
    Carrie A. Robinson et al., Plaintiffs, v. Charles Adams et al., Defendants.
    (Supreme Court, New. York Special Term,
    February, 1900.)
    Action at law to compel retransfer of stock, held for minors, and wrongfully diverted during minority by an executor — Title of minors under a direction “ to hold and invest” — Parties.
    A will, which directs executors “ to hold and invest ” the residuary shares of minors until majority, does not confer any legal title upon the latter until majority; and hence where, after the executors have apportioned certain stock of the testator among the distributive shares of the minors, an executor, for the purposes of her own speculations, in violation of the title of the executors, and during the minorities, diverts and sells the stock to third persons, the minors, after attaining majority, cannot maintain an action, based on strict title, to compel the third persons to retransfer the stock to them, as the plaintiffs had no title to it at the time when the executor wrongfully transferred it.
    The persons who hold the legal title to the stock must be made parties to such an action.
    Action to compel retransfer of certain stock and for an accounting of dividends.
    Edward B. Hill, for plaintiffs.
    George Richards and Selden Bacon, for defendants.
   Bischoff, J.

The foundation of the action is the defendants’ . acquirement of property owned by the plaintiffs, with knowledge, actual or imputed, of that ownership. No concession is made on account of payments by the defendants to the parties who had been, in possession of the stock, and the theory of the case is that any benefit possibly derived by the plaintiffs from those payments, or from acts of reparation by the parties originally chargeable with the diversion, is immaterial. Thus the case cannot be viewed as proceeding upon an injury to the plaintiffs’ beneficial interest in the property, hut must stand or fall with their actual title to these very shares at the time' when the transfer to the defendants took place.

At that time the plaintiffs were under the age of twenty-one years, and their title to the stock in suit, which formed a part of the residuary estate of their father, is asserted under the following provisions of his will, whereby the residuary estate is given, substantially “ to my wife Maria Robinson and to my children in being or hereafter born, to be divided among such of my said devisees and legatees as shall survive me, share and share alike.

“ In case any of my said children or the issue of any deceased. child shall, at the time of my death, be minors under the age of twenty-one years, then I authorize and direct my executors hereinafter named, and the survivor of them, and their and her successors to hold and invest the share of each of such minor or minors and to receive and collect the interest and income arising therefrom and to apply the same toward his, her or their education and support until each respectively shall reach the age of twenty-one years ”.

In the course of their division of the estate, to determine the distributive shares of the legatees, the executrices set apart the stock in question as the share of these plaintiffs, and it is to the wrongful use of the stock by one of the executrices, for the purposes of her financial speculations, that the present controversy is due.

There would seem to be no doubt of the correctness of the proposition that title to the personal property of a testator vests, upon his death, in his executors, and that a legatee has no complete title, even to a specific legacy, until the administration, either generally or as to the particular legacy, has been closed. 13 Am. & Eng. Ency. of Law, 151, 152; 2 Wms. Exrs. (7th ed.) 677-680; Hayes v. Hayes, 45 N. J. Eq. 461; Goodwin v. Jones, 3 Am. Dec. 173; Leamon v. McCublin, 82 Ill. 263.

With the assent of the executor to the legacy, the administration, so far, closes and the legatee’s title is perfected, but until this assent is given the legatee has no title, and possesses but an inchoate right, insufficient for the maintenance of an action to recover the legacy. 13 Am. & Eng. Ency. of Law, 152.

In the present case, then, these plaintiffs obtained no legal title to the stock by the mere force of the will and, in view of the provisions of that instrument, touching the disposition of their shares during minority, it is not possible to hold that the setting apart of the particular stock operated to vest the title, as upon an assent by the personal representatives.

The duties of the executrices, with respect to these legacies, were such that no relinquishment of their legal title, during the minority of the legatees, could result from the form in which the legacies were recognized or preserved. It was their duty to hold and invest ” the shares, and, of necessity, while this duty continued, the legal title remained in the persons thus empowered to “ invest.” To imply an assent to the vesting of the legacies from the mere recognition that they existed, would be to say that the executrices lost the power to invest the shares at the moment when the particular subject of investment was definitely ascertained, and that, when once the shares of the infants came into tangible existence, through an apportionment, the executrices lost title and hence could not carry out the testator’s instructions which in fact were directed exclusively to a period succeeding the apportionment.

The conclusion is that the will contained no legacies to these plaintiffs, to which, for the purpose of releasing the legal title, the executrices could assent during the period of the legatees’ minority, and that the transfer of the stock to the defendants was at most in violation of the title possessed by the executrices, who alone could maintain an action in this particular form.

The case of Onondaga Trust & Deposit Co. v. Price, 87 N. Y. 542, upon which support for the action is sought, had to do with the title to a specific legacy, to the vesting of which the executor had power to assent, and did assent. Upon the facts and the reasoning employed, the case cited may be viewed as an authority for the conclusion which I have reached, and, also, in support of my determination that the action cannot be maintained without the presence of the persons holding the legal title to the stock, as parties to the record.

There should be judgment for the dismissal of the complaint, with costs.

Complaint dismissed, with costs.  