SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
February 18, 1969
IN THE MATTER OF THE FINAL ACCOUNTING OF MARTHA MAKEL, COMMITTEE OF THE PERSON AND PROPERTY OF WILLIAM A. MAKEL. WILLIAM A. MAKEL, APPELLANT; MARTHA MAKEL ET AL., RESPONDENTS
Concur -- Stevens, P. J., Capozzoli, McGivern, Markewich and Macken, JJ.
Order entered April 10, 1968, confirming report of Special Referee, denying objectant's cross motion to disaffirm the same, and judicially settling and allowing committee's final account, is unanimously reversed on the law and in the exercise of discretion, without costs and without disbursements and the proceeding remanded to Special Term with the direction that a hearing be held, nunc pro tunc as of July 1, 1954, to determine the propriety of the order entered on that date whereby the committee was authorized to make payments out of the estate of her incompetent husband for her support. The Referee's report deals only with the propriety of the application made in 1954, and that was eminently proper. The order made on the application was, however, invalid for the court at that time neither appointed a guardian ad litem nor made any inquiry despite the patent adversity of the committee-wife to the interests of her incompetent husband, and in the face of the clear mandate of section 208 of the Civil Practice Act. Whether the wife was legally entitled to support payments out of the estate and, if so entitled, the proper amount to be paid, can only be determined after examination into the facts and circumstances which existed at the time the invalid order was obtained. A hearing must be had for that purpose. Since the objectant has been declared competent, no guardian ad litem need be appointed to protect his interests.
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