171 Misc. 219 | N.Y. Sur. Ct. | 1939
By their petition the trustees acting under the will of deceased ask construction of his will in respect of the operation of paragraph tenth thereof. The petition details certain transactions in connection with the shares and the dividends on shares of a company in which deceased had a substantial interest, such shares being a part of the corpus of the trust. Advice is asked whether the tentative program of the trustees for the disposition
When deceased died on October 6, 1920, the corporation in question had an authorized capital of 20,000 shares of preferred stock with a par value of $100 per share and had 50,000 shares of no par common stock having a stated value of twenty dollars per share. Thus the total capital stood at $3,000,000. In this corporation capital deceased owned 2,500 shares of preferred and 12,500 shares of common stock —■ of the total face and stated value of $500,000. On February 1, 1921, after deceased’s death, the corporation increased its capital by $250,000, represented by 2,500 additional preferred shares. The directors declared a five-dollar dividend on the common stock after this increase and made the dividend payable in the new preferred shares. On August 9,1921, the capital again was increased by an additional $250,000, represented by an additional issue of 2,500 shares of preferred stock. Another dividend of five dollars per share was then declared on the common stock and was made payable in preferred shares. On November 1,1923, the capital, which then stood at $3,500,000, was increased to $4,000,000. The increase was represented by 5,000 new preferred shares. A dividend of ten dollars was then declared on the common shares and was made payable in the new preferred shares.
The 625 shares produced by the dividend declaration following the capital increase of February 1, 1921, the further 625 preferred shares produced by the dividend declaration following the capital increase of August 9, 1921, and the further 1,250 preferred shares produced by the dividend declaration following the capital increase of November 1, 1923, were all earmarked by the trustees as income to the income beneficiaries. The trustees continued to hold in the trust the original 2,500 shares of preferred stock and 12,500 shares of common stock. From and after the increases in capital the preferred shares held in the trust no longer represented a one-eighth interest in the total preferred share issue. After November 1, 1923, the trust shares represented only a one-twelfth interest in the whole preferred issue.
While the trustees report that their account for the period ending December 31,1928, was settled by a decree of this court on September 17, 1929, and while they assert that in the account so settled the dividends on common shares paid in preferred shares as described above were listed as the private property of the income beneficiaries, and while the trustees assert that their account so reporting the shares was approved in this respect, they, nevertheless, report these
The court holds that the decree of September 17,1929, approving the account for the period ending December 31, 1928, did not adjudicate the question now presented either as to the transactions antecedent December 31, 1928, or as to those since that date. It is unnecessary to go into the account of the executors-trustees for the period antecedent January 5, 1923 (the opening date of the account settled by the 1929 decree), because in the account for the period terminating December 31, 1928, the trustees report the receipt by them from the executors of the 1,250 shares of preferred stock resulting from the capital increases of 1921. The additional preferred shares were received by the trustees themselves after November 1, 1923, and within the period for which they were accounting in their prior account as trustees.
The present account and the facts stipulated before the court show that the preferred shares ceased to pay dividends after November, 1932. Just prior to the May, 1932, quarterly dividend date on the preferred shares the stated value of the no par common shares was reduced from twenty dollars to five dollars per share. The account shows that the May, 1932, dividend on the preferred was paid, that the August, 1932, dividend was omitted and that the November, 1932, dividend was paid. The amount paid during
The facts stipulated show that in December, 1936, the capital of the corporation was comprised of 30,000 preferred shares, having a par value of $100 per share, and of 50,000 common shares, having a then stated value of five dollars per share. The capital stock liability, therefore, was $3,250,000. At December 31, 1935, this capital had become impaired to the extent of $897,372.44. Further losses during the remainder of the fiscal year which ended January 14, 1936, increased the deficit by $36,731.13. In the remainder of the year 1936 there was an operating profit of $197,673.84, which, after offsetting adjustments, left a net profit of $77,806.08 for the fiscal year ending January 14, 1937. On December 28, 1936, a dividend of $2.25 per share was declared on the outstanding preferred share issue. The question presented here is the allocation of that dividend between principal and income account. In order to make possible the declaration of this dividend the corporate action next described had to be taken.
On December 22, 1936, a stockholders’ meeting authorized the change of the preferred shares of the corporation from par value shares to shares without par value, reduced the capital of the corporation from $3,250,000 to $1,750,000, and authorized the directors to fix the stated value of the no par preferred shares. The trustees voted the trust shares in favor of these changes. By appropriate resolutions the board of directors fixed the stated value of the no par preferred shares at fifty dollars per share. Thus the corporate capital of $1,750,000 was represented by 30,000 preferred shares having the stated value of fifty dollars per share and 50,000 common shares having the stated value of five dollars per share. The change from par to no par and the reduction in stated value of the no par preferred shares did not change the provision for accumulation of dividends on the preferred shares at the rate of seven dollars per share per annum nor did it change the provision that the shares were to receive in liquidation $100 per share prior to any payment on common shares.
Taking the figures as they stood on the books at the end of the prior fiscal year — January 14, 1936 — the capital impairment was $934,103.57. The capital reduction effected by the resolutions of December 22, 1936, operated to reduce the capital stock liability by $1,500,000, and thus on the books there was set up a surplus of $565,896.43. Diming the year 1936 there was a gross operating profit which left, after adjustments, a net profit of $77,806.08 for the fiscal year ending January 14,1937. That profit was insufficient to make up the capital impairment existing prior to December 22, 1936. The dividend of two dollars and twenty-five cents on the preferred shares could not have been paid validly except for the reduction in capital effected December 22, 1936.
The question presented on this accounting is whether the payment of this dividend to the life beneficiary by the trustees is justified under the will of deceased. Paragraph tenth of the will provides in part: “ I further direct my executors and trustees to treat all dividends and all rights to subscribe for additional stock as entirely income, regardless of the fact that such dividends and rights may possibly encroach upon the principal of the trusts herein created.” The only facts which in any wise illuminate the terms of the will are the fact that the corporation whose shares produced the dividend is a New York corporation, the fact that deceased held a large number of shares in the corporation and the fact that such shares represented a substantial portion of his estate. The terms of the will are to be considered in their ordinary sense and meaning. The question is what the words “ all dividends ” mean in the case of this will. ¡
Deceased died in 1920. His will shows evidence of having been the work of a skilled draftsman. The law of the State was and is that dividends can be paid by a corporation only if a surplus exists sufficient to cover the dividend declared. In the case of trust administrations the authorities were clear in 1920 that the trust:
“ There is, however, a distinction between earned surplus and contributed capital. Contributed capital is neither earnings nor increment, nor may it be included in ‘ income ’ when that term is used in a will and, if paid by way of dividends, current or otherwise, it belongs to corpus; if the ordinary dividend as above described is made up of earned surplus, no matter what its ramifications may be, it follows the rule announced in Waterhouse’s Estate (308 Penn. St. 422; 162 A. 295), and goes to life tenants.
“ The act of the corporate directors in reducing the number of shares of stock so as to produce a surplus would be an administrative act of the corporation and is an unusual circumstance when related to dividends. The fund produced from such procedure remains contributed capital and not earnings. Earned surplus of course stands on a different basis, it is the product of earnings, the fruits of contributed capital.
The determination here reached is applicable only to the particular dividend reported in the account now before the court. No ruling either way is made respecting the dispositions made by the trustees of earlier dividends. The dividends here in question are wholly capital of the trust and are to be so treated in the decree settling the account.
Submit, on notice, decree construing the will and settling the account accordingly.