In Re the Accounting of the Bank of New York

Steuer, J. (dissenting).

I dissent only from so much of the determination herein which affirms the denial of the application *381 to drop Clifton B. and David D. Hipkins as parties and to remove John M. Foley, guardian ad litem, from further participation in the proceedings insofar as he represents those infants. Ernest Cowles, the life beneficiary of half of the trusts, has three children—Louise Hipkins, Edward B. Cowles and Stephen A. Cowles. Mrs. Hipkins has two children, the infants above named. At the beginning of the proceeding, Edward and Stephen were minors and Mr. Foley was appointed guardian ad litem for them as well as the Hipkins children. As such, he filed objections to the accounting. During the proceedings, Edward and Stephen came of age, disavowed the action previously taken on their behalf, and asked for approval of the accounts. Mrs. Hipkins never objected to the accounts.

The provisions of the two trusts in question have been amply set out in the majority opinion. The question presented by this branch of the appeal is whether the Hipkins children can be heard to object to the trustee’s account. These infants are not entitled to participate in the estate unless their mother dies during the lifetime of her father, their grandfather, and unless the grandfather fails to exercsie a power of appointment. Such infants are not necessary parties (CPLB 7703) and were not at the time of institution of these proceedings (Civ. Prac. Act, § 1311). It is argued that, as the statute does not forbid their appearance, they are proper parties and hence may be heard. It should be conceded that decisions to the effect that an unrepresented infant who was not a necessary party is bound by the decree (Matter of Baekeland, 26 Misc 2d 82 ; Matter of Blake, 208 Misc. 22 ) are not conclusive against the contention. Certainly, if the interest of the infant is adverse to that of the ancestor from whom he takes, the statute was not intended to dispense with his presence (Matter of Lachlan, 24 Misc 2d 323, 325 ).

At -this point it would be well to treat of the guardian’s contention that the interest of his wards is adverse to the interest of their mother. This claim rests solely on the ground that the mother does not wish to assert the claim against the trustee while the guardian, as representative of the infants, does. This is not an adverse interest, it is merely a divergent view. The interest of the infants is identical with that of the ancestor. In the absence of appointment, it is to take the same share of the trust, depending on which is the survivor, and is subject to the same possibility of defeasance, namely, exercise of the power of appointment by the life tenant. There is no contingency and no construction of the instrument whereby the issue will take if the ancestor was not so entitled, or any dis *382 tinotion in the shares to be taken. It is claimed that the mother’s failure to object could result in a diminution of the •size of the share which the infants would take if they come into the gift by .succession. But such inaction would also reduce the mother’s share were she ¡to be the donee. So the interest remains the same. It would be different only if the failure to object resulted in some benefit to the ancestor, which benefit was not reflected in the trust estate.

I return now to the distinction between a necessary and a proper party in the guardian’s argument. The statute is phrased in terms of which persons must be made parties in order to have a binding decree. It is inconceivable that, in so enacting, the Legislature intended that any person, no matter how remote his interest or how well that interest is protected, could appear and object to the account. It is submitted that a proper interpretation of the legislative intent is that representation is limited to necessary parties but that the rule is couched in its terms so as not to preclude the appearance of one otherwise not qualified whose interest is adverse or whose appearance, in the sound discretion of the court, would be advisable.

The particular case appears to be one well-illustrative 'of the merits of such an interpretation. All of the adult members of the Ernest 'Cowles family, including the one through whom these infants will take, if they take at all, are opposed to the filing of these objections. Doubtless they regard it as ill-advised and a substantial drain on a not particularly substantial estate. The other two wards of the guardian from this family disavowed the action of the guardian as soon as they were in a position to do so. The person presumably most interested in the welfare of these infants, and the representative of the class to which they might succeed, has taken a like position. These circumstances demonstrate the feasibility of not countenancing an appearance for these infants.

Botein, P. J., Rabin and McNally, JJ., concur with Eager, J.; Steuer, J., dissents in part in opinion.

Judgment modified, on the law and the facts, to strike and delete all provisions therein, except the provisions judicially •settling and allowing the trustee’s accounts as filed in the Alfred A. Cowles trust, to provide that the objections filed by all parties are dismissed and that the accounts, as filed by the trustee in the Louise P. Cowles and Russel A. Cowles trusts should be approved and judicially settled as filed, to provide that the trustee retain as income commissions in the Alfred A. *383 Cowles trust the sum of $32.60 instead of the sum of $1,586.72, as directed in said judgment, to strike the allowance and payment of $500 from the Alfred A. Cowles trust to John M. Foley for services as guardian, and the judgment as so modified, affirmed, with $50 costs and disbursements to all parties filing briefs payable out of the trust estates, with the exception that the guardian ad litem shall not receive any costs or allowances payable from the Alfred A. Cowles trust estate. Settle order on notice.