
    (March 17, 1942.)
    DECISION — ORDER
    Handed down March 17th, 1942.
    At a Term of the Appellate Division of the Supreme Court of the State of New York held in and for the Third Judicial Department in the Albany County Courthouse in the City of Albany on the 17th day of March, 1942.
    PRESENT: HON. JAMES P. HILL,
    Presiding Justice,
    HON. JOHN C. CRAPSER,
    HON. CHRISTOPHER J. HEFFERNAN, HON. GILBERT V. SCHENCK,
    HON. SYDNEY F. FOSTER,
    Associate Justices.
    In the Matter of The Estate of Roland V. Kathan, Deceased.  In the Matter of the Application of Lucy K. Jenkins and Frank E. Kathan, to set aside waivers and open the decree admitting the Will to probate in the Estate of Roland V. Kathan, Deceased. In the Matter of the Application of Lucy K. Jenkins and Frank E. Kathan, for an order vacating and setting aside the order of the Surrogate of Schenectady County dated June 21, 1939, in the Estate of Roland V. Kathan, Deceased. Lucy K. Jenkins and Frank E. Kathan, Appellants; Norman D. Kathan, as Executor under the Last Will and Testament of Roland V. Kathan, Deceased, Petitioner; Harry G. Coplon, Special Guardian.
    
      
       See 262 App. Div. 585.— [Rep.
    
   An appeal having been taken to this Court by Lucy K. Jenkins and Frank E. Kathan from the order and decree of the Surrogate’s Court of Schenectady County, entered in the office of the clerk of said Court on January 6th, 1941, denying the application of said Appellants to vacate and set aside the order and decree of said Surrogate’s Court dated June 21st, 1939, and to permit them to reopen the proceedings to set aside waivers of citation and to open the decree admitting to probate the Will of Roland Y. Kathan, Deceased, and said appeal having come on to be heard before this Court at the November 1941 Term and this Court having referred the matters involved in said proceeding and the appeal therein to Honorable Charles B. Sears, Official Referee, to receive any further or documentary evidence which the parties may desire to oiler on all issues presented in said proceeding and appeal, and an order of this Court having been entered on January 26th, 1942, upon stipulation of the parties to said appeal, remitting said proceeding to the Surrogate’s Court of the County of Schenectady for the purpose of entertaining and acting upon an application for the approval of an agreement of compromise and settlement entered into between all the parties in said proceeding, and in the event of the disapproval thereof by the Surrogate’s Court of the County of Schenectady or failure of consummation, that said proceeding and appeal be remitted and returned to this Court for further proceedings therein as directed by this Court, and an agreement of compromise and settlement having been executed and acknowledged by all the parties thereto before the Surrogate of Schenectady County on the 29th day of January, 1942, and Norman D. Kathan, Executor of the Estate of Roland V. Kathan and residuary legatee therein, having presented his petition for the approval of said agreement of compromise, and the parties having been examined before the Surrogate and the Surrogate having determined that a Special Guardian be appointed for Lucy K. Jenkins and Frank E. Kathan and having appointed Harry G. Coplon, Esq. such Special Guardian and the said Lucy K. Jenkins and Frank E. Kathan having appealed to this Court from the order appointing said Special Guardian, and said appeal having come on to be heard before this Court on the 16th day of March, 1942 and said appeal and proceedings herein having been adjourned to March 17th, 1942 for the purpose of a hearing and inquiry before this Court as to the propriety and necessity for such order appointing a Special Guardian, and the said parties upon said hearing having stipulated upon the record of this Court that all proceedings herein and the application of Norman D. Kathan, Executor of the Estate of Roland V. Kathan, Deceased, for the approval of said compromise agreement be remitted to this Court for hearing and determination thereon and the said Lucy K. Jenkins having appeared by Charles T. Lark, Esq., her attorney, and by John B. Doyle, Esq., of counsel, and the said Frank E. Kathan having appeared by Arthur H. Vinett, Esq., his attorney, and by John B. Doyle, Esq., of counsel, and the said Norman D. Kathan, as Executor and individually, having appeared by Jasper S. Levine, Esq., and by Ellis J. Staley, Esq., and Ellis J. Staley, Jr., Esq., of counsel, and Harry G. Coplon, Special Guardian, having appeared in person, and said parties, Special Guardian, attorneys and counsel therefor having been heard and due deliberation having been had thereon, it is

ORDERED, that the order of the Surrogate of the County of Schenectady, Dated February 27, 1942, appointing Harry G. Coplon, Esq., Special Guardian for Lucy K. Jenkins and Frank E. Kathan be and the same hereby is reversed, and it is

FURTHER ORDERED, that said compromise agreement dated January 29th, 1942 except as modified herein, be and the same is in all respects approved, sanctioned and ratified and that the said Norman D. Kathan, individually and as; residuary legatee and Executor under the Last Will and Testament of Roland V. Kathan, Deceased, be and he hereby is authorized to adjust said controversy in the manner as in said compromise agreement provided, except as is herein-modified, and upon receipt by him of proper stipulation discontinuing all proceedings commenced and now pending by Lucy K. Jenkins and Frank E. Kathan. and discontinuing all appeals herein, and of all releases, duly executed and. acknowledged by Lucy K. Jenkins and Frank E. Kathan, releasing the parties,, as in said compromise agreement provided, and upon the receipt and release for-the legacies of Two thousand ($2,000) Dollars bequeathed under said Last Will. and Testament to Lucy K. Jenkins and to Frank E. Kathan and to each of them,, and the duly executed and acknowledged consent of Lucy K. Jenkins and Frank. E. Kathan that the accounts of said Norman D. Kathan, as such Executor, be. judicially settled and allowed by the Surrogate of Schenectady County, the said Norman D. Kathan, as Executor under the Last Will and Testament of Roland. V. Kathan, be and he hereby is authorized and directed to make payment from, the residuary estate, in the manner as in said compromise agreement provided, to Lucy K. Jenkins in the sum of Fifty thousand ($50,000) Dollars, in addition to the legacy of $2,000 bequeathed to her under said Will and to make payment to Frank E. Kathan in the sum of Fifty thousand ($50,000) Dollars, in addition to the legacy of $2,000 bequeathed to him under said Will and to make the payments of $2,000 to Lucy K. Jenkins and to Frank E. Kathan and to each of them for the legacies bequeathed to them under said Last Will and Testament, and it is

FURTHER ORDERED, that there be allowed to Harry G. Coplon, Esq., Special Guardian appointed by the order of said Surrogate of February 27th, 1942 for his services and disbursements herein the sum of Five hundred ($500) Dollars, which said sum of $500 is directed to be paid equally by Charles T. Lark, attorney for Lucy K. Jenkins, and by Arthur H. Vinett, attorney for Frank E. Kathan, from the compensation received by each of them from their respective clients, and it is

FURTHER ORDERED, that upon the performance of the covenants of said compromise agreement hereby approved, ratified and sanctioned and upon the payments therein directed and as directed by this Court by and to the parties and in the manner as herein directed, that the Estate of Roland V. Kathan and the Parties of the First and Third Parts of said agreement of compromise and settlement be forever discharged of and from all claims and demands of the said Lucy K. Jenkins and Frank E. Kathan which they now have or hereafter may have and which their heirs, representatives or assigns now have or hereafter may have against said Parties of the First and Third Parts of said agreement, and that all orders and stipulations between the parties and their attorneys restraining in any way or manner the said Norman D. Kathan, as such Executor, from selling or transferring the securities, property or funds of said Estate be vacated and set aside.

Approved:

JAMES P. HILL,
Presiding Justice.
The foregoing was read to and approved by the entire court.
J. P. H.
P. J.
John S. Herrick,
Clerk.  