
    Florence May Lane et al., by Guardian, Resp’ts, v. Franklin Moss et al., Ex’rs, Impl’d, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    Infants—Judgment affecting property of—Modification.
    A compromise of a contest over probate was effected by the adult parties by which the infant plaintiffs were to receive a certain proportion of the property. An action was brought by them to ratify and carry out such compromise in which a judgment to that effect was recovered, which also provided that the executor should pay a certain sum to the infants’ counsel for their services. In this action to modify said judgment it was alleged that the infants’ guardian was induced to sign the agreement by reason of a belief that the value of the estate was greater than it actually was and that the shares of the infants would be greater, and that the sum directed to be paid to counsel was exhorbilant. Held, that the complaint stated a good cause oí action; that there was no real controversy which resulted in said judgment and that the rights and interests of the infants were not protected, and hence they are entitled to relief.
    Appeal from judgment overruling demurrer to the complaint.
    
      Stephen D. Brague, for app’lts; Morgan & Ives, for resp’ts.
   Ingraham, J.

The complaint alleges that the plaintiffs are in- . fonts, and are heirs at law and next of kin of Maltby G. Lane, deceased; that the said Maltby G. Lane left a certain paper purporting to be his last will and testament, which was offered for probate, the probate of which was contested by these plaintiffs successfully, and a decree entered refusing probate; that subsequently another paper purporting to be a will was produced and offered for probate, and also contested by these plaintiffs; that subsequently a compromise was effected and agreed to by all the adults interested in the estate of said Lane, whereby these plaintiffs would each receive two-tenths of thy balance of the estate after making certain payments provided for, and to carry such compromise into effect an agreement was signed between the adults interested in the estate and by the two infant plaintiffs, by Marietta G. Lane, their mother. That subsequently an action was commenced in this court by these plaintiffs in order to ratify and carry the said agreement of compromise into effect, and that subsequently a decree was entered in such action ratifying and confirming said agreement, and directing the defendant Moss, as executor of the said Maltby G. Lane, deceased, to pay to the defendants Hastings and Curtis the sum of $26,000, it being provided in the agreement that that sum should be fixed as the value of the legal services rendered by said Hastings and Curtis as counsel for the said infants in the proceedings mentioned.

The complaint also alleges that the guardian ad litem of the infant defendants in this action, who signed the said agreement for the infants, was induced to sign the said agreement on behalf of the infants allowing the amount of the compensation of the said Hastings and Curtis by reason of her belief that the _ value of the property of the deceased was at least $500,000; that the debts and liabilities of the deceased did not exceed $225,000, in which case the shares of the said infants under said agreement would have been about $75,000 apiece; that the said share of the said infants would not amount to $15,000, and might not amount to over $4,000, and that the sum of $26,000 was an ex-horbitant and unreasonable charge, and that the value of such services were not worth the sum of $10,000.

The agreement signed by plaintiffs and thus ratified and affirmed by the judgment in such action recites the fact that the estate of the said Maltby Lane was deemed to be of the value of •$500,000 and was subject to an indebtedness of $225,000 and it may thus fairly be said that the agreement was executed upon the assumption that these facts were true, and that the amount to be paid to Hastings and Curtis for their services to the infants was based upon the facts that the infant’s share in the estate upon the basis of the settlement would amount to the sum of $50,000 apiece, and this sum of $26,000 was by the agreement to be paid out of the balance of the estate of which these plaintiffs were entitled to two-tenths.

The defendant Frank Moss as executor demurred on the ground that the complaint. does not state facts sufficient to constitute a cause of action.

The plaintiffs are infants and as such are wards of the court. The agreement made on their behalf by their mother was not binding upon them until ratified by the court, and where it appears that the judgment of the court has been obtained which ratifies an agreement made on behalf of infants based upon a false estimate of the interest of the infants in the property affected by the judgment and by it the infants’ property is applied to the payment of claims which are excessive and unjust, and the approval of the court to such payments has been obtained by such false statements, I think it clear that the court has jurisdiction to intervene and protect the infants so its judgment shall not be used to appropriate the infants’ property -to the payment of such unjust and exhorbitant claim§.

The rule is stated in the 12th American Encyclopedia, p. 144.

“A court of equity may interpose to grant relief where on account of some mistake of fact made by the judge or a party to the action an inequitable judgment has been rendered.” And this case would seem to come expressly within this provision.

While it is usual in such cases to make the application in the action in which the judgment was rendered, I can see no reason why the relief cannot be given by the same court in which the judgment is rendered by an independent action.

The demurrer is not upon the ground of a defect of parties, and that objection to the complaint is, therefore, waived.

I think, therefore, the complaint alleges a good cause of action against defendant, and that the demurrer was properly overruled, and the judgment appealed from must be affirmed, with costs, with leave to defendant to withdraw the demurrer, and answer over on payment of costs in this court and court below.

Van Brunt, P. J.

I concur. There was no real controversy which resulted in the judgment of this court, and consequently no binding adjudication. The rights and interests of the infants were in no wise protected, and hence they are entitled to relief.

O’Brien, J., concurs with presiding justice.  