18 N.Y.S. 605 | N.Y. Sup. Ct. | 1892
Lead Opinion
The complaint alleges that the plaintiffs are infants, 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 the 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 L. Lane, their mother; that subsequently an action was commenced in this court by
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 courts; 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 exorbitant claims. The rule is stated in 12 Arner. & Eng. Enc. Law, p. 144; “A court of equity may inter]«ose 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.
Concurrence Opinion
I concur. There was no real controversy which resulted in the judgment of this court, and consequently no binding adjudica
O’Brien, J., concurs with presiding justice.