
    Elise M. Jewett, Respondent, v. Melinda P. Schmidt, a Daughter of George Parbury Pollen, Deceased, Individually, and as Executrix, etc., of Bache McEvers Schmidt, Deceased, and as Sole Surviving Administratrix with the Will Annexed of George Parbury Pollen, Deceased, Appellant, Impleaded with Fritz Leopold Schmidt, Jr., Respondent, and Others.
    
      Parties to an action relating to a decedent’s estate — when the representatives of children, parties to an action to,construe his will and since deceased, are not necessary parties thereto —what admission in an answer prevents such oljectiori being raised — notice of an application to confirm, a referee?s report —order made nunc pro tunc—expiration of the term and the re-election of a justice pending a rearrgument.
    
    Where an action brought to obtain a construction of a will, to which action one of the testator’s daughters and the latter’s children were made parties, results in an adjudication that on the death of such daughter her interest in the estate would pass to her issue living at the time of her decease, the fact that in a subsequent action affecting the estate the representatives of the children of such testator’s daughter, who in the interim had died without issue, are not made parties to the suit, does not constitute a defect of parties defendant.
    
      In any event the question of such defect cannot be raised by the mother of such deceased children, where she expressly admits in her answer an allegation of the complaint that “ all persons having any vested or contingent interest in the principal or income of said trust fund are parties to this action.”
    Notice of an application for the confirmation of the report of a referee, appointed pursuant to the terms of an'interlocutory judgment, and for the entry of final judgment thereon, need not be given to an infant defendant as to whom the complaint was dismissed by the interlocutory judgment.
    The Supreme Court has power, in order to obviate possible difficulties arising from the birth of a child to one of the parties defendant pending the submission of an application for final judgment in an action, and the granting of such final judgment, to direct that such final judgment be entered nunc pro tunc as of the time of the submission of the application.
    Where a justice who held a Special Term, at which a motion was made, grants a reargument of such motion, the fact that such justice’s term of office expires on December thirty-first, and that a reargument is ordered for the following January, does not prevent him, when re-elected for a term of office beginning upon the expiration qf his former term, from presiding at the Special Term at which the reargument is had.
    Appeal by the defendant, Melinda P. Schmidt, individually, and as executrix, etc,, of Bache McEvers Schmidt, deceased, and as administratrix, etc., of George Parbury Pollen, deceased, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Fritz Leopold Schmidt, Jr., entered in the office of the clerk of the county of Hew York on the 14th day of January, 1905, nunc ¡pro tunc as of the 12th day of January, 1904, with notice of an intention to bring up for review upon such appeal certain intermediate orders and judgments.
    
      Barclay E. V. McCarty, for the appellant.
    
      Thomas J. Falls, for the plaintiff, respondent.
    
      Walter Carroll Low, -for the respondent Fritz Leopold Schmidt, Jr.
   McLaughlin, J.:

This appeal is from a final judgment. The case was before us on appeal from the interlocutory judgment (83 App. Div. 276) and it is necessary here to state only such facts as bear upon the points now raised. After the affirmance of the interlocutory judgment by this court and its refusal to permit an appeal to the Court of Appeals (86 App. Div. 627) the accounting under the provisions of the interlocutory judgment proceeded before a referee, who, on August 26, 1903, filed, a report and the plaintiff moved for confirmation and for final judgment.

The appellant objected to the confirmation of the referee’s report and to the entry of final judgment:

First. Upon the- ground that the representatives of George Par- ■ bury Pollen Schmidt and John William Schmidt, two of her children who had died without issue prior to the commencement of the action, were not made parties, .and insisted that no determination could be ■ had without their presence. The court overruled the objection and denied the motion to add them as parties defendant, and we' think properly. In an action brought by the executors of the will of George Parbury Pollen Schmidt in 1879 for a construction of that instrument these deceased children of the appellant were made parties, and in the judgment rendered therein it was determined that, on the death of the two daughters of the testator —* one of whom is this appellant — the fund set apart for her use should go- to her legal issue living at the timé of her decease. This judgment, so construing the provisions of the wilf and determining the lights ’ of the several legatees is binding upon the parties and a conclusive answer to the claim that representatives of children of the. appellant, who had predeceased her without issue, should be made parties.. There' is also an additional answer, to the appellant’s' contention in this respect, and that is that in the .complaint in this action, which omit* ted as parties the representatives of the deceased children of appellant, an allegation was inserted that ■“•all persons having any vested or contingent interest'in the principal or income of said trust fund are .parties to this action.” The appellant by her answer expressly admitted this allegation and she did not set up any defense of defect of parties defendant. She is, therefore, not in a position to claim that the representatives named should have been made parties. Besides, the action was not brought to determine the ultimate rights of the various parties to .the trust fund left by the testator, but rather to establish the fact that the fund constituted a trust and for án .accounting of the moneys in the hands of the appellant as administratrix with the will annexed and for the appointment of a trustee. ■ ’ - .

Second. The appellant further objected to the confirmation of the report and the final judgment, upon the ground that the infant defendant Melinda Parbury Schmidt, a daughter of Fritz Leopold Schmidt, Jr., had not been given notice of the application therefor, nor of the hearings before the referee on the accounting. It is a complete answer to this objection that the interlocutory judgment dismissed the complaint as to this party. In the appellant’s appeal from the interlocutory judgment she expressly stated in her notice of appeal that she did not appeal from that part of the judgment ■which dismissed the complaint as td such infant. The infant against whom the complaint was dismissed did not appeal and, therefore, she was out of the action and no further notice need have been given to her "or to her guardian ad litem, and it is to be .noted that she has not appealed from the final judgment.

Third. The application for final judgment was submitted to the court on the 12th of January, 1904, and decision was not filed until January 14, 1905. In the meantime a son was born to- the defendant Fritz Leopold Schmidt, Jr., who is known in the record as Parbury Pollen Schmidt. To avoid any embarrassment by reason of the birth of this child, occurring during the necessary consideration of the case by the court, the final judgment was directed to be entered nunc fro tunc as of the date of the submission of the ease. It is urged that the court had no power to do this. We think it had. The power of courts, whether of law or equity, to make entries of judgménts or decrees nunc fro tunc in proper cases and in furtherance of the interests of justice, is one which has been recognized and exercised for a long time as a part of their jurisdiction. The exercise of this power is to prevent any event happening while the case is in the hands of the court which would otherwise deprive the successful party, of his judgment. (Black Judg. §§ 126, 127; Mitchell v. Overman, 103 U. S. 62, and authorities cited in the note.) This newly-born child was a brother of the infant in whose favor the complaint on the interlocutory judgment was dis-. missed and stands in like relation to her. But even if the father of the newly-born child —the defendant Fritz Leopold Schmidt, Jr.— was not the only necessary party and if it were proper or even nee-, essary that his children should also be made parties, the court had the power to direct the entry of the judgment nv/nc fro tunc as it did for the purpose of obviating any difficulty arising during its retention of the, case for consideration.

Fourth.. After the argument of the motion for final judgment and for confirmation of the referee’s report, a reargument' was ordered for a time in the following January. The justice before whom the original motion was made, and who- ordered the reargument,. had been re-elected and his prior term of office expired and his new term began on the first day of January, intermediate the order for reargument and the hearing. Objection was made that the proceeding could not be continued before him because his term of office had expired. This was overruled and, we think, properly. The motion was made to the court and the reargument directed to another court. Both Special Terms were held by the same justice, and the fact that his old term of office had expired and the new term immediately begun did not deprive him of the power to hold the court or entertain the motion.

In Kelly v. Christal (16 Hun, 242) it was held that where the term of a justice of the Supreme Court expired during a trial and he immediately entered upon a new term, under a re-election, he had jurisdiction to conclude the trial and decide the case.

Finally it is claimed that the final judgment is erroneous because it provides that the appellant shall turn over the accretions of the trust fund to the trustee appointed. The interlocutory judgment , provided that the trustee therein appointed should take the fund,. together with all accretions. On appeal the court affirmed such judgment, modifying it only to the extent of striking out the name of the trustee and holding that the trust vested in the Supreme Court and appointing the same trustee as a representative of the court to carry out its provisions.

We are not, therefore, disposed to review our' former decision affirming the interlocutory judgment.

The judgment and orders appealed- from should be affirmed, with costs to the respondents against the appellant personally. _ .

O’Brién, P. J., Patterson, Ingraham and Clarke, JJ., concurred..

Judgment and orders affirmed, with costs to respondents against the appellant personally. <  