23 N.Y.S. 520 | N.Y. Sup. Ct. | 1893
This action was brought by the plaintiffs, as trustees of Ellen F. Melchor, to procure a judgment by which
It seems to us, upon these facts, that a plain case for an injunction was made out. Mrs. Stevens had no right under the will' to collect rents for the real estate, or to make leases thereof, as executrix. The only duty imposed upon the executors and executrix with regard to the residuary real estate is to divide it into three equal parts, and to make proper conveyance thereof to the trustees of the several trust funds. It is true that this residuary real estate was charged with the trust legacy in her favor, and, indeed, with all the other legacies; but that gave her no mortgage, either as executrix or individually, upon this real estate, much less upon the rents and profits thereof. The charge is in favor of her trustees, as trust legatees, and, while they have a right to enforce this charge to the extent of the
The learned judge at special term placed his decision upon three grounds: First, that the granting of the motion would be, in •effect, to remove the executrix; second, that the facts set forth in the moving papers were denied; and, third, that irreparable injury was not shown. The first ground involved a misconception of the relief sought. The plaintiffs do not ask the court to restrain any act which Mrs. Stevens has a right as executrix to perform. It is not an interference with her executorial functions to direct that she shall not infringe upon the rights of others by possessing herself of that to which, as executrix, she has no right. ■She is not thereby removed or shorn of any of her lawful functions. The court simply exercises its power to regulate and control her