The opinion of the court was delivered by: KALODNER
This is a suit in equity brought by the plaintiff, substituted trustee, against the defendant corporation, praying for a restoration of stock which is alleged to have been transferred by the prior trustee in violation of his trust.
From the evidence, and the stipulation filed by counsel, I make the following special findings of facts:
1. Plaintiff, the First National Bank of Biddeford, trustee under the will of Susan L. Thompson, deceased, is a corporation organized and chartered under the laws of the United States with its place of business at 208 Main Street, Biddeford, County of York and State of Maine.
2. The defendant is a corporation duly formed and organized under the laws of the States of Pennsylvania, Indiana and Illinois, with a place of business in the Broad Street Station Building, 1617 Pennsylvania Boulevard, Philadelphia, County of Philadelphia, and Commonwealth of Pennsylvania.
3. The amount involved in this controversy, exclusive of interest and costs, exceeds the sum of $3,000.
4. Susan L. Thompson, late of Kennebunk, Maine, died on February 2, 1930 leaving a will dated February 15, 1919, which said will provides, inter alia, as follows:
"Sixth: I give my twenty (20) shares of Guaranteed Stock of the Pittsburgh, Fort Wayne and Chicago Railroad and my four (4) shares of Common Stock of the Boston & Maine Railroad unto Perley Gardner, Esquire, of Exeter, New Hampshire, in trust, nevertheless for a period of ten years from my decease, the net income therefrom to be paid over to said Harry T. Burbank, and at the termination of said period I give the same unto said Harry T. Burbank absolutely in fee.
"If, however, said Harry die before me or before the lapse of said period of ten years, then said trust shall terminate and I give the same to his issue in fee, if there be any, and otherwise to my niece Olive T. Lunt and James L. Thompson or the survivor of them."
5. Harry T. Burbank, the nephew of said testatrix, mentioned in the said paragraph of her will, is now living and confined in the State Hospital for the Insane at Concord, New Hampshire.
6. Perley Gardner, the trustee mentioned in said paragraph of said will, declined to act as such trustee, whereupon the Probate Court for the County of York, Maine, on November 19, 1930, appointed Edwin C. Burbank, of Malden, County of Middlesex, Massachusetts, trustee under said will for the benefit of Harry T. Burbank and others.
7. A certificate of stock, Number A 7677, for twenty shares of the preferred capital stock of defendant company, dated January 23, 1931, was issued and delivered to the said "Edwin C. Burbank, Trustee under the will of Susan L. Thompson."
8. The said Edwin C. Burbank, trustee aforesaid, filed a petition of resignation as trustee under the will of Susan L. Thompson with the said Probate Court for the County of York, Maine, which resignation was dated April 12, 1934, and the said resignation was accepted by decree of the Probate Court of Maine on December 31, 1934.
9. The plaintiff, the First National Bank of Biddeford, was appointed trustee under the will of Susan L. Thompson of the estate given in trust for the benefit of Harry T. Burbank, formerly of Exeter in the County of Rockingham and State of New Hampshire, by the said Probate Court for the County of Work, Maine, by decree dated December 31, 1934.
10. Defendant's said stock certificate Number A 7677 sometime prior to October 24, 1934, was presented to defendant's transfer office in New York City to be transferred to the name of F.T. Sutton & Co., to permit the cestui que trust, Harry T. Burbank, to transfer the said twenty shares of stock in order to invest the proceeds in a business enterprise in which he was interested and such transfer was refused by defendant's transfer agent, whereupon the defendant cancelled said certificate Number A 7677 under date of October 24, 1934, and issued a new certificate, Number A 9803, for twenty shares of defendant's preferred stock, to "Edwin C. Burbank, Trustee under the will of Susan L. Thompson," under date of October 24, 1934.
11. Thereafter on December 18, 1934 said certificate Number A 9803, endorsed by Edwin C. Burbank, trustee under the will of Susan L. Thompson, with a power of attorney to transfer said shares to Weston & Co., brokers, was forwarded by a Boston broker to the defendant together with a certified copy of the will of Susan L. Thompson and a certified copy of the appointment of Edwin C. Burbank as trustee under said will.
12. Said certificate Number A 9803 was cancelled by the defendant on December 19, 1934 and on said date defendant issued in exchange therefor a new certificate for twenty shares of its preferred capital stock to Weston & Co.
13. The defendant refused written demands to reinstate the plaintiff on the books of the defendant corporation as a stockholder for twenty shares of preferred stock and for the payment of dividends payable between the date of ...