The deceased left a daughter who is incompetent. The appellant is her committee. During their lifetimes the deceased and his wife entered into a separation agreement one of the terms of which was that the deceased would make adequate provision in his will for the support and maintenance of the daughter. Pursuant to that obligation his will provides that the income from a certain piece of real estate be devoted by the testamentary trustees to that purpose. The real estate has since been sold for $85,000 and the annual income from the proceeds is about $5,200. The assets of the estate, which has been in litigation since 1965, are variously estimated as being from $1,300,000 to $10,000,000. Deeming the provision for the incompetent’s support to be inadequate, the committee instituted an action against the estate.
The attorneys for the interested parties met for the purpose of arriving at a settlement. The meeting took place at the Surrogate’s Court and was attended by attorneys for the committee, for the executors and for the beneficiaries of the trusts created by the will. The latter are residents of Poland. A charitable beneficiary was not represented. The meéting was also attended by a law assistant to the Surrogate. After lengthy negotiations the terms of a stipulation of settlement were arrived at and dictated to a court stenographer. The import of the stipulation was that the trust for the benefit of the daughter would be increased to $300,000 at the expense of the trusts for the other beneficiaries, including the charity. However, the stipulation does not provide that the action by the committee is thereby settled. All that was agreed upon was that the proposed settlement would be recommended by the attorneys to their respective clients and then reduced to writing and submitted for approval to the Surrogate and the Supreme Court in Westchester County, which had jurisdiction of the incompetent’s person and estate.
Sometime in April, 1972 the attorneys for the executors prepared a written stipulation for settlement which was approved by all parties, but authorization to sign was not received from the Polish beneficiaries. On June 19, 1972, the attorney for
By this application the executors sought to compel the committee to acknowledge the settlement by signing it. The Surrogate changed the effective date of the agreement to February 11, 1972, the supposed date of the dictated terms, and directed the committee to sign it.
The reasoning of the Surrogate is that on that date the parties arrived at a fair settlement in open court, subject only to the approval of the respective courts having jurisdiction. The difficulty is that this is just not the fact as revealed by the record. Leaving aside the question of whether the stipulation was one arrived at in “ open court ’ ’, which at best is very doubtful (Matter of Dolgin Eldert Corp., 31 N T 2d l),.the stipulation does not settle anything. It merely records what the attorneys will recommend to their respective clients and leaves to the latter whether they will agree or not. The executors argue that the stipulation was the agreement and all that remained was to reduce it to suitable form. This is belied by both their expressions and conduct. On February 11, 1972, their counsel advised them that 11 Popper [attorney for the Polish beneficiaries] reserved the right to get approval from his clients and of course I reserved the right to get approval from Palmer [the charitable beneficiary] and yourselves.” Furthermore, they did not fix as the effective date of the stipulation the date of the negotiations but the date of the drafted agreement. Nor have they to this date sought to implement the supposed settlement by tendering any income in accord with its terms.
It is not for this court to decide whether the committee should now agree to the settlement. It is patent that before there was any agreement the committee withdrew her consent previously given.
The decree of the Surrogate’s Court (DiFalco, S.) dated February 6,1973, should be reversed on the law and on the facts and the application denied with costs to all parties filing briefs payable out of the estate.