169 Misc. 412 | N.Y. Sur. Ct. | 1938
Deceased by his will first directed payment of his debts and funeral expenses. Then he bequeathed to each of four nephews the sum of $5,000. Next he gave his shares of stock in Galligan & Wohl, Inc., to Peter Galligan provided the latter survived him. Otherwise his stock was to become “ a part of [the] residuary estate.” Thereafter he gave $5,000 each to Ross Galligan and Rev. William B. Martin. As to these gifts he said that if the
In a codicil the gift of stock previously made was revoked and deceased gave the following new directions: “ I give and bequeath all of my right, title and interest in and to the share of undivided profits and income and unpaid dividends to which I may be entitled as of the date of my death as a stockholder of Brenner, Joseph and White, Inc. (formerly known as Galligan & Wohl, Inc.) to Charles M. White, Joseph Whitehead, Herman Schoenman, Jack Zarawitz and Ira Sommer share and share alike. In the event that the said corporation shall declare a dividend as of a date subsequent to the date of my death out of income earned by the said corporation prior to the date of my death, then in that event, the aforesaid beneficiaries shall be entitled to have the said dividend prorated as of the date of my death * * *. -Subject to the foregoing gift and bequest, I direct that all of the stock, which I may own at the time of my death, of the corporation now known as Brenner, Joseph & White, Inc. shall become a part of my residuary estate.”
Brenner, Joseph and White, Inc., is a corporation, the capital stock of which consists of 250 shares having a par value of $100 per share. Deceased owned fifty per cent of these shares. No relevant dividend thereon had been declared prior to his death on January 1, 1937. The corporation had set up a surplus of $34,878.02 as of January 1, 1937, the date of deceased’s death. On April 15, 1937, it declared a dividend in that amount and paid fifty per cent thereof ($17,439.01) to the executors. Thereafter on May 1, 1937, the stock of deceased was sold by the executors at par, namely, for the sum of $12,500.
The twelve briefs filed by parties in interest present four questions: (1) Could the testator effect a separation between his interest in undeclared profits of the corporation and his interest in the capital of the corporation; (2) assuming that, in general, such a separation was legally possible, did the arrangement here attempted offend any rule of law, notably section 11 of the Personal Property Law; (3) assuming validity of this specific separation, is the gift of the profits a specific, a demonstrative or a general legacy; (4) whether the separation is valid or invalid, is the gift of the stock to the residuary estate a specific legacy and in consequence is the stock available either for commissions to the executors or to enable complete payment of the general legacies which must suffer abatement unless paid in part from the stock values?
The father of deceased who would take as distributee such property as might pass in intestacy argues for a different result. His position is that deceased could lawfully discriminate the undivided profits from the capital values represented by the stock, but that the legacy thereof, not vesting within a time legal under the statute, was void. He argues that the failure of the gift for the latter reason leaves the property in question undisposed of, with the result that it is receivable by him in his capacity as distributee.
The argument of the residuary legatees that the profits of a corporation are not property of shareholders prior to the declaration of a dividend and that the right to dividends to be declared in the future passes in a transfer as an incident of title to the stock is correct as a statement of a general principle. (Matter of Kernochan, 104 N. Y. 618, 624, 625.) This principle is illustrated in Hyatt v. Allen (56 N. Y. 553) where by a contract dated August 11, 1871, plaintiff transferred to defendant twenty shares of stock subject to the condition that “ all profits and dividends of and upon the stock ” up to January 1, 1872, belonged to plaintiff. It was held that a dividend declared April 9, 1872, though it included earnings of the corporation prior to January 1, 1872, belonged wholly to defendant. The court said (p. 556): “ It is conceded that the plaintiffs are not entitled to recover anything by force of the word dividends contained in the agreement. This word * * * indicates corporate funds * * *. The defendant agreed that dividends to the 1st of January, 1872, should be paid to the plaintiffs. As no declaration of a dividend was made until April 9, 1872, the defendant incurred no liability under this part of the agreement.”
A stockholder, holding a certificate of stock, possesses merely a piece of paper which is the symbol of a collection of rights which he has toward certain earnings and capital all of which is owned by the corporation. Not only does the corporation own its earnings
The objection that he could not sell, assign or retain future dividends separate from capital values on the ground that so far as the undivided earnings are concerned there is no subject-matter for such a transaction is an objection predicated on the fallacy that as to the corporate capital symbolized by a share of stock the holder has a more direct ownership than he enjoys in respect of undivided profits. The fallacy is illustrated by the complete separation of the legal title to shares of stock from the enjoyment of powers in relation thereto. In Onondaga Trust & Deposit Co. v. Price (87 N. Y. 542, 547, 549), a case here directly in point, deceased gave certain shares of stock to a beneficiary and empowered his executors to collect the dividends. The argument was made that the power to collect dividends imported title to the shares. In rejecting this contention the court said: “ Subject to the power given to the executors the property in the shares was vested in her * * *. A power to collect dividends on shares of stock in an incorporated company may well he lodged with one person while the title to the stock is in another * * *. The executors had the authority given them by the will to collect the dividends for Lilla L. White. This power they might protect, but the shares themselves were hers, and the executors had no power to represent her in disposing of them by transfer.” (Italics supplied.)
Now in the present case the legal title to deceased’s shares of stock is in either the residuary legatees or the executors contingent upon whether the gift of the shares was or was not a specific legacy — a matter dealt with hereinafter. In either event the holder of the legal title could alienate the shares of stock at will subject only to the interests of the five named persons who were to have the earnings of the corporation up to the date of death of deceased. These five beneficiaries obtained from testator special “ beneficial ” powers within the meaning of section 136 of the Real Property Law (applicable also to personalty, Cutting v. Cutting, 86 N. Y.
No special words are required to create a power. Here the legatees are empowered effectively to claim from the first post mortem dividend declared by the corporation that sum which represents the earnings of the corporation up to the date fixed by deceased. It has been shown that such a beneficial power can co-exist with the vesting of complete legal title to the shares in some one other than the donee of the power.
The power is not void because its execution is not measured by lives in being. There is no requirement that the execution of a power must take place within a time period measured by such a criterion. The relevant statute is section 178 of the Real Property Law (applicable also to personalty, Matter of Pilsbury, 50 Misc. 367; affd., 113 App. Div. 893; affd., 186 N. Y. 545) which provides hat “ The period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the creation of the power.”
This language was under examination in Blanchard v. Blanchard (4 Hun, 287, 290, 291; affd., without opinion, 70 N. Y. 615) where a testator had given his executor a power of sale to be exercised within two years after the lapse of a term of years (a chattel real) given by deceased to his wife and children. Speaking of the statute the court said: “ There is not to be found * * * any restriction respecting the time within which a power must be executed, although it does provide a limitation of the period during which the absolute right of alienation may be suspended by an instrument in execution of a power * * *. Before execution, the power is a lien or charge upon the lands, and has no greater effect upon the interests of heirs and devisees than a mortgage made by the testator * * * the absolute right of alienation of the fee is not affected thereby.” And the court significantly added (p. 291) that “ The statute does not aim to do anything more than to prevent the inalienability of estates beyond the prescribed limit. It has not sought to limit the duration of a lien or incumbrance thereon.”
The five individuals here named as donees of a special beneficial power stand as incumbrancers of the stock of deceased. The holder of the legal title to the shares was free to sell his interest and the donees of the power could divest themselves by assignment or otherwise of their interest. Together the holder of the legal title and the donees of the power could at any time have sold the stock free of every incumbrance. Since the “ statutory test of what
(namely) that it occurs only when there are no persons in being by whom an absolute estate in possession can be conveyed' ’ (Sawyer v. Cubby, 146 N. Y. 192, 196) is not here met, the plan of the testator does not offend the rule against suspension of absolute ownership.
It remains to be determined whether the gift of the stock to the residuary estate was a specific legacy to the twelve residuary legatees. “ Whether a legacy shall be considered specific depends upon the intention of the testator or testatrix, to be derived from the language used in the bequest, construed in the light thrown upon it by all the other provisions of the will.” (Davis v. Crandall, 101 N. Y. 311, 319.) Applying this test the court found in Matter of Security Trust Co. (221 N. Y. 215), on which the residuary legatees rely, that where a deceased gave his stock in a close corporation to relatives and employees by name and further directed that his debts should be discharged if possible from other assets, the legacies of the stock were specific. It is obvious that the present case differs from that situation. A situation more nearly related to the problem now before the court arose in Matter of Title Guarantee & Trust Co. (195 N. Y. 339, 344, 345). There a deceased directed that when certain trusts terminated the principal should “ be paid into and form a part of [his] residuary estate hereafter disposed of.” He then gave his residuary estate to three charities, two nephews and a brother. Funds were insufficient to pay prior general legacies in full. The question, therefore, was whether the trust principal was available to supply the deficiencies of assets for discharge of the general legacies or whether it should go straight to the residuary legatees thus compelling abatement of the general legacies. The court said:
“ It should be assumed that the testator in framing his testamentary scheme contemplated that his property was sufficient in amount to carry it out in all details. It seems perfectly clear that the testator never anticipated that the placing of these amounts in the residuary estate would, in case of insufficient assets, lead to the abatement of general legacies and the partial destruction of his main testamentary scheme,
“ We are of the opinion that, considering the whole will, it was the clear intention of the testator to treat the trust fund * * * as a part of the * * * residue * * * after the payment of general legacies in full. There could be no rest, residue and remainder of his estate — no real residuary fund — until that was done.”
The statutes and authorities discussed in this opinion require that the four questions formulated by the parties be answered by stating, as to the first, that deceased could legally effect a separation between his interest in the undeclared profits of the corporation of which he was a shareholder and his interest in the capital of the said corporation; as to the second, that the method he adopted to accomplish such a separation was entirely valid; as to the third, that the gift to the beneficiaries, of the undivided profits was an effective demonstrative legacy; and as to the fourth, that the gift of the capital values involved was a general residuary legacy subject to the prior payment of general pecuniary legacies and constituting a basis for executorial commissions.
The rulings here made require that the objections to the account filed by the Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children be overruled. All objections filed by Trudeau Sanatorium are likewise overruled except the fourth. This objection complains of the inclusion as a, principal charge in the account of an item of $1,353.86 described as having been paid to the Collector of Internal Revenue as an income tax. The stipulated facts show that this tax was imposed on the theory that the dividend declared on the shares of Brenner, Joseph & White, Inc., constituted income to the estate. The executors had correctly dealt with the receipts on account of the shares (both dividend and sale price) in the capital account. This course of dealing with the dividend was accepted as correct by the State Tax Department. The determination reached by the Collector of Internal Revenue seems plainly erroneous but this cotut has no power to correct the error. The executors had no choice but to make the payment out of the principal account since there were no other funds with which to pay. On the stipulated facts and on the ruling now made that the dividend passed to the five legatees named in the codicil the executors are directed to reimburse the principal account out of the dividend proceeds for the amount thus deducted erroneously by the Collector of Internal Revenue as a tax on such proceeds. The balance of the dividend only is payable to the legatees. The executors are directed to assign to the legatees all their rights of recovery of the tax so collected. The legatees must pursue their remedies if any in another forum.
Submit, on notice, decree settling the account and construing the will in conformity herewith.