
    Henry W. T. Steinway, Respondent, v. Charles H. Steinway and Others, as Executors, etc., of William Steinway, Deceased, and Others, Appellants.
    
      Will —family settlement agreeing to carry out its provisions — action by an heir who has executed it, in disregard of the settlement — effect of the receipt of property to which a beneficiary is entitled, upon his right to repudiate am. invalid trust.
    
    An heir at law of a testator, in furtherance of the testator’s intention as expressed in the will, joined with the other heirs in a family settlement, confirmed by a written agreement authorizing the executors of the testator to close up and distribute the estate in accordance with the terms of the will, and, upon the final distribution of the estate pursuant to such agreement, received the share to which he was entitled under the provisions of the will; and, “ as one of said testator’s testamentary heirs at law,” released the executors under seal, from any further claim against them as such, the other beneficiaries under the will and the executors having acted upon the faith of such agreement, and the executors having, in consideration of the premises, released their claim to commissions from the estate.
    
      Held, that such heir at law could not thereafter maintain an action in equity to set aside as invalid a trust created by the will.
    
      Semble, that the fact that a residuary legatee under a will has received from the executor the share to which he was entitled, does not deprive him of the right to insist in a court of equity upon tlie invaliditj' of a trust in personalty created hy the will. In such a case the executor becomes a trustee of the personalty, sought to be included in the invalid trust, for the residuary legatees or next of kin.
    Appeal by the defendants, Charles II. Steinway and others, as executors, etc., of William Steinway, deceased, and others, from aiinal judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term, and also from an interlocutory judgment in favor of the plaintiff, entered in said clerk’s office on the 27th day of March, 1895, upon the decision of the court rendered after a trial at the New York Special Term.
    The will of Christian F. T. Stein way, referred to in the opinion, by its 33d clause bequeathed 4,000 shares owned by him in the corporation of Steinway & Sons of the city of New York, to his executors, in trust, to be managed by them until the 1st of January, 1904, and directed that the executors pay the annual income to the extent of five per cent on the amount of such shares to certain legatees, a brother and the representatives of the testator’s other brother and of his sisters, the executors themselves to retain any excess of such income above five per cent as compensation for their services, and that they pay over on January 1,1904, the legacies in full to the legatees named.
    The plaintiff in this action, who is one of the beneficiaries under the trust, seeks to set aside the said clause which gives him one-.twelfth of the 4,000 shares as direct legatee, and claims one-ninth as a residuary legatee.
    
      G. W. Cotterill, for the appellants.
    
      E. B. Hill, for the respondent.
   Patterson, J. :

In the view we take of this cause it is unnecessary to pass upon the question of the validity of the trust created by the 33d clause of the will of Christian F. T. Steinway. At the threshold of the case there is an insurmountable obstacle to the maintenance of the action by the plaintiff. In our opinion he has no standing in court to wage the contest. It is set up as an affirmative defense that the executors of the will have paid all the debts and pecuniary legacies and made distribution of the property as required by its terms; that they have relinquished their commissions to the estate in a large sum, to which commissions they were entitled by law; that in consideration of such relinquishment and other good and valuable considerations, the plaintiff by an instrument in writing, under his hand and seal, quitclaimed and forever released the executors and the estate of the testator from all claims and demands of himself and his heirs or administrators. It is further set up in the answer that the will of Mr. Christian E. T. Stein way was duly admitted to probate; that appraisers were appointed of the estate for the purpose of ascertaining the amount of the collateral inheritance tax; that the amount of the tax to be paid on the legacies, including the 4,000 shares of stock mentioned in the 33d clause of the will, was paid with the knowledge and acquiescence of the plaintiff ; that the shares of stock mentioned in that clause of the will were divided and set apart to and for the use and benefit of the several legatees, one of whom was the plaintiff, agreeably to the terms of the will, with plaintiff’s knowledge and acquiescence; and that the dividends thereon have been paid to the legatees to the amount mentioned in that clause of the will, and the excess of income has been retained by the executors as provided for in the will, ever since the time of the probate and down to the time of the commencement of this action ; and, further, that at a meeting of the stockholders of the corporation which issued the 4,000 shares of stock mentioned in' such clause of the will, called for the purpose of increasing the capital stock, such capital stock was increased and the 4,000 shares mentioned in that clause of the will were represented in the proportions as bequeathed in said will, and that to the several legatees (including the plaintiff) and their representatives entitled to participate in the increase, “ there was allotted their proportions of the increase in said capital stock agreeably to said will, amounting to 1,333 shares, and they respectively subscribed and paid for their proportions of said stock,” amounting in the aggregate to the sum of $133,000 or thereabouts, and the said stock was issued to them accordingly; and that all this was done with the knowledge and consent of the plaintiff herein. All these facts set up in the answer as affirmative defenses were fully proven. The plaintiff was entitled to a legacy, independently of the 33d clause, under the will of Hr. Christian F. T. Steinway, and received and receipted for such legacy.

■Under these circumstances, the contention is made by the defendants that the plaintiff has no standing in court to maintain this action. That contention it based primarily upon the theory that, having received his legacy, he cannot maintain an action of this character without making restitution of that which he has received. There was authority for that position in the case of Ohipman v. Montgomery (63 N. Y. 221). In the opinion of the court therein that proposition is distinctly stated, but that case seems to be no longer controlling on that point. In Wager v. Wager (89 N. Y. 161) the Court of Appeals said that Ghipman v. Montgomery {supra) was decided on the special facts of the case, and that there were rulings in that opinion which the court would not follow. In Head v. Williams (125 N. Y. 560) and Underwood v. Gurtis (127 id. 523) the court distinguished the case first cited, and announced the rule that, where there was an invalid trust of personalty created by will, the executors became the trustees of a resulting trust of that personalty for the residuary legatees or next of kin; that jurisdiction resides in a court of equity to enforce that trust in favor of the residuary legatee or next of kin, and for the benefit of the person who is entitled to the property freed from the void testamentary trust. Hence, any one who would be the owner of the property would be entitled to the enforcement of that trust; and the mere fact that he had received something else under the will would not, deprive him of his ownership or of his right.

But that does not dispose of the question of the plaintiff’s ability to maintain a suit in equity. He can only stand in court in the same way that any other person seeking equitable relief on any other ground of equitable jurisdiction might stand.

It appears in this case that all the parties interested under the will of Mr. Christian F. T. Steinway came together for the purpose of malting what may be called a family settlement. They all desired that the testator’s intention, as expressed in the will, should be carried out; to that end an agreement was signed, dated April 6,1891, which recited, among other things, that it was very desirable that the estate of C. F. Theodore Steinway should be closed up and the assets finally distributed and paid over to the heirs at law according to the terms of the deceased’s last will and testament, and it provided, “ we * * * consent and authorize the executors of the said estate to close up same and make the final distribution to the heirs at law as directed in deceased’s will,” and they separately bound themselves to give a final receipt in duplicate to such executors on receiving from them such share as was provided in said will. That agreement was signed by all the persons who were entitled under the will, and under it the executors acted aud closed up the whole estate, making the payments as required by the will, and thereafter, and on October 1, 1891, this plaintiff executed a release, under seal, to the executors, in which he acknowledged the receipt of all he was entitled to under the disposition made by the testator of his property. The release states that the plaintiff does “ hereby quitclaim to and forever release said executors and said estate from any further claim whatsoever of and by myself, my heirs, executors or administrators, as such heir at law.” The inference is sought to be drawn that he merely released what interest in the estate he would be entitled to technically as heir at law; but that claim is not admissible, for the reason that in the same release what he means by the words “heir at law” is declared, he describes himself as being “ one of said testator’s testamentary heirs at law.” Therefore, there is an agreement of settlement of the estate in accordance with the terms of the will, and to carry out the intention of the testator there is the action of the executors based on that agreement ; there is the full settlement of the estate, and in the final distribution by the executors, pursuant to the agreement, there was given the release, under seal, of the plaintiff, not only of the executors, but of the estate, from any further claim. Besides that, there is the distinct proof that the other beneficiaries under the will and the executors have acted upon that which was done by the plaintiff with them; the executors have relinquished their large commissions in favor of the plaintiff and of the other legatees, and such other-legatees have actually expended moneys and gone into the recapitalization of the Steinway Company, upon the basis of the distribution made to them and the shares acquired by them under the will, and in pursuance of the agreement and of the release which the plaintiff gave. Under such circumstances, the plaintiff has no standing in a court of equity to do that which, in effect, would he setting aside the whole of this family arrangement and reopening that which has been settled, adjusted and ended by his consent and at his procurement.

It is claimed that the case of Brewster v. Striker (2 N. Y. 19) is an authority contrary to the views we have here expressed. In that case it was held that certain acts of a party by way of admissions, and the acceptance of releases, in a partition suit, of the rights of other parties to the action to property set apart to him in severalty, did not constitute an estoppel, because they were not admissions of fact, but of conclusions of law. But this case is entirely different from that. It is altogether immaterial whether the preclusion of the plaintiff from maintaining the action is called an estoppel or anything else. The point is, that with all that he has done and the consequences of all that he has done, he has no place in a court of equity to attempt to undo by this action that to which he has bound himself and induced others to become bound. There is no question of a supreme public policy involved. The courts will declare unlawful suspensions of the absolute ownership of personal property to be void, whenever their action is properly invoked, but they will not entertain suits merely to defeat family arrangements and agreements at the invitation of a person who has reaped the benefit of such an arrangement, has solemnly abandoned his right to make a contest, and by his acts has put others in a position in which injustice and wrong would result to them if the agreed settlement were to be disturbed or interfered with.

For these reasons we are of the opinion that the judgment appealed from should be reversed and the complaint dismissed, with costs.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and complaint dismissed, with costs.  