120 N.Y.S. 1048 | N.Y. App. Div. | 1910
The respondents’ brief states : “ The plaintiffs, as Executors, and Trustees under the last Will and Testament of John Boyle, deceased, brought these actions to recover from the defendant a sum equal to six per cent-(6%) on the capital invested in the business conducted Under the name of John Boyle & Co., Incorporated, by the defendant, a domestic corporation, and the balance of the income for the year 190.8 withheld from plaintiffs contrary to the provisions of Mr. Boyle’s will.” In action No. 1 the court found : “ The sum of .Forty-five thousand ($45,000) dollars in the possession and under the control of the defendant is impressed with the trust created by the Last Will and Testament of John Boyle, deceased, for the benefit of his widow, and that it be paid over to the plaintiffs as executors and trustees under the said testator’s Will, to be by them applied and paid over as therein directed. Second'. That defendant be directed to pay the said sum to the plaintiffs as executors and trustees aforesaid* with interest from January 1st, 1908.” In action No. 2 the, court found: “First. That the sum of Eighty thousand and forty-five and 79/100 ($80,045.79) dollars in the possession and under the control of the defendant is impressed with the trust created by the Last Will and Testament of John Boyle, deceased, for the benefit of his widow and children ; that it be paid over to the plaintiffs as executors and trustees under the, said testator’s will, to be by'them applied and paid over as therein directed. ■ Second. That defendant be directed to' pay the said sum to tire plaintiffs, as executors and trustees aforesaid, with interest from January. 1st, 1908.” The will provides : “ Fourth. All. the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to.my trustees hereinafter named, in trust, nevertheless for the'uses and purposes hereinafter set forth. Fifth. I direct that my exeaator-s and trustees dispose of the principal of said residuary estate and apply and pay over annually the income arising therefrom as follows: To my wife, until her death or remarriage, from the income from my business, conducted under the name of John Boyle & Co., whether incorporated or not, á sum equal to six per cent (6%) on my "capital invested therein, and, in addition thereto, one-fourth (¼) of the remaining profits coming to my estate therefrom (for the purposes of this para-
The- defendant was incorporated pursuant to the direction contained in the last will and testament of John Boyle, deceased, on or about September 28, 1905. Thereafter a large part of the residuary estate of John Boyle, deceased; was delivered by Phoebe A. D. Boyle and John Eeuschele'r, acting as a majority of the executors, to the defendant, and the defendant received the same and delivered to the said executors the entire capital stock of the corporation in exchange therefor, and has ever since held and now holds and uses the said property and assets in its business as the capital- thereof. The plaintiffs as' executors and trustees aforesaid are the owners and holders of every share of the capital stock of the defendant corporation. During the first two years of its business the company earned and paid to the executors sixteen per cent upon
The judgments should be reversed and a new trial granted, costs to abide the final award of costs.
Woodward, Jenks, Bure; and Rich, JJ., concurred.
In each case judgment reversed and new trial granted, costs to abide the final award Of costs.