
    Second Department,
    November, 1926.
    Brooklyn Children’s Aid Society, Appellant, v. Thomas F. Mein and Others, Respondents, Impleaded with Others, Defendants.
    
      Wills — action to set aside decree entered in 1903 construing will — action is based on alleged shrinkage of estate resulting in inequitable division — inequity not shown — contingency in question has not happened — decree sought to be modified may be entered on consent.
    
    Appeal from a judgment of the Supreme Court, entered in the Kings county clerk’s office on January 11, 1926, upon the decision of the court, after a trial at the New York Special Term, dismissing the complaint upon the merits.
    Judgment unanimously affirmed, with costs, on the opinion of Mr. Justice Cropsey at Special Term. Present — Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ.
    The following is the opinion of the court below:
   Cropsey, J.

Plaintiff seeks to modify or set aside the decree of this court entered over twenty years ago construing a will and providing the amount which should be paid to specified persons upon a named contingency. The sole basis of the attempt is that the estate has shrunk since said determination and that it would be inequitable to make the division fixed by the former decree. I do not see any such lack of equity. Moreover, the contingency in question has not happened and when it does the situation may be very different and the estate may have increased in size. But, regardless of the foregoing, the decree sought to be modified may be entered upon the consent of all the parties to that action, as it recites, and this plaintiff was one of them. It cannot now maintain this action even if the court has jurisdiction. Judgment for defendant, with costs. Settle findings and judgment on notice.  