Hawke v. Hawke , 81 N.Y. Sup. Ct. 370 ( 1893 )

PER CURIAM.

We have grave doubts as to the propriety of granting the injunction herein, and are strongly disposed to reverse the order granting it; but there is a possibility that the plaintiff may be injured by so doing, and the rights of all parties, it seems tons, will be preserved by a modification of the injunction. It appears from the record before us that the property involved in this litigation amounts to about the sum of $350,000; $100,000 thereof being in personal property, and the remaining $250,000 being in realty. If the plaintiff succeeds in establishing the invalidity of Ms-father’s will, he will be entitled to one-fourth part of that estate. It will thus be seen that the realty affords abundant security for his-protection if it remains undisposed of or unincumbered. The injunction, therefore, is modified so as to restrain the defendants herein from conveying, disposing of, or incumbering any of the real estate of which the testator died possessed, and from conveying and delivering or passing over any of the said real estate to the devisees- or legatees named in the last will and testament of said testator; it being intended by this modification of the injunction to give the defendants entire control over the principal and interest of the personal property, and of the rents, incomes, and profits of the real estate; subject, of course, to their accounting for the same as the executors of the last will and testament of Edward H. Hawke, deceased, in the event of the plaintiff failing in the action, or of ac~ counting to the plaintiff for his share thereof in the event of Ms succeeding in establishing the invalidity of said will; and, as so modified, the injunction and order appealed from is affirmed, with $10 costs and printing and other disbursements to the appellants. All ■concur.