#### New York Life Insurance and Trust Company, as Executor and Trustee under the Last Will and Testament of Sarah B. Conkling, Deceased, Respondent, *v.*Nathaniel W. Conkling, Appellant, Impleaded with Paulina Feodora von Ohnesorge and Others, Respondents, and Gardner M. Peck and Others, Defendants.

First Department,

December 5, 1913.

Trust — authority of court of equity to permit compromise of claims against trust estate.

A testatrix died leaving her husband and three adult children, her only heirs at law and next of kin. She gave her residuary estate, consisting of both real and personal property, in trust, with directions to divide the same into three equal parts and pay the income from one of the parts to each child during life, and upon the death of any child to pay over the principal set apart for said child to his or her issue, and if none, then to the surviving children, or them issue. The will contained no provisions in favor of the husband. Shortly after the probate of the will and issuance of letters testamentary to the trustee, the husband asserted title to the property, claiming that it equitably belonged to him. It appeared that the property in question had been conveyed by the husband to the testatrix, and that there might be some merit in his claim. Thereupon the children and the husband, in order to avoid expensive litigation, and to preserve the trust estate, entered into a compromise in writing, whereby they agreed, subject to the approval of the court, that the trustee should hold one-fourth of the residuary estate in trust and pay over the income to the husband for life, and upon his death such part should become a part of the residuary estate and be disposed of as directed in the will. This agreement was confirmed by the court in an action in which the children and the trustee answered, submitting them rights and interests to the protection of the court, and payments were made to the husband thereunder. Thereupon one of the children died and the grandchildren becoming entitled to a share of the residuary estate claimed that their rights should be determined by the will itself, and that the agreement and confirmation thereof were invalid. Thereupon the trustee brought this action for an accounting and instructions.

*Held,*that the court had power to permit the compromise of claims against the trust estate, and that the trustee should be directed to carry out the terms of the agreement as confirmed.

Appeal by the defendant, Nathaniel W. Conkling, from part of a judgment of the Supreme Court in favor of the plain*338tiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 11th day of March, 1913, upon the report of a referee.

*Herbert Parsons,*for the appellant.

*Grenville T. Emmet,*for the respondent New York Life Insurance and Trust Company.

*Manton M. Wyvell,*guardian ad litem, for the respondent Paulina Feodora von Ohnesorge.

*Frederick W. Stelle,*guardian ad litem, for the respondents Pauline Burleigh Conkling and Natalie Burleigh Conkling.

*Charles K. Carpenter,*guardian ad litem, for the respondents Natalie A. Caldwell and James A. Caldwell.

*Joseph Atz,*for the respondent Peck.

McLaughlin, J.:

Sarah B. Conkling died on the 21st of February, 1904, leaving her surviving, as her only heirs at law and next of kin, her husband and three adult children. She left a will, by which she gave her residuary estate, consisting of both real and personal property of the approximate value of $500,000, in trust to this plaintiff, with directions to divide the same into three equal parts and pay the income from one of the parts to each child during life, and upon the death of any child to pay over the principal set apart for such child to his or her issue, if any there were, and if none, then to the surviving children or their issue. The will contained no provisions whatever in favor of the husband. It was admitted to probate and letters testamentary issued to this plaintiff, which was the sole executor and trustee named therein.

Shortly thereafter the husband, this appellant, made a claim in his own behalf to substantially the whole of the testatrix’s estate, asserting that the title to the property, while standing in the name of his wife at the time of her death, equitably belonged to him. Counsel retained by the children, after a careful investigation, became satisfied that there might be a *339basis for the claim, since practically the whole of the real and personal estate of the testatrix had been in the possession of the husband and been, by him, conveyed and turned over to her. The situation thus presented gave the children no little concern, and well it might, as they were confronted with prospective litigation which might be long continued, expensive, and finally result in depriving them of the whole or a greater part of the residuary estate, which the appellant did not want to do. To avoid such result, he and his three children, on the 28th of April, 1904 (he was' then sixty-eight years of age), entered into an agreement in writing whereby they agreed, subject to the approval of a court of competent jurisdiction, that the trustee under the will should hold an equal one-fourth part of the residuary estate in trust and pay over the income therefrom to him during his life, and upon his death such one-fourth should become and be a part of the residuary estate of the testatrix and thus be disposed of as directed in her will. Immediately following the execution of the agreement the three children commenced an action in the Supreme Court against the appellant, the trustee named in the will, and all the then living grandchildren. The judgment demanded was that the agreement be ratified and confirmed. In the answer interposed by the appellant he asserted that the estate equitably belonged to him; that it was received by the testatrix from, and she was to hold the same for him; that he had claimed, up to the time the agreement was executed, and still claimed, the same should be returned to him by her executor; that he had no wish to deprive his children and their issue of the estate if reasonable provision were made for him during his life; and for that reason he joined in the agreement and united with the plaintiffs in asking that judgment be rendered as prayed for in the complaint. The answers interposed by the infants submitted their rights to the protection of the court and asked it to grant such relief, if any, to the defendant as might be just and proper. The New York Life Insurance and Trust Company also answered, stating that it had no knowledge or information sufficient to form a belief as to the allegations of the appellant’s claim and, therefore, submitted its rights and interests to the protection of the court.

*340Upon the issues thus formed the case came on for trial, at the conclusion of which judgment was rendered as prayed for by the plaintiffs and this appellant; in other words, the judgment ratified and confirmed the' agreement and directed the trustee to invest one-fourth of the residuary estate, pay the income derived therefrom to the appellant during his life, and upon his death the same should become and be held by the trustee as a part of the residuary estate of the testatrix. The judgment, which was entered on the 6th of July, 1904, also directed the appellant to execute a general release, which he did, to the children of the testatrix, her estate, the New York Life Insurance and Trust Company as executor and trustee, and the issue of children born and to be born.

In December, 1906, the plaintiff’s accounts as executor were finally settled by a decree in the Surrogate’s Court in a proceeding in which all of the then living grandchildren appeared and the executor was directed to turn over the residuary estate to itself as trustee and hold the same subject to the terms of the will and of the judgment. The terms of the judgment were carried out and no question raised in regal'd to the appellant’s right to receive, by virtue of it and the agreement, the income from one-fourth of the residuary estate until July, 1910, when one of the children of the testatrix died leaving issue. The issue of such deceased child thereupon became entitled to a share of the residuary estate, and the claim was then made on the part of the grandchildren that such share must be determined by the will itself and that the agreement and judgment were invalid. Thereupon the trustee brought this action for an accounting and instructions. The living grandchildren, two of whom were born since the judgment was entered in the former action, appeared by guardians *ad litem*and asked to have the agreement and judgment set aside. The court sent the matter to a referee to hear and determine and he reported in favor of the grandchildren’s contention. Judgment was thereupon entered declaring the agreement void, directing the trustee to disregard the provisions of the former judgment, also the surrogate’s decree, and to dispose of the residuary estate in accordance with the terms of the will, and that a judgment for $2,000 be entered *341against the appellant in favor of the surviving’ issue of the testatrix’s deceased child as being their portion of the income theretofore paid to the appellant.

The conclusion reached by the referee, it seems to me, was based upon an erroneous conception as to the power of a court of equity to permit compromise to be made of claims against a trust estate. That the court has such power cannot be doubted. It has been exercised from the very earliest time, and so far as I have been able to discover has never before been seriously questioned. It necessarily exists by reason of the jurisdiction which such court exercises over trustees. This was clearly pointed out by Lord Justice Turner in *Brooke*v. *Lord Mostyn*(67 Eng. Ch. [2 De G., J. &S.] 373). He said, referring to the power of the court in this respect: “ In the exercise of that jurisdiction the court may, in general, order the trustees to deal with the trust property in whatever mode it may consider to be for the benefit of the *cestuis que trust*Who are infants or under disabilities; and to say that *cestuis que trust*can, except under very special circumstances, undo what the court has ordered to be done, would be to cut away the root of the jurisdiction. I have thought it right to make these observations because I consider it of great importance that no doubt should be cast upon this power of the court or upon the validity of acts done in the fair and *bona fide*exercise of it. The rights of infants and incapacitated persons must, in many cases, be sacrificed if the power be not maintained and acts which have been done under it cannot be disturbed without property, to a great amount, being affected by the disturbances. These considerations are, of themselves, sufficient to show that it is not upon any light grounds that such a compromise * * * ought to be disturbed, but there is a further consideration which leads to the same conclusion. Such compromises as these are made by the court in the exercise of its discretion, and it is not the habit of the court to disturb what has been done by the court in the exercise of discretion, except upon very strong grounds.”

The court having this power, it follows that it had jurisdiction both of the persons and subject-matter in the action brought to approve the settlement. The subject-matter was *342the agreement, that is, the proposed compromise, which was not to become effective unless approved by a court of competent jurisdiction. It is true that two grandchildren of the testatrix, parties to this action, were born since the judgment of compromise was entered, but their interest in the trust estate is precisely similar to that of the other grandchildren, who were parties to the action. These two infants are bound, therefore, to the same extent as the others. *(Tonnele*v. *Wetmore,*195 N. Y. 436; *Downey v. Seib,*185 id. 427; *Kent*v. *Church of St. Michael,*136 id. 10.)

The compromise agreement had for its object, not the destruction of the trust, but its preservation. This distinguishes the case from *Cuthbert*v. *Chauvet*(136 N. Y. 326), upon which the referee mainly relied. There the compromise agreement which was held invalid was not entered into for the purpose of effectuating, as far as possible, the trust created, but to entirely destroy it. Here, in confirming the agreement and directing the trustee to abide by it, the court decided, after hearing the evidence bearing upon the subject, that it was for the best interest of the estate that it should be carried out. Whether it were a proper agreement to make was an issue triable in the action, and if the court erred in its determination of the question, such error could be corrected by an appeal, otherwise the judgment entered became final and conclusive upon the parties, and cannot, in the absence of fraud, be questioned by any of them. It is not claimed, or even suggested, but what all of the parties to the agreement acted in perfect good faith, or that the judgment was the result of any fraud practiced upon the court. It cannot well be because all of the facts were laid before the court. Nothing was kept back or concealed.

The question as to the binding force of a judgment was considered in *O’Donoghue*v. *Boies*(159 N. Y. 87). There it appeared that the court in an action for partition had directed the sale of real property devised to an infant in contravention of the terms of a will and of the express provisions of the statute. (2 R. S. 195, § 176; now Code Oiv. Proc. § 2357.) There was a difference of opinion between the judges of the Court of Appeals as to whether the partition judgment were open to a *343subsequent attack by an infant on the ground that it was entered without jurisdiction, since the statute expressly forbade the sale. Chief Judge Parker, with whom two other members concurred, held that it did not, and that view has since been adopted in *O’Donaghue*v. *Smith*(184 N. Y. 365). (See, also, *Tonnele*v. *Wetmore, supra.)*

To hold, as the referee did, that the court did not have jurisdiction to render the judgment is, under the facts presented, equivalent to holding that the court did not have power to permit a compromise to the end that a trust estate might, in part at least, be preserved.

Look at the situation, a claim asserted which, if established, would require for its satisfaction substantially all of the property given in trust. Can it be seriously doubted, if the appellant’s claim had been compromised by turning over to him one-fourth of the estate, and such compromise had been approved by a judgment of the Supreme Court, that all of the parties, including the infants, would have been conclusively bound by the judgment? Obviously not. In that case the trust estate would have been depleted to the extent of one-fourth. But the court never hesitates to exercise its equitable powers in directing a trustee to use a portion of the trust property, if it becomes necessary, in order to protect the balance. Thus it has been held that a testamentary trustee may be authorized to mortgage real property held by him for the purpose of paying off taxes thereon *(United States Trust Co.*v. *Roche,*116 N. Y. 120); also to use a portion of the trust estate in repairing a building. *(Matter of Deckelmann,*84 Hun, 476.)

Besides, the compromise agreement was the result of a family settlement, which especially commends itself to a court of equity. (12 Am. & Eng. Ency. of Law [2d ed.], 875.)

It is at least doubtful whether the appellant, by reason of the releases and the lapse of time, could be restored to his former position, and it certainly would be very unjust to him if he could not to deprive him of the benefits obtained by the judgment.

The judgment, in so far as appealed from, therefore, is reversed and the trustees directed to carry out the terms of the former judgment by paying to the appellant the income from *344the fund (one-fourth of the residuary estate of the testatrix, set apart for his benefit, with costs to the appellant payable out of the trust estate.

Ingraham, P. J., Laughltn, Clarke and Scott, JJ., concurred.

Judgment reversed and trustees directed to proceed as indicated in opinion, with costs to appellant payable out of the trust estate. Order to be settled on notice.