered and disposed of as if a committee had not been appointed, and that this deprived the court of its exclusive jurisdiction. In the Case of Beckwith, above cited, the court of appeals plainly intimate that such cannot be the case. They there state that, although upon the death of the lunatic the powers and functions of the committee ceased, the court might, perhaps, before passing over the property to the administrator of the lunatic, have made provision for the expenses incurred while the estate was under its supervision,—a clear recognition of the fact that the estate is in the court where it had teen vested by the proceedings which resulted in the appointment of the committee, and that the court passes over the property to the administrator. Under the statute, (section 2343, Civil Proc.,) when the lunatic becomes competent to manage his own affairs, and it is so adjudicated, and hence the power of the committee ceases, he cannot reclaim his property from the committee’s hands without the intervention of the court making the appointment, as the form of procedure in such a case is prescribed by the section referred to, which is that such court must require the committee to restore to the former lunatic his property. So, when the lunatic dies, the po'wer of the committee ceases, but his liability as such continues, and he is not discharged until the court appointing him has ordered such discharge in the same manner as is provided in the last section quoted. This function of discharging a committee is vested in the court appointing him, and can only be exercised after such court has ascertained that the trust has been faithfully performed according to its directions. Under this condition of the law, the defendant being plainly the servant and officer of the court of common pleas, if the defendant under and by direction of the supreme court, in an action for the passage of his accounts, should pay over the trust fund, it is clear that he would still be amenable to the court of common pleas, and that that court might call him again to an account, and that the proceedings in the supreme court would be no bar, because such proceedings would be absolutely without jurisdiction. It is difficult to understand, where a trust is vested in a particular court having jurisdiction of the subject-matter, that another court may intervene and deprive it of that jurisdiction, without some express legislative authority. The books are full of cases that, where courts have concurrent jurisdiction, and a proceeding is initiated in one, such proceeding is held to be a bar against the commencement of another in a different court.

But in answer to this proposition it is urged that this argument would be just as effective if applied to the case of an executor or guardian who may account before the surrogate, or the case of a voluntary assignee who might account before the court of common pleas, in each case being directed thereto under certain specific laws in their behalf. And reference is made to the fact that the supreme court has jurisdiction in an equity action to compel these persons to an accounting and payment over of the assets. The first distinction between these cases and the one at bar is that neither the executor, nor the guardian, norths assignee, is the servant or officer of either the surrogate or of any judge of the court of common pleas; and that the care and custody of the estate which they administer are not vested either in the surrogate or in the court of common pleas. Certain summary statutory powers have been conferred upon the surrogate in the case of executors and guardians, and upon the judges of the court of common pleas, as such, and not upon the court in respect to assignees, but it is only the conferring of summary jurisdiction upon those individuals over those trustees in the management of their trust-estates; and the supreme court, by reason of its general equity jurisdiction, and the court of common pleas as well, within certain territorial limits, have the same authority over such trustees as the court of chancery always exercised in those cases in which the chancellor made the appointment. And even in the cases cited, where proceedings had been commenced either before the surrogate or before one of the judges of the court of common pleas upon any subject-matter connected with those various trusts of which they had jurisdiction, the existence of those proceedings would be an answer in any action brought in the supreme court or the court of common pleas to obtain the same relief. This consideration disposes of the objection that by holding that the court of common pleas became vested with the care and custody of the estate of the lunatic by reason of the initiation of these proceedings, and has the exclusive right to control its own officer and servant, thereby the supreme court is deprived of some of its constitutional rights. It is true that the supreme court is a court of general jurisdiction in law and equity. • It is also true that, the legislature cannot deprive the supreme court of such jurisdiction. But the rule has been, since the existence of courts of concurrent jurisdiction, that, where two or more courts possess jurisdiction over a given subject, that court which shall first acquire the same shall have jurisdiction exclusively. This is not depriving any court of any part of its jurisdiction, but is simply regulating methods of procedure, and this right has been recognized too frequently to need the citation of authorities here.

It is further suggested that the committee of a lunatic is no more the officer of the court than is the guardian of an infant; and reference is made to the fact that the security to be given by the committee is similar to that given by the guardian of an infant, appointed by the surrogate’s court, and that the condition of the bond provides that he will in all respects render a just and true account of all money and other property received by him, and of the application thereof, and of his guardianship, "whenever required to do so by a court of competent jurisdiction. It seems to me that it would be carrying the doctrine of legislation by implication to an extent never before known, to hold that, because of the introduction of those words in the bond of a committee, therefore any court of equitable jurisdiction has power to call him to an account. The origin of those words, when we consider the jurisdiction which the surrogate originally had, is very apparent. The surrogate, by the Revised Laws, had authority only to appoint a guardian. He had no power to remove him, or to call him to an account; and whatever authority was conferred upon surrogates to remove guardians, or to direct and control their conduct and settle their accounts, seems to have been first conferred by the Revised Statutes. Prior to that time he had no general jurisdiction over a guardian as trustee. This jurisdiction was solely exercised and to be exercised by the court of chancery having the same jurisdiction over statutory or testamentary guardians as it had over guardians in socaye. It was therefore necessary that the guardian should be required to account before some court having cognizance of the subject. And so, at the present time, although the jurisdiction of the surrogate has been extended so that he has the power to call upon the guardian to account, yet such jurisdiction is not exclusive, and upon a proper proceeding, brought for the purpose, such guardian may be called upon to account by the supreme court. In respect to a committee, the court appointing him having become vested with jurisdiction of the person and estate of the lunatic by virtue of such appointment, it is the only court of competent jurisdiction which maycall him toan account, and the condition of the bond is entirely harmonious with the legal rights conferred. It has been already stated, in considering the decision of the court of appeals in Re Beckwith, that it is held by that court that the care and custody of the lunatic and his estate were vested in the supreme court by virtue of its appointment of a committee, and that whether any, and, if any, what costs and disbursements should be allowed to the committee, was a question jfco be determined in its discretion, according to its estimate of the character of the application and the conduct of the party. Upon the settlement of the accounts of the committee, how is another court to exercise this jurisdiction which has been vested in the court making the appointment? But it is urged that, the lunatic having died, and the powers of the committee having ceased, therefore all authority over the estate is terminated, and the persons entitled thereto may appeal to any jurisdiction for the purpose of enforcing their rights. In this assertion the fact that the property is in the custody of the court appointing the committee, and that that court must act in order to turn over the property to the administrators of the deceased lunatic, seems to be entirely overlooked. The fact that the property remains in the custody of the court, and under its control, and is to be passed over under its direction, is expressly recognized by the decision in the Case of Beckwith, in which the court says that the court may, perhaps, before passing over the property to the administrator of the lunatic, have made provision for expenses incurred while the estate was under its supervision. Here it is expressly recognized that the estate is in the hands of the court making the appointment, that it has been all the time under its supervision, and that that court is to pass over the property to the administrator of the lunatic, and that in passing over the estate the court may make provision for the expenses incurred while the estate was under its supervision. It had been previously stated in that opinion that those expenses were within the discretion of the court appointing the committee. How, then, I repeat, can this discretion be exercised by another court? In fact, the whole course of decision upon this question shows that the court acquiring jurisdiction by the appointment of the committee had control of the estate, and that it was that court which must pass it over to the administrator, and that no other court could interfere with the administration of the estate, and ‘with the committee appointed. It is precisely in the same condition as in the case of a receiver, who is an officer of the court, and over whom no other court has any jurisdiction whatever.

Conceding that an action may be maintained by the legal representatives of a deceased lunatic against a former committee in a court other than that appointing him, as a person having in his hands property to which such legal representatives have title by reason of their successorship to the deceased lunatic, such action must be against such former committee as an individual having property of the deceased in his hands to which such legal representatives are entitled, and cannot be maintained against him as committee, because as committee he is only amenable to the court of his appointment, whose officer and servant he is. In such an action a recovery could only be had for the property which the former committee has actually in his possession. The claim that besought to have had more cannot be there litigated, because, being the officer and servant of the court appointing him, he is only answerable to that court for the manner in which be has performed his duties, and it is for such court, and such court only, (certainly in the first instance,) to determine whether its officer and servant has been derelict in his duty, and should have realized more from the trust fund than he has done. In the Case of Beckwith it is expressly held that the amount which should be allowed to the committee for expenses of administration presents in these cases a question to be determined by the court appointing such committee, in its discretion, and according to its estimate of the character of the services rendered, and that in the case of the decease of a lunatic such expenses may be provided for before passing over the property to the personal representative of the deceased lunatic. If this is the case, how can another court usurp these functions, and exercise this discretion? In the case at bar, Mr. Jarvis being the officer and servant of the court of common pleas, in which court the custody of the estate of the lunatic had become vested, what other court can determine the questions as to what expenses should be allowed,—a matter within the sound discretion of that court alone, as we have seen,—and as to whether he was derelict in his duty in not keeping the estate more closely invested, and that he should therefore be chargeable with interest which had not been earned, .or that he had forfeited his claim for commissions because he had'not performed his duties faithfully as an officer of the court of common pleas? If the supreme court has jurisdiction to consider these questions, such court might be of opinion that he should not be allowed certain expenses for which the court of common pleas might be of opinion that, under the circumstances of the case, he should be allowed, and we would have the anomalous condition of affairs that the supreme court would be deciding the question as to whether or not the officer and servant of the common pleas had performed his duties to the satisfaction of the latter court, and exercising the discretion which is lodged solely in the court of common pleas as to expenses which were to be allowed to its officer and servant. I have considered this question entirely independent of the provisions of the Code, as it does not seem to me that the Code has added anything to the law as it existed prior to its enactment. The provisions of the Code, § 2320, are that where various courts have jurisdiction of these matters, namely, the custody of the property of a person incompetent to manage himself or his affairs in consequence of lunacy, idiocy, or habitual drunkenness, the jurisdiction of the court first exercising it as therein described is exclusive of that of the others with respect to any matter within its jurisdiction. Section 2322 provides that the jurisdiction must be exercised by a committee of the person or of the property; and section 2339 provides that a committee, either of the person or the property, is subject to the direction and control of the 'court appointing him, and that he may be suspended, removed, or made to resign, in the discretion of the court, and that a vacancy created by death, removal, or resignation may be filled by the court. By this section is committed to the court making the appointment the absolute control and direction of the committee with respect to the execution of his duties, and that this is a subject-matter which must necessarily arise in the accounting of every committee is so apparent that it does not need discussion for the purpose of its elucidation. This is one of the matters for which provision is made in the Code, and it is therefore one of the matters of which the court appointing the committee has exclusive jurisdiction. Section 2342 seems also to recognize the fact that only the court making the appointment may take cognizance of the accounting. If the appointment is made by the supreme court, it directs the county judge of the county where the order appointing him is entered to examine or cause to be examined, under his direction, all accounts and inventories filed by the committee of the property since the 1st of February in the preceding year. If it appears upon examination that the committee has failed to file his annual inventory and account, or if the judge is of opinion that the interest of the person for whom the committee was appointed requires that he render a more full or satisfactory account, he may make an order requiring the committee to supply the deficiency, and that is all. He cannot proceed to examine the account for the purpose of passing upon the same so far as it may discharge the committee or "charge the committee. All that he can do is to compel the committee to file an account, and, if it be not satisfactory, to file an additional account, and, if the additional one is not satisfactory, or if the committee fails to comply with the order, and the judge has reason to believe that sufficient cause exists for the removal of the committee, he may appoint a fit person to be special guardian, for the purpose of filing a petition in his behalf for the removal of the committee, and prosecuting the necessary proceedings, these proceedings necessarily to be prosecuted in the court appointing the committee. If it had been intended to confer general jurisdiction upon other courts to assume control of the proceedings of a committee, certainly it would have been conferred in the section referred to upon the county judge, or the presiding judge of the court by whom the committee was appointed. But it is clearly not intended to confer any such authority, but the authority was intended to vest and exist only in the court which has made the appointment of the committee. The application for the removal of the committee must necessarily be made to the court which makes the appointment, because the Code expressly provides that the removal shall be made by such court. And the fact that it can only be made by such court is recognized by the court of appeals in the Case of Beckwith, already cited. This general jurisdiction to call a committee to account, if it exists at all, exists during the life-time of the committee as well as upon his death as such, and as none but the court appointing him can remove him, or give directions as to the administration of the trusts, the court assuming jurisdiction of a committee appointed by another court to call him to account would be powerless to remove him, no matter what derelictions the committee had committed, or to give any directions as to the administration of the trust,—a condition of helplessness in which no court of equity has ever before found itself in respect to any trustee over whom it has jurisdiction.

It is urged that jurisdiction is expressly excluded in the exigencies of the present case, as no provision is made, or method suggested, for the recovery by the heirs upon tile death of the lunatic of the property remaining in his hands. If the lunatic recover, the court orders it turned over; and if the lunatic die, the power of the committee ceases, and the property of the deceased must be administered as if a committee had not been appointed. This objection assumes that the custody and control of the property of the lunatic has been vested in the committee. Upon the contrary, as we have seen, the control of the property of the lunatic has been vested in the court which appointed the committee, and the committee is simply the servant and officer of that court, and has no right whatever to turn over that property to anybody except such person as may be designated by the court making the appointment. In fact, the property is deemed to be in the custody of the court ail the time. The committee is its mere agent and servant for the administration of the same; and when the property is passed over to the administrator of the deceased estate, it is passed over by the court which holds it, and which made the original appointment of the committee. As already said, when it is once established—as it has been, both upon principle, and by the adjudications to which reference has been made—that the property of the lunatic is in the custody of the court, and that the committee is its mere agent for the administration of this property, then it necessarily follows that no other court, under any circumstances, can interfere with that administration, and deprive the court which made the appointment of that custody, any more than it could interfere with the custody of property in the hands of a receiver appointed by another court. I am therefore of the opinion that the supreme court had no jurisdiction to entertain the action calling the committee to account in that court, appointed as he was by the court of common pleas.

It is conceded that the court of common pleas had jurisdiction to call the committee to an account, and to pass such account, and that its directions in regard to the disbursement of the funds committed to its care were binding upon the supreme court in this action; and yet by the judgment in this case the judgment of the court of common pleas upon the accounting is impeached, and corrections attempted to be made therein, because, in the opinion of this court, the evidence before the court of common pleas did not justify the conclusions to which it arrived. In the accounting before the court of common pleas there was an express adjudication as to the amount of money in the hands of the committee at the time of such accounting, and it is thereby adjudged that, over and above his credits as commissions, the defendant iiad in his custody $53,231.72 in money and securities, and that he was entitled to a compensation of $5,000 for his services as committee up to this time; $1,806.21 being the amount of his commissions, which hail been deducted by the referee from the amount with which the committee was charged; and the remaining sum of $3,193.79 making up the $5,000 the committee had a right under the order of the court to draw, leaving in his hands the sum of $50,-031.93. Notwithstanding this adjudication, the learned court below, because in its judgment theevidence which had been attached to the report of the referee did not justify this conclusion, proceeded to correct this account, and, instead of the committee being charged with $50,031.93,—the amount found by this judgment to be in his hands,—he is charged with the sum of $55,-074.18. I cannot conceive how this court has any authority whatever to impeach this judgment upon any ground. If any mistake had been made in the judgment, it was for the court of common pleas to correct it. The court of common pleas had jurisdiction of the committee, of his accounts, of his method of executing the trust, and of the allowances which should be made to him for his expenses in the execution of the trust, and had adjudicated upon that subject up to a given time. This court cannot revise or modify that decision or that judgment. It may think it erroneous; it may think that it proceeds upon a false basis; or it may think that the conclusions were not deducible from the evidence; but those considerations give this court no authority to review or amend the judgment pronounced by that court years ago. The assumption of this authority certainly reverses all the rules which have governed the conclusiveness of judgments of courts of competent jurisdiction. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide event.