Stephens v. Marshall

Barrett, J.:

In the main we concur in all the conclusions arrived at by the Special Term. Not a penny should have been allowed to the inebriate for spending money. What he needed ought to have been purchased for him. All proper recreation could have been provided without intrusting him with the means of indulging his diseased appetite. The spending money was, in fact, a downright temptation to him. We do not look upon this as a mere error of judgment upon the part of the committee. It was, to say the least, gross negligence, not far removed from the line of bad faith. It exhibited a reckless disregard of the true interests of the unfortunate man confided to their care. We agree with the learned counsel for the respondent, that if any error was committed by the court below upon this head it was upon the side of leniency to these trustees.

The item of twenty-six dollars and twenty-five cents was also properly disallowed. It was not made clearly to appear that Stephens, if in the possession of his faculties, would, in all probability, have paid this item himself. The expenditure was not, therefore, brought within the case of Ex parte Heeney (2 Barb. Ch., 326). The testimony with regard to it was by no means clear, and as owing to the failure to file the proper inventories every presumption is to be taken againt the committee (In re Carter, 3 Paige, 146) we think the ruling of the Special Term should be sustained.

The reasons assigned by the court below for charging the committee with one-half the expenses of the accounting are satisfactory. There was no error in the statement contained in Mr. Justice Yan Yobst’s opinion that the committee, delayed the disclosure of the amount of moneys remaining in their hands to the credit of Stephens. An account was, it is true, submitted at the commencement of the reference, but it was incomplete and was subsequently amended in the particular mentioned. Apai’t from this we think the conclusion of the Special Term was warranted by the failure to file regular inventories as required by law (which would have facilitated the accounting), and by the fact that part of the expense was due to the investigation with regard to the spending money improperly allowed to Stephens.

The question as to the commissions is not altogether free from doubt, but upon the whole, we are inclined to agree with the court below, that the committee have forfeited their right to compensation. Ordinarily, it is true, a trustee is sufficiently punished for an act of negligence by being charged with the sum lost thereby. It was held in Meacham v. Sternes (9 Paige, 399) that a trustee is entitled to commissions upon sums with which he is so charged, in consequence of losses arising from his negligence. But there is a plain distinction between moneys lost to an estate by the negligence of the trustee, and moneys charged to the trustee because their expenditure was improper and subversive of the purposes of the trust. The former is an isolated act of negligence, consistent with general good management. The latter goes to the very heart of the trusteeship and stamps it with general mismanagement. It was here the duty of the committee to resort to all reasonable means for the restoration of the inebriate to his normal condition. The failure to perform that duty is transparent and conspicuous. They did the very reverse. They added fuel to the flame. It was indeed an error of judgment, and we must be permitted to say, a very grave one, to send this man away to a remote country town, where, instead of the careful treatment which he might have had in some proper asylum like that on Ward’s Island, he was left in the hands of a person not only devoid of experience or training in the care of inebriates, but who constantly provided him with liquor obtained from a neighboring manufacturer. This was bad enough, but when it is combined with improvident expenditure and highly reprehensible provision for continued indulgence, it stamps the trusteeship as faithless. After a full consideration of the evidence, we cannot bring ourselves to think that this committee is entitled to commissions.

The order appealed from should, therefore, be affirmed, with costs. If there has been any clerical error to the disadvantage of the committee, as would seem to be the ease, it can be corrected at the Special Term, or if the facts are not disputed, and there is no substantial contest about it, upon the settlement of the order on this appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.