In re the Estate of Linares

This matter originally came before the surrogate as a discovery proceeding, in the course of which a compromise was made between the parties. The present application is made by Josefa Linares, the administratrix, to require Francisca Reyes, the respondent in the former proceeding, to execute and deliver a proper additional form of release and assignment. The application is granted.

When the original compromise was made it was clearly intended by the parties that Francisca Reyes would release all her interest, not only in the proceeds of the settlement in the New York estate of the decedent, but would also release all her rights of any kind against the estate in Spain, or against the property of the decedent, or of any right against its individual heirs or legatees. Such was the express provision of paragraph 6 of the original stipulation and compromise dated November 22, 1923, which reads in part as follows: “ She [Francisca Reyes] further agrees to release, by proper instrument that may be required under the Law of Spain, any interest she may have in the Spanish property.” That interest not only included any right of participation in the estate, but also any rights against the individual heirs under the agreement with them of September 6, 1923, executed in Spain. The existence of the latter agreement was disclosed to the surrogate before the stipulation was signed. Subsequent to the stipulation of compromise of November 22, 1923, and pursuant to its terms, tentative releases were prepared by the parties. The modifications in the form of the release made by the surrogate were not intended to indicate that the claims of Francisca Reyes under the agreement *360of September 6, 1923, were reserved by her. The matter was eliminated for the sake of brevity and clarity. What was intended to be done was to settle all the differences between all the parties arising out of the estate, to fix the amount to be paid by Francisca Reyes as a final discharge, and to release to her the valuable American business, title to which was in dispute under the discovery proceeding. The matter eliminated in the tentative release was regarded as surplusage and repetition, for the release was sufficiently clear and comprehensive in its general terms to cover every form of claim that might be asserted by Francisca Reyes. The release, as actually executed, contained the following language: “ I, the said Francisca Reyes Cuellar, have remised, released * * * unto the said Micaela Reyes Cuellar, Micaela Linares Reyes, Josefa Linares Reyes and Enriquetta Linares Reyes, all and every right, title and interest, share and claim which I now have or ever had against the estate of the said Enrique Linares, late of the City of Granada, Kingdom of Spain, and any and all property of said estate, situated within the Kingdom of Spain.”

It is apparent that the action brought in Spain on the agreement of September 6, 1923, by Francisca Reyes was an afterthought and an attempt by her to escape the effect of the release executed voluntarily by her and to evade the terms of the stipulation. In accordance with the power vested in the surrogate under the terms of the stipulation, which required the instruments to be executed in the form approved by me, and wherein the parties agreed to abide by his decision, an order may be submitted requiring Francisca Reyes to execute, before the Spanish Consul, the release in the amended form proposed by the administratrix. Such order may likewise contain a provision that Francisca Reyes has released whatever rights that she had under the agreement of September 6, 1923. _