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Among the matters contested before Mr. Hubbell was one which concerned the sum of about $12,000 received by Mr. Roosevelt for salary as president of the Elkhorn Valley Coal Lands Company since 1902. The incompetent had been president of that company, owning 1714 out of 3000 shares of its capital stock. On October 12, 1900, Mr. Notman wrote Mrs. Andrews as follows:

"The annual meeting of the stockholders passed off all right yesterday, and the board were re-elected. The meeting of the new directors, however, did not take place and was postponed until next Thursday, the 18th inst., at 11:30 a. m. Mr. F. E. Randall made a motion that the board of directors be permitted to create such a sinking fund as would, in their judgment, equal the decrease in the value of the capital stock caused by the exhaustion of the coal supply on the land of this company as it is mined out. The motion was voted down. The election of officers will come up at the directors' meeting next Thursday. Mr. Roosevelt expressed himself as desirous of assisting you in every way he can, but there was some indication of his hesitation to re-elect you for president in your present inability to get out, and Mr. Roosevelt states that he is willing to take the office of president for you and to turn over the salary to you pending your disability. This would solve the matter, I think, satisfactorily, and, of course, Mr. Roosevelt would consider your views on all questions the same as though you were actually president."

Mr. Roosevelt holds in his own name 210, and Mr. Devlin, of Mr. Notman's office, 14 shares, of said stock, concededly belonging to Mrs. Andrews, and each of said gentlemen has voted on such stock at several annual meetings since 1900. Regarding the retention of salary as president of the Elkhorn Valley Coal Lands Company, which Mr. Andrews claims should be refunded, with interest, Mr. Hubbell, the referee, reported July 19, 1907, as follows: That after the election of Mr. Roosevelt as president in 1902, down to and including September, 1903, Mrs. Andrews received each month Mr. Roosevelt's check for one-half of the amount of salary, and that from October, 1903, Mr. Roosevelt has received and retained the entire salary at the rate of $2,500 per year, and that Mr. Roosevelt was under no obligation to pay any part of said salary to Mrs. Andrews, and that "the duties of Mr. Roosevelt as president were not associated with his functions as committee in any such way as to impress any trust relation upon the moneys so received by him.” Referring to Mr. Notman's letter, the referee says:

"It does not appear that Mr. Notman had any authority to give such assurance. Even though he may have thought it was binding upon Mr. Roosevelt, It does not appear that there was any consideration proceeding from Mrs. Andrews at any time or from her committee to Mr. Roosevelt that required the return or payment of such salary to Mrs. Andrews' estate. The business of the company prospered under the administration of Mr. Roosevelt. Its dividends were increased.

There was no obligation on the part of Mr. Roosevelt because of his relation to the estate of his ward to undertake the administration of the affairs of the Elkhorn Company. The management of its affairs was entirely different and separate, and the salary earned by Mr. Roosevelt cannot be deemed in any sense extra compensation fixed by him without the intervention and approval of the court"—citing Matter of Fidelity Loan, Trust & Guar. Co., 23 Misc. Rep. 211, 51 N. Y. Supp. 1124.

In addition, it may be said that, when Mr. Roosevelt accepted Mr. Notman's suggestion, Mrs. Andrews had not been declared an incompetent, and it is fair to assume that all parties hoped and so believed

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and 140 New York State Reporter that within a reasonable time she would be restored to health. These hopes were not realized, and I see no good reason why Mr. Roosevelt should act as president indefinitely, and pay all his salary to the incompetent's estate. I doubt if any such agreement was contemplated when Mr. Notman wrote his letter upon which Mr. Roosevelt acted. The expenses incurred through these inharmonious relations should not be lost sight of. Nearly $700 has been expended on the coming in of the report of Mr. Hubbell, dated July 23, 1907. There was an appeal to the Appellate Division in Re Notman, 103 App. Div. 520, 93 N. Y. Supp. 82, as to the compensation of the committee of this estate. In the matter of the judicial settlement of the account in 1904 the expenses were nearly $2,600, and on the reference to modify order the expenses were nearly $300, and the estate may be subject to the allowances to counsel for Mr. Roosevelt, for Mrs. Roosevelt, for Mr. Andrews, and for the special guardian.

The death of Mr. John Notman was a public loss. Had he lived, it is probable that the lamentable conflicts in the execution of this trust would not exist. Their continuance is intolerable and the court is amply justified in exercising its power to end them. On the part of Mr. and Mrs. Roosevelt much opposition is manifested as to the continuance of Mr. Andrews as committee of the person of the incompetent. The proofs before me do not establish grounds for interference by the court with the lawful relations of Mr. and Mrs. Andrews as husband and wife, except as made necessary by her unfortunate malady. He is the natural custodian of her person, and is presumptively most deeply interested in her welfare and happiness. Extraordinary facts should be presented before the court will interfere with that relation whether one or the other becomes mentally unfit. The record here does not disclose any such extraordinary facts. If Mr. Andrews has lived (according to the judgment of Mr and Mrs. Roosevelt) extravagantly, depending latterly in the main upon his wife's income, his answer is that their mode of life has been within their joint income, and there are analogous cases which hold that such application of the income of an incompetent's estate is not improper. Benedict v. Sliter, 82 Hun, 190, 31 N. Y. Supp. 413; In re Heeney, 2 Barb. Ch. 326; In re Willoughby, 11 Paige, p. 257. A motion was made before me at part I in July 1907, for a modification of the order made by Mr. Justice Davis April 8, 1907, and for other relief. Reference thereon was made to Mr. Charles Bulkley Hubbell, who reported July 23, 1907, upon which report, on August 5, 1907, I directed the entry of an order for the payment to the committee of the person the sum of about $8,000, and reieree's stenographer's, and special guardian's fees amounting in all to about $700, leaving the other portions of said report and the other motions before me in this matter to be determined. Before his departure for Europe, Mr. Justice Davis'expressed his preference that the questions here involved be considered by any other judge, otherwise I should have asked their reference to him. The relation to and power of the court over the persons and estates of incompetents has been set forth by the late Charles P. Daly, chief justice of the court of common pleas, in the Matter of Colah, 3 Daly, 529, where the following language was used:

"It may be said in general terms in relation to the nature and extent of this jurisdiction that the care and custody of a lunatie and of his estate neces sarily imply both the right and the duty on the part of the court to do in respect to either whatever is most conducive to his interest; to see, in re spect to his person, that he is maintained as comfortably as his unfortunate situation will admit of and his pecuniary resources will allow, that everything is done that can be done by care, skill, and medical treatment to promote his general health, or which will or may contribute to the restoration of his reason. His interest is the chief consideration, and therefore great care has always been taken not to intrust the custody of his person or his estate to those who may be pecuniarily benefited by his death, or whose interest it is to keep the property from diminishing, unless the officer exercising the power is satisfied that it would be to the advantage of his bodily and mental condition that those who stand in the relation to him of blood and natural affection should have the custody and care of him. Nor will the interest of heirs or next of kin be at all considered in any outlay that may be made for his comfort or benefit, or in determining what is most conducive to his interest, either in the care of his person or in the management of his estate."

See, also, Matter of Owens, 5 Daly, 288, and Matter of Page, 7 Daly, 155.

These adjudications present a compendium of the law on this subject. More recent decisions are the Matter of Demelt, 27 Hun, 480, Matter of Osborn, 74 App. Div. 113, 77 N. Y. Supp. 423, and Matter of Arnold, 76 App. Div. 126, 78 N. Y. Supp. 772. I have twice visited Mrs. Andrews at The Knolls, once alone and once with Mr. Andrews. I have read the voluminous record in all the proceedings since the appointment of Messrs. Notman, Roosevelt, and Andrews, all the briefs of counsel and have heard them orally. All the parties in interest, including the incompetent and the special guardian, are before the court, and I am convinced that the appointment of a referee to report as to the person to be selected as the committee of the estate in the place of Messrs. Roosevelt and Andrews would involve useless time and expense, and that the provisions of section 2339 of the Code of Civil Procedure should be now invoked. In Re Cooper, 105 App. Div. 450, 94 N. Y. Supp. 270, controversy arose as to the appointment of the committee of the person. The incompetent was able “to decide upon the manner of living which gives him the greatest happiness and comfort.” The committee named was a stranger who was vigorously objected to by the relatives, and the court said:

"In view of all the conditions shown to exist, the interests of the parties, including the incompetent himself, will be best safeguarded by a thorough inquiry as to the qualifications of the different persons suggested and as to the verity of the allegations concerning them in the conflicting aflidavits.”

In the matter at bar Mr. Andrews' right to remain as committee of the person is, I think, incontestable. He desires to retire as one of the committee of the estate. In Disbrow v. Disbrow, 46 App. Div. 111, 61 N. Y. Supp. 614, affirmed 167 N. Y. 606, 60 N. E. 1110, the court cited May v. May, 167 U. S. 310, 17 Sup. Ct. 821, 42 L. Ed. 179, as follows:

"The power of a court of equity to remove a trustee and to substitute another in his place is incidental to its paramount duty to see that trusts are properly executed, and may properly be exercised whenever said state of mutual ill feeling growing out of his behavior exists between the trustees or between the trustee in question and the beneficiaries that his continuance in

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and 140 New York State Reporter ofice would be detrimental to the execution of the trust, even if for no other reason than that human infirmity would prevent the co-trustee or the bene ficiaries from working in harmony with him, and although charges of misconduct against him are either not made out or are greatly exaggerated."

And proceeded to say: “The evidence introduced upon the trial discloses that hostility to a marked degree exists between Griffin and George (the trustees) and also between Griffin and this plaintiff (the cestui que trust); and it is apparent that this feeling is such as to prevent the hearty co-operation between the two trustees which should be present in order that they may properly manage the property committed to them. To permit them to act as trustees would tend in no small degree to jeopardize the trust estate and to defeat the object of the trust."

This principle applies with peculiar force here. There is no claim that the finances of this estate have been mismanaged, or that it is not intact, but the trust is one which involves the care not only of the property but of the person of a helpless woman, whose few lucid moments should be freed from the disagreements of those appointed to provide for her comfort and welfare out of her own funds. If Mr. Andrews had not suggested his own retirement as committee of the estate, there would be no embarrassment in the removal of the surviving committee, for the reason that their relations are such as to render their cordial joint action out of the question. Mr. Roosevelt declines to voluntarily retire as conimittee on the ground that his doing so might be regarded as an aspersion. In substituting another in his place no reflection upon his character is intended, but his remaining tends to "defeat the object of the trust,” to wit, the promotion of the well-being, mentally and physically, of Mrs. Andrews, and, in my opinion, on the indubitable facts this would fail were Mr. Roosevelt committee of the estate and Mr. Andrews committee of the person. The latter being entitled to continue, it follows that the former should be retired. I have unsuccessfully endeavored to have the parties and their attorneys agree upon medical experts and the selection of a committee of the estate. Such failure and refusal emphasize the deplorable antagonisms among those who should be united in this humane task, and render plain the duty of the court. I am besought by the parties to allow a renewal of the lease of No. 737 Madison avenue because the premises contain furniture and effects of which Mrs. Andrews is fond, and their removal would distress and grieve her, as she speaks frequently of her intention to return.

Relying upon the opinions as to her incurability, it might seem grudent to store and insure these articles, thus saving the larger part of $3,500 rental per year. The incompetent is entitled, however, to have her income bestowed in such manner as will contribute to her happiness, and so on this slender intimation the committee of the person should renew said lease for one year on the same terms. In September next the substituted committee of the estate may apply to the court for further instructions in this regard. Messrs. Roosevelt and Devlin should transfer the stock of the Elkhorn Valley Coal Lands Company standing in their respective names belonging to the incompetent to the substituted committee of the estate, who will be authorized to vote upok such shares, together with the other shares of the stock of said com


pany belonging to the incompetent, aggregating 1,714 shares, as he shall deem for the best interests of the incompetent, and, in the event of his election as president of said company, he will be authorized to receive such salary as may be voted to such president in addition to his lawful commissions as such committee. I am informed that the Elkhorn Valley Coal Lands Company leased its lands in 1891 to the Empire Coal Company and to the Bottom Creek Coal Company for 30 years, by which leases or contracts it receives 10 cents per ton royalty each month, or a total royalty of about $36,000 per year. These contract leases have an unexpired term of about 14 years, and the yield of the coal mines, it is estimated, will continue about 40 years. The motion made by Mr. Randall at the stockholders' meeting of October 12, 1900, to wit, that a sinking fund be created in view of the possible exhaustion of the coal supply of the lands of said company, was an opportune business suggestion, all the more pertinent because of Mrs. Andrews' sad mental condition, requiring, in my opinion, the selection of a man not only for his integrity, but for executive business ability and experience, to serve as committee of this estate, who would give all the time requisite for its conservative conduct. A trust company, if appointed committee of the estate, could not, in the nature of things, be expected to give the detailed attention to its management as would an individual of the foregoing qualifications. To save the expense of another reference, Messrs. Roosevelt and Andrews will file their account since January 6, 1907, and obtain their discharge and the cancellation of their bonds, before me, within 10 days after the entry of the order hereon, at which time they will deliver to Sylvester J. O'Sullivan, Esq., who will be appointed the committee of the estate of the incompetent in the place of Messrs. Roosevelt and Andrews, all the property in their hands belonging to her, said substituted committee to furnish a bond in the sum of $400,000 to be approved by the court.

The order of April 8, 1907, above referred to, should be modified so as to provide that the present abode of Blanche L. Andrews at Dr. Flavius Packer's Sanitarium, Broadway and 261st street, New York City, be not changed without the further order of this court, and that until the further order of this court the visits to her by the committee of her person and her relatives and friends should be restricted to such persons and at such times as the physicians in charge of said sanitarium shall deem advisable and permit, and that said incompetent shall not be asked or urged to sign or copy written documents or letters of any. kind. The referee's report, dated July 19, 1907, in the matter of the settlement of the account of the committee of the estate to January 6, 1907, should be confirmed, the exceptions thereto being overruled. The report of the referee, dated July 23, 1907, in the matter of the application of the committee of the estate to pay certain bills, has been confirmed in part and an order entered thereon. The recommendation therein contained as to the payments to the committee of the person should be confirmed to the extent of $1,500 in each and every month so long as the income of the estate shall not fall below the sum of $22,000 annually, out of which sums so paid to the committee of the person he shall defray all the charges of any institution in which the said incompetent shall be placed, and also all expenses of whatever kind for her sup

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