123 Misc. 5 | N.Y. Sup. Ct. | 1924
This is an action for the construction of a will, with particular reference to the right of the defendant Henry J. Lucke to vote the stock held by the decedent, William Randall, in William Randall & Sons, Inc., and to enjoin the said Lucke from voting any of the stock of the plaintiff corporation or exercising any control thereof.
That the Supreme Court may take cognizance of such an action where complete relief cannot be had in the Surrogate’s Court seems settled by authority. Tonnele v. Wetmore, 195 N. Y. 436; Moore v. De Groote, 158 App. Div. 828; Wallach v. Wallach, 144 id. 19; Pyle v. Pyle, 137 id. 568.
The will provides (paragraph 4): " I give, devise and bequeath unto my son-in-law, Henry J. Lucke, all of my shares of stock in
Paragraph 5: “I give, devise and bequeath unto my son, Frank Hervey Randall, and my son, Sidney Charles Randall, all the rest, residue and remainder of my estate, of which I shall die seized and possessed, real, personal and mixed, of whatever kind and nature, and wherever situate, with power of disposal of my said shares in William Randall & Sons, Incorporated, in trust, nevertheless, for the following specific purposes:
“It is my wish that my said trustees, Frank Hervey Randall and Sidney Charles Randall, shall not dispose of any of my shares of stock in William Randall & Sons, Incorporated, during the lifetime of my beloved wife, Susanna Randall, unless in their judgment it shall become absolutely necessary to do for the protection of the interests of my estate in the said business.”
The wording of these provisions and the intent of the entire instrument establish that there was a power to vote unaccompanied by legal ownership or beneficial interest in the stock by the defendant, Henry J. Lucke.
The statute provides (Gen. Corp. Law, § 23): “ * * * Every stockholder * * * shall be entitled to one vote * * *.”
In People’s Trust Co. v. O’Meara, 204 App. Div. 268, in the dissenting opinion by Mr. Justice Kelby, at page 279, it is stated: “ The right to vote follows the legal ownership, and the corporation has nothing to do with the equities between the owner and third persons.” Citing authorities. Also Stock Corp. Law, § 47; Lord v. Equitable Life Assur. Society, 194 N. Y. 212.
The legislature has permitted voting in three ways only by those other than stockholders: (1) By fiduciaries, under section 48 of the Stock Corporation Law; (2) by voting trust agreements, under section 50; and (3) by proxies, under section 26 of the General Corporation Law. While none of these sections can be of aid to the defendant Lucke, they do emphasize the policy of the law that the right to vote follows legal ownership. The right to vote stock is an essential attribute of the ownership of stock and may not be detracted from or amended and may not be made irrevocable by
In view of the conclusion reached, it is unnecessary to pass upon the misconduct of the said Lucke or any other questions involved.
There must be judgment for the plaintiffs.
Findings passed upon.
• Judgment accordingly.