#### Edwin M. Wright, as Committee of the Estate of Harriet H. Arnold, Plaintiff, *v.*Henry W. Hayden and James A. Whiting, as Executors, etc., of Mary Hart, Deceased, Defendants.

(Supreme Court, New York Trial Term,

April, 1900.)

1. Incompetent person — Action by committee for distributive share accruing to incompetent after appointment of committee — Bond.

The committee of an incompetent may maintain, in his own name with his official title added, an action against executors who withhold a distributive share in the estate of another person which has devolved upon the incompetent after the committee was appointed, and the refusal of the executors to pay, based on the fact that the amount of the bond of the committee was fixed before the incompetent became entitled to the distributive share and that the bond is therefore insufficient, is not justifiable, as the amount of the bond does not concern the executors and they are protected in payment to the committee.

The committee is entitled to the whole personal estate of the incompetent, whether existing at the time of the appointment or accruing thereafter.

3. Same — Proceedings where bond is insufficient.

*Semble,*that if the bond of such a committee is insufficient to meet new conditions, some relative of the incompetent, having an. interest in the protection of the estate, should apply to the Supreme Court to have the bond increased.

Action to recover distributive share of estate.

Gratz ¡Nathan, for plaintiff.

Ward,. Hayden *&*Satterlee, for defendants.

McAdam, J.

The action is by the plaintiff, as committee of the estate of Harriet H. Arnold, to recover $2,350, the amount of the distributive share of said Arnold in the personal estate of Mary Hart, of which the defendants are the executors. Although there has been no judicial settlement of the accounts of the defendants as executors, they have fully administered the personal estate of the decedent, to one equal tenth part of which the said Arnold *117is entitled by the provisions of the will, and have paid to ¡each of the other distributees the nine-tenths to which they were entitled. The plaintiff was appointed the committee not of any particular fund, or of any specific property, but of the entire estate of said Arnold, whether *in esse*at the time of the appointment or not. The Code (§ 1819) provides that “ If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an. action against him, as the case requires,” etc. And section 2340, *supra,*provides that *“*A committee of the property, * * * may maintain in his own name, adding his official title, any action or special proceeding, which the person, with respect to whom he is appointed, might have maintained, if the appointment had not been made.” The facts bring the case within those two sections, which furnish warrant in law for the action. The real ground of the refusal of the defendants to pay the plaintiff is that as the amount of the plaintiff’s bond was fixed before said Arnold became entitled to any share in the estate of Mary Hart, deceased, who died after the appointment of the committee, they would not be protected by a payment to the plaintiff of the sum claimed. If the position taken by the defendants is tenable, no action could be maintained by any person acting in a representative capacity without making it appear that the penalty of his bond was fixed with reference to the particular demand sought to be enforced and to all possible contingencies. Such a contention cannot prevail. The amount of the bond which the plaintiff has given is no concern of the defendants, provided the amount was duly fixed by the court which appointed him, and it is not claimed that it was not so fixed. Payment by the defendants would fully protect them, and that is all they have a right to require. See Roderigas v. East River Savings Inst., 63 N. Y. 460. The only question open to the defendants is one of jurisdiction (Roderigas v. E. R. Sav. Inst., on subsequent appeal, 76 N. Y. 316), which does not arise here. The order appointing the plaintiff required him to give a bond in the penal sum of $10,000, the form of the bond being prescribed in the order. The bond was duly executed, approved and filed, and a commission in due form issued to the plaintiff under the seal of the court, giving him the care and management of the estate of said Arnold, real as well as personal. Having thus qualified, the plain*118tifí is entitled to dominion and possession of all the personal estate, and of the rents, issues and profits of the real property. “ The powers and duties of a committee closely resemble those of a general guardian of an infant. Our statutory policy tends to clothe him with complete control over the personalty, while his power over the realty is usually limited to leasing and the perception of profits.” Sedg. & Wait Title Land, § 204; and see 1 Fiero Spec. Pro. 723; Johnson v. Ayres, 18 App. Div. 495; 2 Crary Spec. Pro. (5th ed.) 37 *et seq.*The Code (§ 2337) provides that the provisions of article 1 of title 7 and section 2595 of article 5 of title 2, chapter 18, respecting the security to be given by the guardian of the property of an infant, appointed by the Surrogate’s Court, apply to a committee of the property of an incompetent person. A reference to the provisions thus made applicable to a committee will show that the section specifically mentioned (2595) simply authorizes a surrogate, if the value of the estate or fund is so great that the surrogate deems it inexpedient to require security in the full amount prescribed by law, to direct that a portion of the estate, consisting of securities, be delivered to the county treasurer or be deposited, subject to the order of the trustee countersigned by the surrogate, with-a trust company, and that, after such deposit has been made, the amount of the bond may be fixed with respect to the value of the remainder only of the estate or fund. The other provisions made applicable to the bond of the committee are those contained in section 2830, which provides for a bond not less than twice the value of the personal property and of the rents and profits of the real property, and further provides that, where it is impracticable for the guardian to give a bond sufficient to cover the whole amount of the personal property, the surrogate may accept security not less than twice the amount of the particular portion of the property which the guardian will be authorized under the letters to receive, and issue limited letters thereon, a procedure quite necessary and appropriate where the immediate purpose of the appointment of the guardian is. to administer some specific property and not the entire estate of the infant. The other sections of the article referred to in section 2337 have no relation to the matter of security. If the defendants, instead of distributing the personal estate without a judicial accounting, had instituted a proceeding for such accounting, the plaintiff would have been entitled to have a provision inserted in the decree directing the payment to him of *119the sum to recover which this action is brought. While section 2746 provides that, when a legacy or distributive share is payable to an infant, the decree may, in the discretion of the Surrogate’s Court, direct it, or so much of it as may be necessary, to be paid to his general guardian, to be applied to his support 'and education, and also may direct any such legacy or distributive share to be paid to the general guardian upon his executing and depositing with the surrogate a bond conditioned for the faithful application thereof by the guardian, there is no similar provision in the Code in respect to a share of personal property payable to an incompetent person, thus indicating that the committee in such a case is entitled to receive the legacy or distributive share, and that the surrogate has no power to insert in the decree a direction that he give any new security as a condition of receiving payment of the same. The Code (§ 2597) provides that any person interested in any estate or fund may apply, by petition to the surrogate, that the principal in any bond be required to give a new bond in a larger penalty upon a showing that the bond already given is inadequate in amount. That section is not made applicable to the case of the committee of an incompetent person, but, even if it did apply to the bond of a committee, the procedure is a distinct one, requiring a substantive application to be made for that purpose by petition, upon which the principal in the bond is to be cited to show cause why the prayer of the petition should not be granted. In the absence of an order in such a proceeding requiring the principal in the bond to furnish such new security, the standing of the guardian or committee cannot be questioned, especially by a stranger, upon any allegation of the inadequacy of his bond. If for any reason the bond ought to be increased in amount to meet the new condition, an application with that end in view should be made to the Supreme Court, the appointing power, by some relative having an interest in the protection of the estate (2 Crary Spec. Pro. [5th ed.] 41), and the court, on such an application, would no doubt fully protect all the parties in interest. For present purposes the bond seems sufficient. The *corpus*of the real property does not come within the control of the plaintiff (Sedg. & Wait Title Land, § 203; Walrath v. Abbott, 75 Hun, 445; Matter of Valentine, 72 N. Y. 184), and it will take some time before the share of the rents belonging to the person he represents will amount to a large sum. There is no force in the objection that the action was prematurely *120brought, for the plaintiff qualified and obtained leave to sue before suit brought. ■ There must be judgment for $2,491.40, the amount claimed, with interest from the expiration of one year after letters testamentary were issued. Redf. Surr. (3d ed.) 600, 601.

Judgment accordingly.