
    (69 Hun, 332.)
    STEVENS et al. v. STEVENS et al.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    1. Powers of Executrix—Lease of Residuary Real Estate.
    Where the only duty of an executrix with reference to the residuary real estate is to divide it.into three equal parts, and convey them to trustees, though such real estate is charged with a trust legacy in her favor, and with other legacies, she has no right to collect rents from and lease the land, she having received out of the assets of the estate more than the interest on the balance due on the trust legacy.
    2. Same—Injunction.
    Plaintiffs, as trustees of one-third of the residuary real estate for the benefit of testator’s daughter, may maintain an action to have the liens and charges thereon cleared, and the residuary devise to them effectuated, and to enjoin the executrix from collecting rents from and leasing the same, in excess 'of her powers, as them right to one-third of the rents and profits follows from them right to one-third of the fee.
    3. Same—Interference with Executorial Powers.
    An objection to enjoining the executrix from leasing and collecting rents from residuary real estate devised in trust for legatees, that she is thereby in effect removed, is without force, as her executorial functions are not thereby interfered with.
    4. Same—Solvency of Executrix.
    The solvency of the executrix is immaterial to the right to such injunction.
    5. Same—Estoppel.
    Plaintiffs are not estopped to maintain, such an action by acquiescence in previous acts of the executrix of the same character.
    6. Res Adjudicata—Effect of- Pendency of Appeal.
    A judgment is conclusive upon the parties notwithstanding an appeal by both parties therefrom, and the giving by one of them of a stay bond.
    Appeal from special term, New York county.
    Action by Charles G. Stevens and another against Marietta R. Stevens, impleaded with others. From an order denying plaintiffs’ motion to continue an injunction, they appeal.
    Reversed.
    Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    George Zabriskie and John E. Burrill, for appellants.
    Hoadly, Lauterbach & Johnson, (George Hoadly, of counsel,) for respondent.
   BARRETT, J.

This action was brought by the plaintiffs, as trustees of Ellen F. Melchor, to procure a judgment by which sufficient of the residuary real estate devised to them and to certain other trustees by the eleventh, twelfth, and thirteenth clauses of the will of Paran Stevens, deceased, may be sold to satisfy the balance due on legacies charged on such residuary real estate, and that the remainder be adjudged to be vested in, and be conveyed by the executors and executrix to, the plaintiffs and such other trustees. Under the fifth clause of the will in question the sum of $1,000,000 was given to these same plaintiffs as a trust fund for the benefit of the testator’s wife, Marietta B. Stevens, and the residuary real estate was (as adjudged, by a former-decree of this court in what is called a “construction action”) charged with this trust legacy. In the year 1873 certain parcels of property were conveyed to Mrs. Stevens’ trustees, as part of the principal of the trust legacy; and since then, in an action-brought by these same trustees against all parties in interest, a decree has been made adjudging that but $265,297.19 remains due upon account of such principal. This decree was filed on the 5th day of November, 1891, and it establishes the fact that all interest on the unpaid balance of the trust legacy, down to the 1st day of May, 1887, had been fully paid to Mrs. Stevens, and that after such payment there remained in her hands, on the date mentioned, the sum of $83,611,79, received by her from the estate over and above all credits to which she was entitled. In supplementary complaint in the present action it is alleged that since the 1st day of May, 1887, Mrs. Stevens has collected and received from and out of the assets of the estate sums exceeding $93,000, which amount is more than sufficient to pay the interest from May 1, 1887, to December, 1891, upon the unpaid balance of this $1,000,000 trust legacy, and this averment is not denied in her answer to the supplemental complaint. It thus appears by the decree of this court and by the respondent’s admission that she has received more than the interest upon this unpaid balance down to the present time. By the decree of November 5, 1891, it is further adjudged that a legacy of $100,000, given to Mrs. Stevens by the first clause of her husband’s will, has been paid. Thus all legacies given to her by the will have been paid, except the balance of the trust legacy, already referred to.

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 unpaid balance of principal, there is no necessity for the application to this purpose of the rents and profits; for, by the decree already referred to, it was adjudged that the residuary real estate was worth at least the sum of $1,500,000 over and above the incumbrances thereon. There would certainly be no equity, therefore, in any action brought to enforce this charge, to impound the rents of property worth nearly five times as much as the lien. It seems clear, therefore, that neither Mrs. Stevens, as executrix, nor her individual trustees, have any right to interfere with the •rents and profits of the residuary real estate. The plaintiffs, as trustees of one-third of this residuary real estate,—for the testator’s daughter, Mrs. Melchor,—have properly brought this action to have the liens and charges thereon cleared off, and the •residuary devise to them effectuated. Their right to one-third of the rents and profits follows their right to one-third of the fee, in trust for Mrs. Melchor. They are therefore entitled to restrain the unauthorized collection of those rents, and also to restrain the unauthorized leasing of the property. The former act is an infringement of their rights as trustees, and of the rights of the other trustees; and the latter tends to embarrass the proceedings in the action, and to interfere with the sale upon Anal judgment. The plaintiffs’ acquiescence in Mrs. Stevens’ past acts does not alter the legal status. That acquiescence was possibly excusable while anything remained due for interest on the unpaid balance of the trust legacy; but, in view of the decree adjudging that all such interest was paid to May 1, 1887, and -that on that day Mrs. Stevens actually owed the estate $83,611.48; in view also of the admission, already pointed out, that she has ■since collected $93,000 of rents,—the plaintiffs were bound to revoke any passive authority which may have been acquired by their acquiescence. That they have' done by instituting this action, and by praying in their complaint for an injunction against renting or leasing the real estate, or collecting or receiving the •rents thereof. It would be grossly inequitable to deny their legal rights in the premises, now that the residuary estates are not in any wise indebted to Mrs. Stevens, and that the rents thereof are not needed to afford her full interest upon the entire trust legacy.

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 action under well-settled principles. See Wood v. Brown, 34 N. Y. 337. The second ground overlooked the consideration that the material facts in support of the injunction were adjudicated by the decree of November 5, 1891, already referred to. The respondent insists that this judgment should not be given conclusive force upon this motion, for the reason that both parties have appealed from it, and that the present respondent (appellant there) has given an undertaking to stay proceedings on her appeal therefrom. The effect of this undertaking, however, is only to stay the execution of the judgment. It cannot affect the findings as conclusive evidence against her, so long as they are unreversed. Nor does the counter appeal of the present plaintiffs alter the situation. This is not the case of a party accepting the fruit of a judgment, and then appealing therefrom. That principle has nothing to do with the force and effect of the judgment while unreversed. The question here is one of evidence, and there can be no doubt that, notwithstanding the appeal, both parties are now bound by the findings and adjudication. Nor are the general rules with regard to insolvency, irreparable injury, and loches here applicable. Whether Mrs. Stevens be solvent or insolvent, whether the plaintiffs have permitted her to infringe upon the rights of their cestuis que trustent or not, is quite immaterial. The question here is one of right, and the injunction should not be denied merely because the plaintiffs have failed to check Mrs. Stevens sooner, nor because she may be able ultimately to account for rents to which the trustees are, and to which she is not, entitled. The order should be reversed, and the injunction granted, with costs. All concur.  