In the Matter of the Application of Sidney J. Cowen, as Committee of the Person and Estate of Mary Ann Dunn, a Person of Unsound Mind, Appellant, for the Removal of Carrie B. Cawley, as Administratrix with the Will Annexed of Ellen L. Dunn, Deceased, Respondent

In the Matter of the Application of Sidney J. Cowen, as Committee of the Person and Estate of Mary Ann Dunn, a Person of Unsound Mind, Appellant, for the Removal of Carrie B. Cawley, as Administratrix with the Will Annexed of Ellen L. Dunn, Deceased, Respondent. Collection by an administrator of rent belonging to an incompetent — the payment over thereof should not await an annual accounting. An administratrix who collects rents, one-half of which belong to an incompetent person, should pay over such one-hal£ to the committee of the incompetent as the rents accrue, and cannot require the committee to wait for such payment until the aunual accounts of the administratrix have been passed by‘the surrogate. Appeal by the petitioner, Sidney J. Cowen, as committee of the person and estate of Mary Ann Dunn, a person of unsound mind, from an order of the Surrogate’s Court of Rew York county, entered in said Surrogate’s Court on the 17th day of March, 1905, denying the petitioner’s application for the removal of Carrie B. Cawley, as administratrix with the will annexed of Ellen L. Dunn, deceased. Alfred B. Jaworower, for the appellant. John V. Judge, for the respondent. [MAJORITY — Patterson, J.:] Patterson, J.: Sidney J. Cowen, as committee of the person and estate of Mary Ann Dunn, an incompetent, presented his petition to the Surrogate’s Court of the county of New York, praying for the removal of Carrie B. Cawley, as administratrix witli the will annexed of Ellen L. Dunn, the mother of the incompetent person. The ground upon which the application for the removal was sought is that for a long time the administratrix refused to pay to the petitioner one-half of the rents of certain premises which belonged to the incompetent, and that after various warnings and demands she persisted in her refusal to pay over those rents as and when they were collected. It appears that the administratrix has insisted upon annual accountings before she would make payments as demanded by the committee. It was declared by the presiding justice of this court, in 1897, that this administratrix had no right to put the lunatic’s estate to the expense of an accounting each year in order that her committee should get that which belonged to her and which is necessary for her support, and, notwithstanding that intimation, the administratrix has still persisted in her course. In answer to the application of the committee, the administratrix set forth facts which, as she says, impelled her in what she considered to be the performance of her duty to insist upon accountings before she made payments to the committee, and it appears that those facts were not before the presiding justice of this court when the remarks above referred to were made by him. The learned surrogate denied the motion to remove the administratrix and was seemingly impressed with the belief that she wás acting honestly and conscientiously and that no cause existed for her removal. On an examination of the whole record we are not disposed to interfere with the decision of the surrogate inasmuch as the administratrix seems to have satisfied him that her action in insisting upon annual accountings was for her own protection and in view of what are disclosed to be very strained relations between the committee and herself. It is manifest, however, that the administratrix is bound to pay over to the committee the proportion of the rents of the premises to which his ward is entitled, and he is not compelled to wait from year to year to receive the money with which to provide for the support of his ward or until the surrogate has passed upon the administratrix’s accounts. The order appealed from should be affirmed, without costs and without prejudice to the right of the committee to again apply for the removal of the administratrix if. she still further persists in detaining from him the moneys to which he is entitled as they accrue. O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred. Order affirmed, without costs, without prejudice to renewal of application as stated in opinion.