In re the Judicial Settlement of the Final Account of Lyon

Appeal from so much of a decree of the Supreme Court of Westchester county as awards a committee of an incompetent person commissions on the value of the incompetent’s real estate. • Decree judicially settling the account of the committee of the incompetent, in so far as appealed from, affirmed, with costs to respondents, payable out of the estate. No opinion. Hagarty, Johnston, and Close JJ., concur; Carswell and Taylor, JJ., dissent and vote to reverse the decree, in so far as appealed from, with the following memorandum: As matter of law the real estate of the incompetent was never reeeiyed and, therefore, could not be and was not distributed or delivered by the committee within the purview of Surrogate’s Court Act, section 285, subdivision 5, made applicable here by Civil Practice Act, section 1376. That real estate stood in the name of the incompetent. Upon her death it passed by operation of law directly to her heirs. Therefore, its value, when ascertained, may not be made the basis of an award of commissions under the statutory provisions referred to. (Matter of Salomon, 252 N. Y. 381, 383; Matter of Runk, 181 App. Div. 461,464; Matter of McCarthy, 145 Misc. 556.)