88 Pa. 499 | Pa. | 1879
delivered the opinion of the court, March 3d 1879.
This bill, in equity was filed to compel the plaintiffs in error to transfer certain shares of stock standing upon their books in the names of Robert E. Stockton, Richard Stockton and William H. Cuyler, trustees, and also to pay over certain dividends which have accrued upon said stock. All of said trustees were deceased at the time of the filing, of the bill, and this proceeding was commenced by the executors of Richard Stockton, deceased, who was the suryiving trustee. The executors are non-residents, as were also the deceased trustees. It was alleged in the bill that the trust under which the stock was held was created by the will of James'Potter, a citizen of the state of Georgia, and domiciled therein at the time of his death; that by the laws of that state, where a testator in his will expressly provides, that in case of the death of a surviving trustee, his executors shall become trustees, such executors of the surviving trustee, though they may be created such executors by a will proved in another state, become and are the legal successors of such deceased trustee, clothed with all the estates and duties of such deceased trustee as fully and in the same manner as if they had been originally named as trustees in the will of, the testator.
The answer of the defendants admits a portion of the averments of the bill, but they ask that the persons interested in the said trust estate may be made parties and demand the production of the wills of James Potter and Richard Stockton respectively, and of the letters testamentary granted to the executors of said Stockton. The answer further avers the willingness of the defendants to transfer the stock to the proper parties and to submit to such decree as shall seem just and equitable.
Upon the bill and answer as filed, the court below without the production of the documents referred to, made a decree requiring the company to transfer the stock in accordance with the prayer of the bill and also to pay over the dividends remaining due and unpaid. This decree is the subject of the several assignments of error.
It is not alleged that the plaintiffs in error are making any captious objection to the transfer. On the contrary, it is manifest they only desire the right of the complainants to be established with reasonable certainty. This would seem the more necessary from the fact that if a mistake is made they would not be protected by the decree, for the reason that the parties beneficially interested in the stock are not made parties, and would not be bound by any decree made without notice to them. Before the strong arm of a chancellor
This record does not furnish satisfactory evidence of the right of the complainants to the transfer. The important papers, oyer of which was asked by the defendants, are not produced. They might have sustained the allegations of the bill. But this decree is too severe and too summary to be based upon conjecture or probabilities. The learned judge of the court below appears to have realized the force of this when he so framed the decree as to order the transfer to be made upon the production of the papers referred to, and their deposit with the defendants, accompanied with affidavits of the deaths of Robert F. Stockton and William H. Cuyler, prior to the death of Richard Stockton. Mere ex parte affidavits would not furnish the evidence upon which a final decree could be made with safety, and the papers when produced might show that the appellees were not entitled to have the transfer made.
We need not discuss the question of jurisdiction. There was no demurrer to the bill, and this point was not seriously pressed upon the argument.
The decree is reversed and the bill dismissed without prejudice ; the costs to be paid by the appellees.