147 N.Y.S. 989 | N.Y. App. Div. | 1914
This is an appeal from a judgment directing that the defendant National Lead Company replace and deliver to the plaintiff and to the defendants George A. Pearse, Laura M. Gorman, Carrie Y. Rooney and Edward H. Pearse (being his brothers and sisters), to each five and two-fifths shares of the preferred stock, and .five and two-fifths shares of the common stock of said company, or, in default thereof, pay to said parties the value of said stocks, together with the dividends and interest thereupon. The controversy arises out of twenty-seven shares of National Lead Company preferred stock and a similar amount of its common stock, originally standing in the name of Augustus F. Pearse, the grandfather of the plaintiff and of the four defendants named. Said stock was issued to Augustus F. Pearse in 1891, and remained in his name until the time of his death, December 24, 1898. Augustus F. Pearse left a last will and testament and a codicil thereto, which were duly admitted to probate in the Surrogate’s Court of New York county March 18,1899, wherein he named as executors and trustees Charles B. Pearse, his son, and his friends Samuel Derick-son and Edward Tillou. Charles B. Pearse and Edward Tillou alone qualified as such executors and trustees, and letters testamentary were duly issued to them March 20, 1899. By the 9th clause of his will said testator gave, devised and bequeathed to his executors, their survivor and successors, among other personal property, all his shares of the capital stock of the National Lead Company, to have and to hold the same during the life of his son George A. Pearse, “ in trust, and with power to collect
The executors under said will of Augustus F. Pearse filed their account and a decree was entered thereupon April 17, 1901, in the usual form, including a summary of the receipts and disbursements of the estate, and by which judgment it was, among other things, adjudged and decreed that the said accounting of the executors and trustees be judicially settled and allowed as filed and adjusted. The executors then were directed to make certain payments, and a clause allowed them “ to claim upon a future accounting the commissions to which they may he entitled for receiving and paying out the sum of $3,500, the proceeds of the sale, as shown in the account of the Litchfield property devised to them in trust, and that the principal of the moneys and other personal property bequeathed to them upon the several trusts declared in said will be subject to the determination at a future accounting of the commissions to which said executors may he entitled as trustees, and that such commissions, if any, shall not be deemed to have been waived by them.” The final clause of the decree provided:
We find ourselves unable to accept this view of the duty of the lead company. The original certificates of stock had stood, and always stood, upon its books in the ‘ name of the testator, Augustus F. Pearse. So far as it was concerned the only owner of the stock whom it was bound to recognize was Pearse in his lifetime; and after his death the executors of his estate until they had transferred the stock to some one else by proper indorsement thereupon. Immediately upon the death of Pearse the title to this stock vested in the executors who qualified, and they could not be divested of the title save in the only way recognized for such a transfer, namely, upon the books of the company at the instance of the executors of the decedent, in whose name the stock still stood. Not only
The judgment appealed from will, therefore, he reversed, with costs, and judgment ordered in favor of the appellant, dismissing the complaint upon the merits, with costs.
Ingraham, P. J., McLaughlin, Laughlin and Hotchkiss, JJ., concurred.
Judgment reversed, with costs, and judgment ordered for appellant dismissing the complaint upon the merits, with costs. Order to be settled on notice.