McHenry v. McHenry , 152 Ga. 105 ( 1921 )

Beck, P. J.

(After stating the foregoing facts.)

1. The first ground of the demurrer filed by Mrs. W. S. McHenry raises the question as to whether the superior court of Morgan County had jurisdiction of the defendant, the demur-rant contending that she was improperly sued in that county. This ground of the demurrer was properly overruled. The plaintiffs are asserting a common right against both defendants, that is, the right of the remaindermen to. have their interest declared in the described property and to have the property protected against waste. Section 5417 of the Civil Code provides that “ Generally all persons interested in the litigation should he parties to proceedings for equitable relief and § 5419. declares that “Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action.” While the case of Conley v. Buck, 100 Ga. 187 (28 S. E. 97), is itself based upon a different state of facts from those involved here, the discussion in that case of the question of multifariousness and the authorities there cited illustrate and justify the ruling which we have made, and render a discussion and citation of authorities unnecessary. See also the case of Blaisdell v. Bohr, 68 Ga. 56. As substantial relief was prayed ■ against one of the defendants residing in the county where the suit was brought, the court of that county had jurisdiction also of the codefendant.

2. Tbe ground of the demurrer raising the question as to the character of the written document which is the basis of the suit, the demurrant contending that it was testamentary in character and not shown to have been probated as required by law, was ■ also properly overruled. The instrument in question employs the language of a deed. It is recited that the grantor doth by the instrument “ give, grant, and convey ” to the named grantees certain property; and it is also declared that “in making this conveyance it is agreed by the said Marion McHenry [the grantor] and her said two brothers [the grantees] that she hereby reserves to herself the full and absolute right to use, receive, and appropriate all dividends that may be declared during her life upon the 12% shares of said stock [the property conveyed] in the same manner as she has heretofore done.” Elaborate argument is entirely unnecessary to show that the very material provision, the reservation of the right to receive and use the dividends during the life of the grantor, is entirely inconsistent with the idea that the instrument is testamentary in characher. Other features of the instrument might also be pointed out which bear out the conclusion here reached, but we think that unnecessary.

3. The grantees in this deed are estopped. from denying, as against the remaindermen, that the instrument was operative as ,a deed, on the ground that it conveyed a mere contingency and there is no provision as to the disposition of the property in case of the failure of the contingency contemplated. The deed itself was found among the papers, as the demurrant admits, of her husband, of whom she is the sole heir; and there are allegations to show that he, at the time of his death, was in possession of at least a part of the property conveyed by this deed; that there' was acceptance by the life-tenants of the interest in the property conveyed by the deed. '

4. The general demurrer was properly overruled. The allegations of the petition show' an interest in the remaindermen in at least a part of the property in controversy, which entitles them to the protection sought; and the allegations of the petition as amended are not open to the exception made in the special demurrers, that they are vague, uncertain, and insufficient. The character of the property, the way in which it was changed by substitution for other shares of stock than those which were originally held, and the reorganizations of companies which issued the shares of stock, the issuance of bonds, etc., and all the other material incidents in the history of the property sought to be impressed with the trust are set forth with sufficient clearness and exactness to enable the parties defendant and the court- to clearly understand the character of the property involved and the rights which the petitioners in the case insist that they have in the property. It may be that there are certain allegations, wherein certain claims are made in regard to the property, that are mere conclusions of the pleader and not statements of facts, but they are not of such materiality or weight as to require a reversal of the judgment because of the court’s refusal to strike those conclusions; and in most cases where these conclusions are stated as a part of the pleadings they aid in making clearer the plaintiffs’ contentions as to the rights which they pray the court to have ascertained and settled.

5. The property which was conveyed by the deed which we have heretofore considered was, as we have seen, 13% shares of the stock of the Elyton Land Co., standing 'at the time of the execution of the deed in the name of the grantor, Mrs. Bozeman, on the books of the company. Of this property, the shares of stock, W.- S. and John G. McHenry (Mrs. Bozeman having died in 1917, without leaving a child) became the life-tenants, and John G. became the sole life-tenant upon the death of his brother, W. S. McHenry, leaving no child. The rights of the life-tenant in the property are fixed and defined by our statute, which declares: “ The natural increase of the property belongs to the tenant for life. Any extraordinary accumulation of the corpus — such as issue of new stock upon the share of an incorporated or joint-stock company — -attaches to the corpus and goes with it to the remainderman.” Civil Code, § 3667. Had the property conveyed by the “deed remained in its original form, many of the questions presented in this record could not have arisen; but it did not. The Elyton Land Co. was reorganized; stock in other -companies was substituted wholly or in part for the original shares of stock. Divisions and distributions of funds arising from the assets of the corporation were made. Some of these distributions were unquestionably dividends paid over to and enjoyed by the grantor in the deed under the rights preserved in that instrument. Other distributions were made about which there is a contest here as to whether they were really dividends or a distribution of the corpus of the estate of the corporation. The correct decision of these questions depends upon an application of the law to the facts in the case. The law constituting the rule under which the question as to whether certain portions of the property in controversy should be deemed corpus or income has been declared in this State by a decision of this court. In the ease of Jackson v. Maddox, 136 Ga. 31 (70 S. E. 865, Ann. Cas. 1912B, 1216), Chief Justice Eish, speaking for the court, said: “There are two lines of authority on .the subject of whether shares so issued become part of the corpus, or whether they rank as dividends and belong to the life-tenant. One of these lines of authority will be found illustrated by the decisions of the Supreme Court of the United States, in Gibbons v. Mahon, 136 U. S. 549 (10 Sup. Ct. 1057, 34 L. ed. 525); and of the Supreme Court of Massachusetts in Minot v. Paine, 99 Mass. 101 (96 Am. D. 705). The other line may be represented by Earp’s Appeal, 28 Pa. 368; Pritchard v. Nashville Trust Co., 96 Tenn. 472 (36 S. W. 1064, 33 L. R. A. 856); Hite v. Hite, 93 Ky. 257 (20 S. W. 778, 19 L. R. A. 173, 40 Am. St. R. 189). When the law of this State was codified, in view of the older English cases and of such decisions as had then been made in America, one of these lines of authority had to be selected as containing the .correct rule. The codifiers in substance selected the first of the two rules mentioned above. As formulated in the present Code (1910), § 3667, the rule is thus stated: ‘ The natural increase of the property belongs to the tenant for life. Any extraordinary accumulation of the corpus — such as an issue of new stock upon the shares of an incorporated or joint-stock, company — attaches to the corpus and goes with it to the remainderman.’ ” In brief, it is here declared that our State by the statute quoted above has adopted what is known as the Massachusetts rule upon the subject under consideration. What is known as the Massachusetts rule is thus stated in 14 Corpus Juris, 831, § 1260: “The Massachusetts courts have adopted the rule that whether a dividend is to be regarded as income, and as such the property of the life-tenant, or as capital belonging to tlie person entitled to the remainder interest in the stock, is to be determined by the substance and intent of the action of the corporation in declaring the dividend; in other words, if the action of the corporation manifests, an intention, so far as it is concerned, no longer to treat its surplus profits as income, but, to the extent of the dividend, as a part of its permanent capital, the dividend, as between the life-tenant and the remainderman, is to be considered as a distribution of capital, and where the effect and intent of the declaration is a permanent separation of its surplus profits, to the amount of the dividend, from the capital used in its business, it is to be considered, as between such term holders, as income. The view taken by the Massachusetts courts has been followed in a number of jurisdictions; and in Georgia the substance of the rule has been enacted by statute. It follows that where this rule obtains, regardless of the time the profits out of which they are made accumulate or were earned, all stock dividends are to be considered as capital belonging to the remainderman, and all cash dividends are to be regarded as income belonging to the holder of the life term. However, if the action of the corporation in declaring a dividend amounts in substance to a declaration of a stock dividend, its character as a distribution of capital is not affected by the fact that the dividend is in form a cash dividend. But the fact that an increase of the capital stock of a corporation is voted the same day as a cash dividend, to which increase the stockholder is entitled to subscribe, does not impress the transaction with the character of a stock dividend, if the stockholder is entitled to receive his dividend and to use it as he sees fit, and is at liberty to dispose of his rights to subscribe for the new stock. And a dividend made payable in stock or in cash at the option of the stockholder is a cash dividend.” And we think that the court in rendering the judgment complained of here was right in applying the rule to the facts in this case in determining the rights of the parties. Hnder that rule the substitution of other stock and the distribution of such substituted stock to the holders of stock in the Elyton Land Co. in designated proportions brought the substituted stock within the rule here laid down and made it a part of the corpus of the estate, and it became impressed with the trust in favor of the remainderman. Such in character were the shares of stock of the Birmingham Trust & Savings Co., which the Elyton Land Co. held and owned and in March, 1888, divided among its stockholders; such also were the 137 shares of the common stock of the Birmingham Realty Co. and the 78 shares of the preferred stock of that company, which through successive reorganizations were substituted for the original stock of the Elyton Land Co. It is also applicable to the distribution of the capital stock of the Highland Ave. & Belt Railroad Co. and the mortgage bonds of the Birmingham Waterworks Co., which were distributed in the proportions designated in the resolution adopted May 5, 1887. In this resolution it is provided that the stock last referred to and the bonds should be distributed as dividends. The recital that it was distributed as dividends will not be controlling upon the court. The court will look to the substance of it. It was evidently a division of a part of the corpus of the corporation, and falls within the operation of the rule which we have pointed out. The same is true of the dividend declared and called a liquidation dividend. And there are other items that clearly fall within the operation of this rule, which we will not now undertake to segregate and point out. We have pointed out merely those which are incontrovertibly a part of the corpus, to illustrate the rule which we have laid down, or, rather, which we have restated, as it has already been clearly laid down. All of the items in the accounting and the question as to whether each falls under the head of corpus or capital, or whether it is to be considered as dividends and income, can be taken up and dealt with by the court below on its next hearing; as we feel compelled to reverse the judgment of the court below because of its error in finding and holding that the "part of the property described in the pleadings which constitutes corpus and what part constitutes income is really settled in the suit between the New York Trust Co., as plaintiff, and Wm. S. and John G. McHenry, individually and as administrators of the estate of Mrs. Bozeman.” No decree of that court is found in this record; and if it were there, it would not be binding in this case. The plaintiffs in this case were not parties to that suit. There are many items in the return made by the committee of the property of Mrs. Bozeman. Some of these are designated as principal and some as income. "Whether all of these items so designated as principal are a part of the corpus of the estate should have been adjudged by the trial court under the evidence submitted, and the proceeding in the New York Supreme Court should not have been considered as finally determining this question. As to certain of the items the finding is incontrovertibly right, as we have indicated above. But as to certain other items, consisting of bonds and cash, the question should have been determined as one of fact by the court below, and this court can not undertake to decide it. And, as we have said above, we will not segregate those items about which there is no controversjq so as to uphold the judgment in part and reverse it as to .the remainder, but the entire account between the parties should be considered as a whole, and a judgment rendered thereon in accordance with the rules of law which we have stated and the facts.

6. As the judgment is reversed upon another ground, in the event the evidence upon the next trial fails to show that Mrs. W. S. McHenry was appointed administratrix of W. S. McHenry, then she can not be proceeded against as the administratrix of her deceased husband, and the suit can only proceed against her upon the other allegations of her being the widow and the sole heir of W. S. McHenry, together with the allegations of her having taken charge of the property.

Judgment reversed.

All the Justices concur.