
    Frederick W. Pearse, Respondent, v. National Lead Company, Appellant, Impleaded with George A. Pearse and Others, Respondents, and Charles B. Pearse and Edward Tillou, as Trustees under the Last Will and Testament of Augustus F. Pearse, Deceased, Defendants.
    
      (Supreme Court, App. Div., First Dept.,
    
    
      May 29, 1914.)
    Executors and Trustees—Will—Bequest of Stock in Trust with Power of Sale—Transfer by Executor without Joining Coexecutob ■—Forgery of Name of Coexecutor—When Corporation Becognizing Transfer Not Liable to Beneficiary.
    Where a will authorized the executors and trustees therein appointed to hold certain shares of stock in trust for the benefit of a son during his life, and at his death to distribute the same to his issue per stirpes, and gave to the executors power to sell the stock in their discretion and reinvest the proceeds, a single executor and trustee had power to transfer the stock by a proper indorsement without his coexecutor and trustee joining in the transfer.'
    Hence, a beneficiary under the trust cannot hold the corporation which issued the stock liable for the value thereof, even though one of the trustees, having executed a valid transfer on his own, part, forged the name of his coexecutor and trustee. One of two or more executors has power to dispose of the assets of the deceased even though his coexecutors do not join in the transfer.
    Appeal by the defendant, Rational Lead Company, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Rew York on the 10th day of December, 1913, upon the decision of the court after a trial at the Rew York Special Term.
    Lauier McKee [Sayre McLeod with him on the brief], for the appellant.
    I. Rew ton Williams, for the respondents.
   Dowling, J.

This is an appeal from a judgment directing that the defendant Rational Lead Company replace and deliver to the plaintiff and to the defendants George A. Pearse, Laura M. Gorman, Carrie V. Rooney and Edward IT. Pearse (being bis 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 Rational 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 Rew York county March 18, 1899, wherein he named as executors and trustees Charles B. Pearse, his son, and his friends Samuel Derichson 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 Rational Lead Company, to have and to hold the same during the life of hi? son George A. Pearse, “in trust, and with power to collect and receive the rents, issues and profits thereof, and to apply the said rents, issues and profits thereof to the use of the said George A. Pearse during his life,” and upon his death he gave, devised and bequeathed absolutely forever the said personal property (with other) “ to his issue in equal shares per stirpes and not per capita; and in case he shall die without leaving issue him surviving,” then “ to such of my issue as shall then be living in equal shares, the issue of a deceased child in every case to take the share which the parent-would have taken if living.” By the 18th clause of said will power was given the executors to retain any stocks, bonds or other investments held by the testator at the time of his decease, or to change the same at their discretion, and to invest the proceeds of any real or personal property that might be sold by them. Bv the 19th clause of the will the executors were given “ full power and authority to sell and convey and convert into money the real and personal property given and devised to them in trust, or any part thereof, at such times and in such manner and for such prices as they shall deem wise and advantageous for the purposes of the respective trusts and the execution of all the provisions of this will.”

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 be 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: “ That they • [i. e.j the executors] continue to execute the trusts created by the will in pursuance of the directions contained in the will and according to law during the respective terms thereof, as provided by the will.” Nowhere in this decree, however, is there any direct provision by which the executors are discharged or by which they are instructed to pay or turn over to themselves as trustees any funds of the estate. Nor would even such a provision have operated to absolutely terminate the executorial functions, nor done more than to discharge them pro tanto. (Mahoney v. Bernhard, 45 App. Div. 499; affd., 169 N. Y. 589.) On March 31, 1899, the National Lead Company had been notified by Edward Tillou, as executor, to pay all dividends upon the stock in question by check to the order of “ Est. of Augustus F. Pearse, c/o Charles B. Pearse, 407 Fourth Ave.,, New York City.” George A. Pearse, the son of the testator, and the life tenant under the will, died March 15, 1910. His heirs at law and next of kin were the plaintiff herein and1 his four brothers and sisters. These remaindermen' on April ■ 5, 1910, joined in a written demand that the executors and trustees of their grandfather’s estate deliver to them within two-days the personal property which was subject to the trust herein-before referred to including the shares of stoek'in the defendant company. On May 7, 1910, the attorney for the remaindermen, together with Charles B. Pearse, the attorneys for his coexecutor and trustee, and others, met at the office of the Lincoln Trust Company, and there examined the securities belonging to the estate, when they discovered that the certificates representing the National Lead Company stock were not in the possession of the executors, and they were then informed by Charles B. Pearse that he had sold both the common and preferred shares. The record discloses that these securities had been sold as far back as 1907 and 1908. On September 13, 1907, the firm of Winslow, Lanier & Co. had paid for part of these shares $2,540.83 by check made to the order of Charles B. Pearse, executor of the esta.te of Augustus F. Pearse, deceased, which was paid in due course, and was indorsed by Est. Augustus F. Pearse, deceased, by Charles B. Pearse, Executor,” and by Charles B. Pearse, individually. On May 21', 1908, Winslow, Lanier & Co. had paid for the remainder of the stock $1,670.08 by check to the order of the estate of Augustus F. Pearse, which was paid in due course and bore the indorsements, “ Estate Augustus F. Pearse, by Charles B. Pearse, Executor,” and “ Charles B. Pearse.” It now appears that the two certificates representing the stock standing in the name' of Augustus F. Pearse and thus sold to Winslow, Lanier & Co., had, at the time of the two sales referred to, been indorsed for transfer in the name of the “ Estate of Augustus F. Pearse, by Charles B.. Pearse, executor,” and “ Edward Tillou, executor,” both transfers purporting to be acknowledged, one before a notary public,, the other before a commissioner of deeds: It sufficiently appears, as well, that the signature “ Edward Tillou, executor,”' to both of said indorsements on the certificates of stock was a forgery, and that in fact they had been signed by Charles B. Pearse, executor, alone. It is the contention of the plaintiff that at the time of these transfers Charles B. Pearse and Edward Tillou were acting as trustees in respect to this stock,, and that as the defendant had notice of the trust by reason of the deposit with it of a certificate showing the appointment of the executors and of a certified copy of the will of the testator, it should not have recognized any attempted transfer by the executors as such, but should have declined to issue new certificates save upon the signature of the trustees.

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. Rot only conceivable after a .careful and impartial reading of the record. To permit the •verdict to stand, which is clearly against the weight of evidence both as to the negligence of the defendant and the freedom from contributory negligence on the part of the plaintiff, would result in great injustice to the defendant.

Defendant’s motions to set aside the verdict and for a new •'trial are, therefore, gránted.

■ Verdict to set aside and a. new trial granted. Exceptions thereto to plaintiff. Thirty days’ stay of execution, sixty days to make and serve case, granted to plaintiff.  