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Opinion of the Court.
harmless and inoperative error not to be noticed collaterally. The only question that could arise would be as to the proper apportionment of the proceeds between the mother and the wards. But this question could only arise after the sale, and would not affect the transfer of title.” 5 Mackey, 227.
The petition and the order of the orphans' court thereon, fairly and reasonably construed, show that a sale of the infants' interest in the real estate under the will of their father was prayed for and ordered as necessary for their maintenance and education. So far as concerned the interest of the infants, therefore, the court had before it everything that was necessary to support its jurisdiction. In this form of proceeding, the guardian sufficiently and fully represented the infants, and no notice to them was required by the statute of Maryland or by any general rule of law. The want of proof of such notice, any
record of the evidence on which the orphans' court proceeded in making the order, or the chancery court in approving it, or of any subsequent accounting by the guardian for the proceeds of the sale, is immaterial. The orders of those courts within their jurisdiction were conclusive proof in favor of the purchaser and grantee at the sale, and cannot be collaterally impeached on any such ground. Thompson v. Tolmie, 2 Pet. 157; Grignon v. Astor, 2 How. 319; Comstock V. Crawford, 3 Wall. 396; McVitt v. Turner, 16 Wall. 352; Mohr v. Manierre, 101 U. S. 417.
The cases, on which the plaintiff relies, of Bank of United States v. Ritchie, 8 Pet. 128, and Hunter v. Hatton, 4 Gill, 115, 124, were wholly different. Both were cases of decrees in equity upon suits inter partes in the ordinary form. In the one case, the decree was directly attacked by bill of review, in the nature of a writ of error; and in the other case, a notice required by express statute had not been given.
Statement of the Case.
GIBBONS v. MAHON.
APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
No. 16. Argued December 19, 20, 1888. – Decided May 19, 1890.
Under a will bequeathing stock in a corporation and government bonds, in
trust to pay " the dividends of said stock and the interest of said bonds as they accrue” to a daughter of the testator “during her lifetime, without percentage of commission or diminution of principal,” and directing that upon her death “ the said stocks, bonds and income shall revert to the estate” of the trustee, “ without incumbrance or impeachment of waste," a stock dividend declared by a corporation which from time to time, before and after the death of the testator, has invested accumulated earnings in its permanent works and plant, and which, since his death, has been authorized by statute to increase its capital stock, is an accretion to capital, and the income thereof only is payable to the tenant for life.
This was a bill in equity by Mary Ann Gibbons against Jane Owen Mahon to compel the transfer to the plaintiff of shares in the Washington Gaslight Company held by the defendant as trustee under the will of Ann W. Smith. The case was heard upon bill and answer, by which, and by the acts of Congress concerning that company, the facts appeared to be as follows:
Mrs. Smith, a widow, and the mother of both parties to this suit, died March 26, 1865, owning two hundred and eighty shares in that company, and leaving a last will, dated February 11, 1865, and admitted to probate April 8, 1865, containing the following bequest :
“I hereby give, devise and bequeath to my daughter, Jane Owen Mahon, wife of David W. Mahon, of the city of Washington aforesaid, and to her heirs and assigns, two hundred and eighty shares of stock of the Washington Gaslight Company, also forty-five shares of stock of the Franklin Insurance Company, both in the city of Washington aforesaid ; also eight thousand five hundred dollars in government bonds of the government of the United States of America; said stock and bonds or any portion of them remaining at my death a
Statement of the Case.
part of my said estate ; to have and to hold the same in and upon the trusts and provisions following: That is to say, in trust for the advantage and behoof of my said daughter, Mary Ann Gibbons; and that after my decease the said Jane Owen Mahon, her heirs and assigns, shall cause the dividends of said stock and the interest of said bonds as they accrue to be paid to my said daughter, Mary Ann Gibbons, during her lifetime, without percentage of commission or diminution of principal; and in case of the death of the said Mary Ann Gibbons, then the said stocks, bonds and income shall revert to the estate of my said daughter, Jane Owen Mahon, without incumbrance or impeachment of waste."
The Washington Gaslight Company was incorporated by the act of Congress of July 8, 1848, c. 96, with a capital of $50,000, divided into shares of $20 each. 9 Stat. 722. It was authorized to increase its capital stock to $350,000 by the act of August 2, 1852, c. 79, and to $500,000 by the act of January 3, 1855, c. 22. 10 Stat. 734, 835. At the death of the testatrix, the capital stock amounted to $500,000, consisting of 25,000 shares of $20 each. By the act of May 24, 1566, c. 97, the capital stock was increased to $1,000,000. 14 Stat. 53.
The company from time to time declared and paid dividends in money upon its stock, and such dividends were paid by the defendant to the plaintiff.
Before and after the death of Mrs. Smith, and before and after the passage of the act of 1866, and before November 1, 1868, the company from time to time invested portions of its net earnings, income and profits in the enlargement and extension of its permanent works and plant employed in its legitimate business under its charter; and the actual cost of its works and plant, as shown by its construction account, amounted on January 1, 1865, to $842,623.02; on January 1, 1866, to $892,224.08; on January 1, 1867, to $935,039.55; on January 1, 1868, to $963,803.37; on July 1, 1868, to $988,914.84; and on January 1, 1969, to $1,039,287.17; and amounted, in fact, at the time of the passage of the act of 1866, to not less than $900,000, and on October 1, 1868, to more than $1,000,000.
Argument for Appellant.
On November 1, 1868, the board of directors of the company adopted the following resolution : “Whereas the construction account of this company exceeds one million of dollars, and as the capital of the company has been increased by an act of Congress to one million of dollars, therefore be it resolved, that the increased stock be awarded among the stockholders, share for share, as they stood on the first of October, 1868.”
On September 29, 1868, the defendant surrendered to the company the certificate for the two hundred and eighty shares mentioned in Mrs. Smith's will, and those shares were transferred on the books of the company to the name of the defendant, as trustee; and on November 17, 1868, the company made out and delivered to the defendant, as trustee, a certificate for the five hundred and sixty shares.
The defendant paid to the plaintiff from time to time the dividends afterwards declared on the five hundred and sixty shares, but never transferred to her the two hundred and eighty new shares.
The court dismissed the bill, and delivered an opinion reported in 4 Mackey, 130; and the plaintiff appealed to this court.
Mr. Henry E. Davis for appellant.
I. By the terms of Mrs. Smith's will, the appellee holds the original 280 shares “for the advantage and behoof” of the appellant, whom the will entitles to receive the dividends of those shares, as such dividends accrue, during her lifetime.
(a) What are dividends?
Whether the testator makes use of the expression, “dividends,” or “dividends and profits,” or “dividends, interest and profits,” or “interest, dividends, profits and proceeds," all of them come to the same thing, and furnish no circumstance to found a distinction upon. Hooper v. Rossiter, 1 McClel. 527, 536.
'Dividends," as used in the will, is unqualified ; it includes, in its technical sense, as well as in its ordinary and com
Argument for Appellant.
mon acceptation, all distributions to corporators of the profits of the corporation, whether such distributions are large or small, or whether made at long or short intervals, and without any regard to the manner or place of their declaration or mode of payment. Clarkson v. Clarkson, 18 Barb. 646, 657.
Dividends, accordingly, may take various forms. The ordinary form is the distribution of money to shareholders, but common forms are those known as stock and scrip dividends. If the definition given by the court in Clarkson v. Clarkson be accepted, as it should be, the question involved is readily answered : By the terms of that definition the appellant is clearly entitled to the 280 new shares; for —
(6) The new shares are in effect and in substance a stock dividend. Daland v. Williams, 101 Mass. 571, 574; Rand v. Ilubbell, 115 Mass. 461 ; Commonwealth v. Pittsburg, Fort Wayne &c. Railroad Co., 74 Penn. St. 83; Bailey v. Railroad Co., 22 Wall. 604, 635, 636.
(c) And the tenant for life of stock is entitled to all divi. dends declared thereon during his life, irrespective of the time when they were earned, provided only that they do not impair the capital of the trust fund. Bates v. Mackinley, 31 Beavan, 280; Richardson v. Richardson, 75 Maine, 570; Goodwin v. llardy, 57 Maine, 143; S. C. 99 Am. Dec. 758; Jermain v. Lake Shore Railroad Co., 91 N. Y. 483. And it is immaterial whether the dividend be in stock or in money ; any distinction on that score being, in the language of Lord Eldon, “too thin." Paris v. Paris, 10 Ves. 185.
II. But the question, though seemingly simple, has been much considered by courts, and an examination of the reported cases will reveal much difference upon the subject.
(a) The English adjudications. The leading cases on the subject in England are: Brander v. Brander, 4 Ves. 800; Irving v. Houston, 4 Paton, 521; Paris v. Paris, 10 Ves. 185; Clayton v. Gresham, 10 Ves. 288; Witts v. Steere, 13 Ves. 363; Barclay v. Jainewright, 14 Ves. 66; Price v. Anderson, 15 Sim. 473; Norris v. llarrison, 2 Madd. 268 ; Hooper v. Rossiter, 13 Price, 774; S. C. 1 McClel. 527; Cuming v. Boswell, 2 Jurist (N. S.) 1005; In re Barton's Trust, L. R. 5 Eq. 2.58.