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Opinion of the Court.

tatrix the trustee should “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 stock, bonds and income shall revert to the estate of my said daughter, Jane Owen Mahon, without incumbrance or impeachment of waste.”

Upon the face of the will, it is manifest that the testatrix used the word “dividends” as having the same scope and meaning as "income" and "interest," and nothing more; and intended that the plaintiff, as equitable legatee for life, should take the income, and the income only, of the shares owned by the testatrix at the time of her death; and that the whole capital of those shares, unimpaired, should go to the defendant, as legatee in remainder.

The admitted facts present the following state of things : The accumulated earnings of the company were kept undivided, and actually added to the capital of the corporation, by investing them from time to time in its permanent works and plant, until the value of the works and plant amounted to a million dollars ; no owner of particular shares, or of any interest therein, had the right to compel the company to divide or apportion those earnings; and while they remained so undivided and invested, the capital stock of the company was increased to the same amount by the act of Congress of May 24, 1866. The greater part of the earnings in question had been so invested before the making of the will and the death of the testatrix in 1865, a still larger proportion before the passage of the act of Congress of 1866, and the whole before the resolution of the directors of November 1, 1868, under which the new shares were issued to the defendant, and in which it was recited, in accordance with the truth, that the construction account of the company exceeded $1,000,000, and that its capital had been increased by act of Congress to that amount, and it was therefore "resolved, that the increased stock be awarded among the stockholders, share for share, as they stood on the 1st of October, 1868.”

Opinion of the Court.

To hold the plaintiff to be entitled to the whole of the new shares issued to the defendant would be to allow the plaintiff the exclusive benefit of earnings, the greater part of which had accrued and bad been invested by the company as capital before her interest began, and would be contrary to all the authorities. To award to her a proportion of those shares, based upon an account of how much of those earnings actually accrued after the death of the testatrix, would be to substitute the estimate of the court for the discretion of the corporation, lawfully exercised through its directors, and would be open to the practical inconveniences already stated.

The resolution is clearly an apportionment of the new shares as representing capital, and not a distribution or division of income. As well observed by. Mr. Justice James, delivering the opinion of the court below: “ Certificates of stock are simply the representative of the interest which the stockholder has in the capital of the corporation. Before the issue of these two hundred and eighty new shares, this trustee held precisely the same interest in this increased plant in the capital of the corporation, that she held afterwards. She merely had a new representative of an interest that she already owned, and which was not increased by the issue of the new shares. A dividend is something with which the corporation parts, but it parted with nothing in issuing this new stock. It simply gave a new evidence of ownership which already existed. They were not in any sense, therefore, dividends for which this trustee had to account to the cestui que trust. She stood after the issue of the new shares just as she had stood before; and the trustee was obliged to treat them just as she did, namely, as a part of the original, and to pay the dividends to the cestui que trust.4 Mackey, 136

Decree affirmed.

Mr. JUSTICE BREWER, not having been a member of the court when this case was argued, took no part in the decision.

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Hartranft v. Oliver, 125 U. S. 525, affirmed and applied to this case.

This case was submitted by the parties on a stipulation in which, after reciting the trial and judgment in the court below it was said:

"Now it is conceded by the Attorney General, in behalf of the defendant in error, that the facts in this cause, as shown by the plaintiffs' bill of exceptions, contained within the record on this appeal, duly filed in the office of the clerk of this court, are, in all substantial respects, the same as the facts upon which judgment was rendered for the plaintiffs in the court below in the cause llartranft v. Oliver, which was argued in this court March 22, 1888, and is reported in Vol. 125 of the United States Reports at page 525: that is to say:

“1. The plaintiffs herein imported white cotton goods into the port of New York. The vessel carrying the goods arrived at that port on the 30th day of June, 1883, and was immediately boarded by customs officers of the United States, who took into their custody all goods on board.

“ 2. The plaintiffs could not have obtained possession of their said goods from the said customs officers without a certain ' permit,' to be issued by the defendant after the goods were “entered' by the plaintiffs at the custom-house of the said port, and the goods could not be so entered there until after the vessel itself was entered or reported there.

“3. The plaintiffs had a clerk waiting at the said customhouse for the purpose of entering their said goods as soon as the vessel should be so entered or reported there on the said 30th day of June, 1883, but that the vessel was not so entered

1

SHERMAN V. ROBERTSON.

571

Opinion of the Court.

or reported there until at or about 2 o'clock P. M. of that day, and that it was then too late to enter the said goods in the usual course of business within that day in the said customhouse.

“4. The first day of July, 1883, was a Sunday. The said goods were duly entered at the said custom-house on the second day of July, 1883, having remained meantime solely in the custody of the said customs officers on board the said vessel.

“5. The said goods were not in any public storehouse or bonded warehouse on the first day of July, 1883, otherwise than as hereinabove appears.

“6. The defendant, as collector of said port, levied customs duties upon plaintiffs' said goods, at the rates provided for by section 2504 of the Revised Statutes of the United States, amounting to $2754.41.

The plaintiffs objected and protested against such levy upon the ground that the levy should have been made under the act of Congress entitled . An act to reduce internal revenue taxation, and for other purposes,' approved March 3, 1883, under which last-mentioned act the duties upon the said goods would have amounted to $2179.59, but they paid the amount of the said levy of the defendant and duly brought this action to recover the difference or excess so paid, to wit, to recover $574.82.

“ And hereupon the counsel for both parties deem it not necessary to print the record on this appeal or to argue the appeal before the court, and the Attorney General, in behalf of the defendant, submits to the direction of the court upon the motion of plaintiffs' counsel for judgment.”

66

Mr. Waldo Hutchins and Mr. William Forse Scott for plaintiffs in error.

Mr. Solicitor General for defendant in error.

PER CURIAM. The judgment of the court below is Reversed with costs, on the authority of the decision of this

court in the case of Hartranft v. Oliver, (No. 190 of October term, 1887), 125 U. S. 525, and the cause is remanded with directions to enter judgment for the plaintiffs.

Statement of the Case.

INLAND AND SEABOARD COASTING COMPANY v.

TOLSON.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 532. Submitted December 23, 1889. – Decided January 6, 1890.

At a special term of the Supreme Court of the District of Columbia a judg.

ment was rendered in favor of the plaintiff against a sole defendant. The defendant appealed to the general term and gave sureties. The general term affirmed the judgment below, and entered judgment against the defendant and against the sureties. The defendant sued out a writ of error to this judgment without joining the sureties. The defendant in error moved to dismiss the writ for the non-joinder of the sureties, and the writ was accordingly dismissed. The counsel for the plaintiff in error then moved to rescind the judgment of dismissal, and to restore the case to the docket. Briefs being tiled on both sides; Held, that the motion should be granted, and the case should be restored to the docket.

This cause was first tried in the Supreme Court of the District of Columbia, at special term, where the following judgment was entered :

“Now, again, come here the parties aforesaid, in manner aforesaid, and the same jury that was respited yesterday, who, after the case is given them in charge, on their oath say that they find said issue in favor of the plaintiff, and assess his damages by reason of the premises at the sum of eight thousand dollars, besides costs; therefore it is considered that the plaintiff recover against said defendant eight thousand dollars for his damages in manner and form as aforesaid assessed and

for his costs of suit, and have execution thereof." An appeal from this judgment was taken to the general term by the defendant, the Inland and Seaboard Coasting Company, and an undertaking given as provided by the rules of court, Henry A. Willard, John W. Thompson, Samuel Norment and J. H. Baxter being the sureties.

The court in general term thereupon entered judgment as follows:

“Now again come here as well the plaintiff as the defend

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