This is a bill in equity, brought by the National Savings & Trust Company against the appellants and certain others, to obtain a decree to permit it to resign a trust created by the deposit with it of 35,005 shares of the stock of the American Planograph Company. The stock was deposited under an agreement signed by George R. Cornwall, Marion Bryan, Charles T. Moore, and others, all of whom were made parties to the bill. The agreement contained the following provision:
'And it is hereby mutually agreed by and between all the parties hereto that on the receipt of the respective certificates of the said 35,005 shares of stock by the said trustee from the parties of the first part, the said trustee shall cause to be delivered to each of the parties of the first part who contribute toward said 35,005 shares an assignable trust certificate, which shall recite the number of shares so deposited by him, and state that the holder thereof is entitled to an equitable interest in the said 35,005 deposited shares equivalent to the number of shares so conveyed to and deposited with said trustee by each of said depositors respectively, and that the holder of said trust certificate or certificates has no right to vote on any such shares, but shall be entitled to receive his pro rata share of any dividends paid on the deposited stock, and that on and after March 31, 1911, each holder of such trust certificate will, on surrender thereof to the said trustee, be entitled to a certificate of an equal number of shares of stock of the American Planograph Company, and the trustee shall forthwith cause to be transferred on the books of the American Planograph Company the stock so held in trust, and deliver the certificates thereof to each of the holders of the said trust certificates.'
The agreement transferred the legal title to the trust company, and authorized it to vote the stock in the meeting of the planograph company, 'for such measures and such persons as the owners of a majority in amount of said trust certificates shall direct.' Also to collect dividends and pay them to the stockholders of the trust certificates. The agreement also contained the following provision: 'It is further agreed that in case the said trustee shall decline to accept or serve, or upon the resignation of said trustee during the term for which it is or may be appointed or elected, then the holders of a majority in amount of the trust certificates shall elect a trustee to fill the vacancy or vacancies.' It was further provided that the agreement should continue in force until April 26, 1911, but that the trust might be dissolved before that time by a vote of three fourths of the depositors.
It is alleged in the bill that the National Savings & Trust Company notified the depositors of its desire to resign its position as trustee, and that the depositors, by an instrument in writing, duly nominated and appointed the New York Trust Company of the city of New York and state of New York to be trustee in its place instead. And further, that the 22d of May, 1906, it received a written notice from the appellants, purporting to be issued by themselves and others, that the shares have been transferred to it 'by breach of trust on the part of the holders of certain of the shares,' who were trustees of the appellants, and that suit had been commenced by the beneficiaries of the trust in the state of West Virginia against the planograph company to determine, among other things, the ownership of such shares.
It is also alleged that two suits had been brought and were pending against the Savings & Trust Company and others in the supreme court of the district, respectively numbered 26,731, and 26,847, in which restraining orders were issued and were enforced, restraining it and the other defendants, until the court's further order, from removing or attempt to remove from the District of Columbia, and from selling, encumbering, or in any manner disposing of any of the shares of the stock of the planograph company in its possession or custody. And that by reason thereof, and of the written notice served upon it by the Moore company, it is 'advised that it may not transfer the said shares of stock in its possession to the said New York Trust Company as its successor in the said trust, without the risk of liability and loss, except through the aid of this court, and that it is entitled in its said capacity as a trustee to apply to this court for its instructions and its protection in the premises.'