In re the Accounting of Union Trust Co.

Willard Bartlett, Ch. J.

In a proceeding in the Surrogate’s Court of the county of New York instituted by the Union Trust Company as a substituted trustee under the will of Christian E. Detmold, deceased, it became necessary for the court to direct the proper distribution of the trust fund created by the third paragraph of the testator’s will, the trust having terminated by reason of the death of the life tenant. The surrogate made a decree directing that the fund should be divided into twenty parts and distributed among all the descendants of the testator who were living at the time of the death of the life tenant. On that date there were twenty of such descendants living, eight of them being the children of Zella Trelawney Lentilhon, the testator’s daughter, and twelve of them being children of her children — that is to say, grandchildren of the testator.

From this decree only one of the eight children of Zella Trelawney Lentilhon appealed to the Appellate Division. Upon that appeal the Appellate Division decided that the trust fund should be divided, into only eight equal shares instead of twenty and should be distributed only among the children of Zella Trelawney Lentilhon, excluding from any share in the trust fund the twelve great grandchildren of Mr. Detmold.

Inasmuch, however, as only one of the eight grandchildren had appealed, the order of the Appellate Division was drawn so as to benefit that appellant alone; and, accordingly it directed that one-eighth of the fund should be paid to him and that the balance of the fund should be divided and distributed in equal shares among all the other descendants of the testator at the rate of 7-1-52 to each. Five of the eight grandchildren who did not appeal to the Appellate Division have now appealed to this court from so much of the Appellate Division’s order as directs that they shall receive only 7-152 of the trust fund and they ask this court to modify the order so as to provide that each of them as well as Edward Detmold Lentilhon shall receive one-eighth of the trust fund in controversy. Although they were not parties to the appeal to the Appellate Division the effect of the order made upon that appeal was to reduce the amount of money which each should receive out of the trust fund below that which they would have received under the decree of the surrogate; and consequently they contend that this reduction not only gives them the right to appeal to this court but entitles them to a modification of the order of the Appellate Division so as to place them on the same footing with their brother who did appeal to the court below.

In opposing the desired modification, the respondents rely "upon the case of St. John v. Andrews Institute (192 N. Y. 382, 386) in which this court held after very careful consideration that next of kin who did not appeal from a judgment eonstruing a will could not take advantage of the reversal of that judgment upon an appeal by others. This, however, was because the interests of the next of kin were not joint but several and, therefore, the aetion or litigation of one could not eonclude or affect the rights of others. In so holding, Chief Judge -Cullen, who wrote the prevailing opinion, quoted with approval the general rule on this subject as stated by Mr. Freeman in his treatise on Judgments, thus: “ Where a judgment is against two or more persons, one only of whom appeals, its reversal, if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties who did not appeal to the same extent as those who did.” (2 Freeman on Judgments, § 481.) In the present case it is manifest that all the brothers and sisters of Edward D. Lentilhon, who alone appealed to the Appellate Division, must co-operate in complying with the, judgment of that court by suffering a reduction of the amount which otherwise they would have received under the decree of the surrogate. Therefore they constitute a class all of whom are necessarily affected in the same way and to the same extent by the •order of the Appellate Division. It follows that the benefit of that order may not be confined to Edward D. Lentilhon alone but most be awarded to the present appellants.

The order of the Appellate Division should be modified by •directing a distribution of the trust fund among the eight children of the testator’s daughter, Zella Trelawney Lentilhon, and as thus modified should be affirmed, with costs to the appellants and to the special guardians payable out of the estate.

Chase, Collin, Cuddeback, Hogar, Cardozo and Pound, JJ., concur.

Ordered accordingly.