Toronto Gen. Trusts Co. v. Chicago

• Decision Date: 07 October 1890
• Parties: TORONTO GENERAL TRUSTS CO. v. CHICAGO, B. & Q. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 37

25 N.E. 198

TORONTO GENERAL TRUSTS CO.

v.CHICAGO, B. & Q. R. CO. et al.

Court of Appeals of New York.

Oct. 7, 1890.

Appeal from supreme court, general term, first department.

On the 14th day of October, 1870, George H. Dunscomb, a resident of Coburg, in the province of Ontario, and dominion of Canada, made and executed his will disposing of his estate, in which he appointed his wife, Harrietta Catharine Dunscomb, and his brother, John William Dunscomb, executors thereof, and afterwards, on the same day, he executed a codicil to his will as follows: ‘I, George Hoyles Dunscomb, in the within will mentioned, declare this to be a codicil to my last will and testament. In the event of my having issue by my wife, Harrietta Catharine Dunscomb, I give, devise, and bequeath to my said wife, for the term of her natural life, the income from all the real and personal estate that I may die possessed of, and, on her death, to the child or children of our marriage now living, or who may be living at the time of my death, or born after my death, to be divided equally among them, share and share alike. The real and personal estate to be realized by my trustee, either at public or private sale, whichever may, in the discretion of the said trustee, be deemed best for the interest of my estate, at the death of my wife, and divided among the issue of my marriage as above directed. And I do appoint Charles H. Muirheid, of the city of Philadelphia, in the state of Pennsylvania, in the United States of America, as trustee under this my will, to collect and receive and pay over the income of the trust-estate therein comprised to my wife, if she survives me, during her life, and at her death to dispose of the said real and personal estate as above described. And I bequeath to the said Charles H. Muirheid, for his services as trustee, the usual commission.’ Thereafter the testator died, and his will was duly proved and admitted to probate in Canada, and, John W. Dunscomb having renounced as executor, letters testamentary were issued to Mrs. Dunscomb. At the time of the death of the testator he owned 161 shares of the capital stock of the Chicago, Burlington & Guincy Railroad Company, and Mrs. Dunscomb, as executrix, transferred the certificates of stock to Charles H. Muirheid, as trustee, and he surrendered the certificates thus transferred to him to the railroad company, and it, by the National Bank of Commerce, as its agent, issued new certificates of the stock to him, as trustee, for Mrs, Dunscomb, under the will of her husband. He subsequently sold the stock, and the railroad company, through its agent, issued new certificates of stock to the purchaser thereof, and Muirheid converted the proceeds to his own use, and subsequently died insolvent. Thereafter an action was commenced in the high court of justice, chancery division, in Canada, for the appointment of a successor in the trust of Muirheid, in which Mrs. Dunscomb was plaintiff, and the administrator of the estate of Charles H. Muirheid and George Hoyles Dunscomb, an infant son of the testator, were defendants. In that action the plaintiff asked for relief, that a new trustee be appointed in the place of Charles H. Muirheid, deceased, and that such new trustee be authorized to take, accept, and receive the securities, and have the management and control thereof, according to the provisions of the will and codicil of George H. Dunscomb, deceased, and to dispose of the income, revenue, dividends, and receipts thereof, in accordance therewith, and to carry the same into effect. The defendants in the action were properly served with process, and brought into court, and all parties being in court, and upon reading the pleadings and affidavits, and after hearing counsel, the court, on the 30th day of May, 1883, ordered and adjudged ‘that the Toronto General Trusts Company be, and they are hereby, appointed trustees to collect and get in the outstanding assets and estate of George Hoyles Dunscomb, deceased, the testator in the pleadings named, as they accrue due, and to pay any moneys, when collected, into court, to the credit of this cause, subject to further order;’ and it made provision for the costs of the parties to the action. The Toronto General Trusts Company was, by the Canadian law, authorized to act as trustee in such a case, and this action was commenced on the 6th day of July, 1883, and the foregoing facts, and other material facts, were alleged in the complaint; and the complaint prayed judgment ‘that the defendants be ordered to deliver and transfer to said plaintiff 295 shares of the said Chicago, Burlington & Quincy Railroad Company, and to issue to this plaintiff, as trustee as aforesaid, certificates of stock for said 295 shares, and to pay to said trustee all dividends on said shares since the alleged transfer thereof, with interest thereon from the date the same were payable. And plaintiff further prays that, if it is impossible for the said defendant companies to issue or transfer said stock to plaintiff, then, and in that case, the said companies be decreed to pay over to said plaintiff the value of said stock, together with all such dividends as aforesaid, and interest thereon, and that the plaintiff may have such other and further relief as in the premises may be just, besides the costs of this action.’ After the commencement of this action, on the 27th day of July, 1883, the parties to the Canadian action again appeared in the Canadian court, and the following order was entered: ‘This court doth order and adjudge that the Toronto General Trusts Company be, and they are hereby, appointed trustees of the estate of George Hoyles Dunscomb, deceased, the testator in the pleadings named, and that they do pay any moneys, when collected, into court, to the credit of this cause, subject to further order;’ and ‘that such amendment take effect as of the day of the date of the said judgment.’ This action was put at issue by answer on the part of the defendants, and was brought to trial at a special term of the court; and the court, after hearing the evidence produced by the parties,...