Opinion on the Merits
Thе suit is brought, to recover dividends for many years on thirty-six shares of stock in thе defendant company.
The ownership of the stock by the decedent is fully proved, and it is also proved that the dividends have been declared, have never been paid, and stand as due on the books of the company.
The prescription of three and of ten years is pleaded.
Dividends on stock are, like irregular dеposits of money in a bank, payable only on demand, and until demаnd and refusal, prescription does not begin to run against, the person entitled. De St. Romes vs. Levee, 20 Ann. 381; Brown vs. Pike, 34 Ann. 576; State vs. R. R. Co., 6 Gill (Md.) 363; R. R. Co. vs. Hickman, 28 Penn. St. 329; Bank vs. Gray, 2 S. W. Rep. (Ky.) 329.
The defendant finally invokes the provision of its chаrter passed iu 1882 declaring: “Any dividend not called for within three years from the date of its being made payable shall revert to the company. ”
Defendant is, in effect, the successor of a former сorporation bearing the same name whose charter expired in 1883. The stock of the new company was issued to the old сompany and distributed amongst its stockholders in lieu of their stock in the lаtter, and the new company assumed all the debts and obligations of the old of whatsoever nature.
The provision above quotеd was not contained in the charter of the old company, аnd, of course, the new company could not destroy, abridge or forfeit rights acquired by the stockholders of the old, without their consent. The provision, therefore, cannot affect dividends which had accrued under the old organization and which the new company bound itself to pay. .
It is claimed, ho wove, that as concerns thе dividends declared by the new company, the provision must be enforced.
Wo consider that the provision is binding on all stockholders of the old company who consented to the merging of their stoсk into the stock of the new company, from the time of such cоnsent, whether given expressly or by implication from acts adoрting the change.
Wo hold that by bringing this action for dividends declared by tlie nеw company, thejilaintiff, and those represented by him, give such consent, and will be bound hereafter by all valid provisions of the chartеr. But it fully appearing that they were ignorant of the existence оf their lights and of all the proceedings had, until shortly before the institution of tliis suit, we. cannot hold that this consent shall rotroact in such manner as to operate a forfeiture of rights of the existence оf which they were ignorant.
Judgment allirmod.
Lead Opinion
The opinion of the court was delivered hy
An exception was filed to the right of plаintiff to stand in judgment as testamentary executor on the grounds that the will undеr which he was appointed is invalid; that, if invalid, it is not shown that it has not beеn completely executed; and that, as there are no debts due by the succession, in this State, there is no necessity for an executor or administrator.
Tiie exception does not deny that the plaintiff has been regularly appointed and qualified as executor under the decree of a court of competent jurisdiction. Such a decree must be treated as prima facie valid; and even il' it were conceded, argv,mentí gratia, that defendant, a. mere debtor of the succession,- could attack it in this collаteral way. yet as the grounds of the attack are matters extraneous to the probate proceeding, the burden of prоof would lie on him, and he has offered no evidence whatever on the subject.