
    Ophelia J. Cuthbert, Resp’t, v. Cordelia D. Chauvet et al., Resp’ts, and The New York Life Insurance & Trust Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed September, 1892.)
    
    Trustee—Testamentary—May be compelled to join in compromise by BENEFICIARIES OF LITIGATION OVER THE WILL.
    The court has power to compel a testamentary trustee to execute a compromise of litigations concerning the validity of the will entered into hy the beneficiaries, and the trustee cannot prevent such compromise and. settlement in order to he allowed to earn commissions.
    
      Appeal in an action of partition by the New York Life Insurance & Trust Company, as trustee under the will of Francis W. Lasak, deceased, from an order directing said company to become a party to a compromise agreement entered into by all parties interested in the property partitioned, except the appellant as such trustee. The facts of the case are as follows:
    This is an action to. partition real estate of which Francis W. Lasak died seized. He left him surviving four daughters, to wit: Ophelia J. Outhbert, Cordelia D. Chauvet, Victoria A. McKenzie, Antoinette L. Schermerhorn, and a granddaughter, Margaret S. Ives, his only heirs at law. He left a will by the terms of which he gave to the plaintiff one-third of his estate, to the Hew York Life Insurance & Trust Company, as trustee, "one-third thereof in trust for Mrs. Outhbert for life, and disposed of the balance of said one-third by a bequest to Albert Chauvet of $50,000, and the remainder to the Children’s Aid Society and the American Female Guardian Society and Home for the Friendless, and the remaining one-third he gave to said trustee in trust for Mrs. McKenzie for life, with the remainder to such children as she might leave her surviving.
    The will also contains monetary bequests to Mrs. Schermerhorn and Mrs. Ives in amounts, however, less than their share of the estate would be if Lasak had died intestate.
    The partially disinherited heirs instituted numerous actions of ejectment which are now pending for the purpose of defeating said will, and upon the trial of one of said actions of ejectment the jury disagreed as to the validity of said will.
    To escape further litigation all of the adults in any manner interested in the property of which Lasak died seized have reached a compromise by which the will was to be allowed to stand as to the personal estate, and be declared null and void as to the realty; the real estate partitioned and sold, and the proceeds divided and held in trust in certain specified proportions. The only other necessary party to such compromise agreement is the Hew York Life Insurance & Trust Company ‘ as trustee under said will, the only cestuis que trusts who have not signed such agreement of compromise being Clarence McKenzie, an infant, and such children as may hereafter be born to Mrs. McKenzie.
    On that state of facts Mrs. McKenzie in this action of partition presented to this court her petition asking authority and a direction to the said trustee to enter into said compromise. The court, after an examination of the facts, concluded that the said compromise would be beneficial to the said infant and to such unborn issue and directed the trustee to enter into said agreement.
    
      R. S. Emmet, for app’lt; Edgar M. Johnson and F. R. Minrath, for resp’t Cuthbert; Calvin Frost, in person; Charles F. Mac Lean, for resp’t Ives; Aaron Kahn, Christopher Fine and Robert Sewell, for resp’t Schermerhorn ; Geo. G. Reynolds, for resp’ts McKenzie et al.; Charles Donohue, for resp’ts Chauvet; F. A. Ward, guardian ad litem; F. B. Van Vorst, for Children’s Aid Society; Bartlett, Wilson & Hayden, for American Female Guardian Society.
   Pratt, J.

This is an appeal from an order made at special term, authorizing a settlement of various litigations between the parties and ordering the defendant, the New York Life & Trust Company, a trustee under a certain will, to execute a compromise made by the beneficiaries under said will.

The litigations were numerous and several trials in different courts have been had.

The contention that a trustee can prevént the settlement of litigations agreed upon by the beneficiaries in order to be allowed to earn commissions seems monstrous.

If a will is declared void it is the equivalent of no will and no trust or trustee.

The settlement was evidently greatly to the benefit of the beneficiaries, and it is sought to be prevented in order that the trustee may have fees it has not yet earned.

The power of the court to grant the order appealed from cannot be questioned. It is among the chancery powers devolved upon this court Bryan v. Knickerbacker, 1 Barb. Ch., 409, 428; Ireland v. Ireland, 84 N. Y., 321; see also note, 5 Abb. N. C., 353.

The propriety of the order cannot be criticised; here were parties of full age seeking to obtain what is concededly their own speedily and at a saving of great expense. See case of Wood v. Wood, 5 Paige, 596 and 607: approved in Leitch v. Wells, 48 N. Y., 599.

We think that the demand of the trustee for commissions upon property that has never come into its possession, and probably never will, is unreasonable.

It is clear, as stated in the order, that the trustee has had awarded to it all it deserves for services to the estate either as administrator or trustee, and no claim can justly be made that will prevent carrying out the settlement made by the parties.

Order affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concur.  