(concurring). We agree with the majority opinion surcharging the committee with the amount of $4,000 found in the safe deposit box and the sum of $1,000 allowed as a credit to the committee for the purchase of a tractor and insofar as it denies commissions and legal fees. We also agree that the committee was not subject to surcharge for expenses in the proceeding to declare Mrs. Kyle incompetent. We feel however that the committee should be surcharged in the further amounts herein set forth.
The committee following his appointment, without authorization from the court, retained Mr. Kyle to operate the combined *212farm properties. Out of this operation the appellant objects to certain items.
The committee takes a credit of $3,174.80 for farm labor in the year 1949, and in 1950 the committee takes credit for $3,335.75 for farm labor. Produced at the hearing were certain time books which were supposed to reflect a true picture of the labor hired in the operation of the farm, exclusive of the regular hired man who received $80 per month.
The committee was acting in a fiduciary capacity and was bound by law to make only those expenditures which he could substantiate on the accounting to his ward. Kyle was Behe’s agent during the two years the committee acted and if he chooses to accept his agent’s figures his trust in no way binds his ward. Kyle testified that he had no receipts or verifications for the amounts which were entered in his time book for wages paid to casual employees and that he took no receipts covering such payments. It is undoubtedly true that it is not customary to take receipts for wages from itinerant farm help, but that rule does not obtain here where the farm is being operated under committeeship.
Subdivision 2 of section 1381 of the Civil Practice Act sets forth what must be presented on a final accounting by a committee: “ The account to be filed * * * shall be verified and contain * * * an itemized statement of the receipts and disbursements * * * .” The section also directs that a summary statement shall be included m the final account and all vouchers shall be filed therewith. It would seem that under this section the committee should be surcharged unless he can substantiate the disbursements which he has grouped together for labor hired during the years 1949 and 1950. While we must assume that expenditures for labor were an annual occurrence prior to the time Mrs. Kyle was declared incompetent, in order to justify his position the committee should have shown that fact on the hearing, the burden being upon the committee to show all expenditures and receipts, and in this case having failed, he should be surcharged for the amount shown.
The next objection that calls for consideration involves failure on the part of the committee to obtain reimbursement from the incompetent’s husband for necessaries and maintenance during her incompetency. That the objection is well taken finds support in the case of Manufacturers Trust Co. v. Cray (278 N. Y. 380, 387). “ Though it appears that before she was adjudicated an incompetent and almost from the date of the separation, the wife was a patient in hospitals for those suffering from mental *213or nervous disturbance, yet there is no evidence that she was actually incompetent until the date when the incompetency was adjudicated. Until that time she was free to use her own money for her support, if she so chose, rather than to look to her husband for support. After a committee of her estate was appointed, she was no longer free to exercise such choice. The primary obligation to pay for her support rested upon the defendant, her husband. The committee was bound to see that the incompetent received support. It might use the moneys in the incompetent’s estate to pay for the incompetent’s expenses in the State hospital in accordance with the directions of the court, if the husband, primarily liable, failed to provide support; but it had no right to use the money of the incompetent to relieve the defendant from his obligation. The law implies a promise by the defendant to repay the amount which the committee was compelled to pay because the defendant failed to meet his obligation.”
Other cases cited by both appellant and respondent deal with section 80 of the Mental Hygiene Law. In the case of Matter of Fox (250 App. Div. 31) the husband’s liability for support and maintenance of his wife during her incompetency was conditional upon his financial ability to pay. This point is not raised by the committee so it can therefore be presumed that Kyle was of sufficient financial ability to so provide for his incompetent wife. The record discloses that he had two checking accounts in his own name and a savings account of $6,000. We are of the opinion that a surcharge for this item is in order. The items which go to make up this surcharge amount to $3,116.73.
For the reasons above stated, we feel that the committee should be additionally surcharged in the amounts above set forth.
All concur, except Vaughan and Piper, JJ., who concur as to the modification in the majority opinion but dissent and vote to surcharge the committee as to items raised by other objections, in a separate opinion. Present — Taylor, P. J., McCurn, Vaughan, Piper and Wheeler, JJ.
Orders insofar as appealed from modified on the law and facts in accordance with the opinion and as modified affirmed, without costs of this appeal to any party and matter remitted to the Niagara County Court for further proceedings in accordance with the opinion. Certain findings of fact disapproved and reversed and new findings made.