I dissent on two grounds: First. Heretofore allowances from estates of lunatics in New York have been to the next of kin, or those members of the family for whom the lunatic would be bound to provide. In Matter of Willoughby (11 Paige, 257) and Matter of Farmers’ Loan & Trust Co. (99 Misc. Rep. 420; 181 App. Div. 642) the recipients were the next of kin. Second. It is to be remembered that the powers of the chancellor as immediate representative of the Crown do not vest in this court, or the County Court. (Bascom v. Albertson, 34 N. Y. 584, 590, 592; Holland v. Alcock, 108 id. 312, 330.) The equitable doctrine that can be enforced is that there must be a duty of support or education toward the members of his family or to some special object of his interest which can be thus fulfilled by the Court of Chancery.
Of course the court has inherent power to reimburse its officials, or the committee which has acted as curator over the administration of the estate. (Matter of Wallace, 172 *214App. Div. 544; Matter of Maxwell, 218 N. Y. 88.) Having formerly been Mr. Haslett’s attorney, Lord was not a curator, committee or even the petitioner for the appointment of the present guardian. Learning that Decker and Gardner had obtained an improper power of attorney, Mr. Lord, the petitioner," laid the facts before a magistrate, who issued a warrant for their arrest. When they had been set free, each sued Lord for malicious prosecution. He compromised the actions by paying $1,000 to each plaintiff and incurring upwards of $5,700 legal expenses. The payments and settlements stand as an acknowledgment of his liability.
No contract could be implied. When the suits against Mr. Lord were started in 1916, a committee for four years had been the custodian of the estate. The petition shows no privity on the part of such committee with the petitioner’s defense or with his negotiations that led to this compromise. Through resort to the idea of a quasi contract, a lunatic’s estate was made to pay for necessaries. Equity stretched this to take in certain objects of the incompetent’s prior bounty toward those of his household and in rare cases to those charities which he had been wont to support. But we are asked to make Mr. Haslett’s estate an indemnitor — which is never presumed. Beyond that, to indemnify a tort-feasor for his payments to the injured party, wherein even a sane and competent person is not hable to make contribution or indemnity. (14 R. C. L. 48.)
Could a court thus put on the estate of this incompetent (first) a lawyer’s responsibility for invoking the criminal law, and (second) direct payment of the compromise sums incurred after acquittal of those whom he had accused? It may be that Mr. Lord has a moral claim, but we are concerned with a legal liability of a lunatic’s estate for such voluntary compromise of tort actions.
I think the County Court rightly denied the application.
Jenks, P. J., concurred.
Order of the County Court of Kings county reversed, and the petition referred back to said court for disposition in accordance with opinion by Kelly, J., the question of costs of the appeal to be determined upon the final disposition.