In re Flagler

• Decision Date: 21 June 1928
• Citation: 248 N.Y. 415,162 N.E. 471
• Parties: In re FLAGLER. In re MOHR.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 415

162 N.E. 471

In re FLAGLER.

In re MOHR.

Court of Appeals of New York.

June 21, 1928.

Application by Martha M. Mohr for allowance from the surplus income of Ida A. Flagler, an incompetent person. Order of the Supreme Court at Special Term (130 Misc. Rep. 375, 224 N. Y. S. 30), confirming the report of the referee, and directing payment to petitioner of a yearly allowance, was modified by the Appellate Division (223 App. Div. 1, 227 N. Y. S. 318), and petitioner appeals.

Modified and affirmed.

See, also, 126 Misc. Rep. 764, 214 N. Y. S. 631; 131 Misc. Rep. 430, 226 N. Y. S. 38.

Andrews, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Emmanuel Lewin, of New York City, for appellant.

De Lancey Nicoll, Raymond D. Thurber, and Gerald Donovan, all of New York City, for respondents Cornelius J. Sullivan and others.

John G. Agar, Alfred Ely and Charles S. Ernst, all of New York City, for respondents Charles J. Shourds and others.

LEHMAN, J.

Ida A. Flagler, the incompetent, is a widow, 78 years of age. She has no descendants. She is incurably insane. Her estate, as shown by the account of her committee, filed February 21, 1927, is valued at more than $11,000,000 and her annual income is not far from $500,000. The most liberal provision for her benefit, comfort, or enjoyment cannot conceivably call for the expenditure of more than a fraction of her income.

The petitioner, Martha M. Mohr, is a second cousin of the incompetent, Mrs. Flagler. Mrs. Flagler's mother and her grandmother were sisters. She is married and has an adopted child. Both she and her husband are now in middle age and not in good health. They have always lived modestly and worked hard. Their earning capacity has always been small. Advancing years and ill health have now reduced it. The husband is out of work. The wife is earning $15 per week. They have no other means of support.

When they were more prosperous they managed to buy a small home on the installment plan, saving the money necessary to meet the payments as they came due. Now there are unpaid taxes upon the house of $108 and assessmentsof $200. The roof of the house must be replaced by order of the town authorities, at a cost of $500. Other repairs are necessary to preserve the house from rapid decay. Coal bills, doctor's bills, and repair bills are unpaid and Mrs. Mohr has no means of paying them. Misfortune has brought them to want.

These facts were fully established by sufficient evidence upon a reference. The learned referee reported that upon the evidence he was satisfied that, if Mrs. Flagler were now competent and the condition of the petitioner were now presented to her, she would grant the petition of Mrs. Mohr to be relieved of her distress. The Supreme Court at Special Term, upon the referee's report, has ordered the committee of the incompetent to pay to the petitioner an allowance at the rate of $30 per week, and the further sum of $700 for unpaid taxes, assessments, interest on the mortgage on petitioner's house, and for necessary repairs.

The Appellate Division has held that such allowances may not be made by the court. Convincing proof must be given, it is said, beyond the affluence of the incompetent's estate and the necessities of the applicant, that the incompetent person, if sane, would make the allowance asked for, to justify the court in making the allowance. Here it has been held that such proof has not been given.

If Mrs. Flagler to-day could decide upon the disposition of the income of her great estate, moral or charitable considerations would dictate her decision only to the extent that she felt their force. Her great affluence might impel her to relieve the distress of her cousin; the law would not compel her to do so if she decided otherwise. The power of the court to dispose of her income is not plenary. The court may not be moved by its own generous impulses in the disposition of the income of the incompetent. In reaching decision it may give to moral or charitable considerations only such weight as it finds that the incompetent herself would have given to them. Allowances for the support of collateral relatives of the incompetent have been made ‘upon the theory that the lunatic would, in all probability, have made such payments if he had been of sound mind.’ Matter of Lord, 227 N. Y. 145, 124 N. E. 727. The Appellate Division correctly held that the allowance made at Special Term may be justified upon no other therory. Upon an examination of the record we find that the evidece leads logically to the conclusion that Mrs. Flagler, if sane, would to-day provide some relief for the petitioner.

Conflicting inferences may be drawn...