102 A.D. 251 | N.Y. App. Div. | 1905
The plaintiffs in this action, as substituted trustees under the will of Robert Barkley, deceased, seek to recover 200 shares of the capital stock of the National Broadway Bank, transferred by them to the Mercantile National Bank, in violation of the terms of the will and of the orders of the Supreme Court under which they were appointed to succeed the original trustees. These orders provided that the substituted trustees should have no power or authority to bargain, sell, alienate or in any manner dispose of any part of the principal of the real or personal property of the estate without having first obtained leave of the court, nor until they should have given such security for the due and proper proportion of the proceeds of any sale as the court might thereafter direct and require. The transfer of the National Broadway Bank stock to the Mercantile National Bank was made by the indorsement of the certificates by the plaintiffs as
I think the judgment should be reversed and that the plaintiffs should have an interlocutory judgment overruling the demurrers, but providing that the defendants have leave to answer over.
Jenks, Rich and Miller, JJ., concurred;' Hooker, J., not voting.
Final judgment reversed, with costs, and interlocutory judgment directed overruling the demurrer, with costs, with leave to the defendants to answer over upon payment of costs.