The Special Term, in confirming the Referee’s report and rejecting other offers to purchase the property, lapsed into error when it found that no offer exceeded the contract price, taking into consideration the amount expended by the purchaser in improving the property. Equitable as such consideration may appear to be, it is adverse to the interests of the incompetent ward of the court.
Moreover, the record does not support the conclusion of the majority that the higher offers were the result of the improvements made by the purchaser.
Since the two members of the incompetent’s committee differed regarding the merits of the application, a special guardian should have been appointed to protect the interests of the incompetent.
*226Wenzel, Acting P. J., Beldock and Murphy, JJ., concur with Ughetta, J.; Kleineeld, J., dissents and votes to reverse the order and to remit the proceeding to the Special Term for further proceedings as indicated, with memorandum.
Order affirmed, with costs to the estate of the incompetent, payable by appellant personally.