Lehmann v. End. Fund. Ass'n ( 1923 )

HAMILTON, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Lehmannj as trustee under the will of Anna Heady, deceased, brought an action in the Hamilton Common Pleas for the decision and judgment of the court as to the rights of the University of Cincinnati and Mollie Lamb for 204 shares of stock in the Richardson Company. Under the will Mollie Lamb was a life tenant of the estate and the University of Cincinnati remainderman. One Lehmann was appointed trustee under the will to administer the estate. During the existence of this trust an additional 2i04 shares of the common stock were issued by the Richardson Co. and received by the trustee. The surplus against which this stock was issued was earned during the continuance of this trusteeship.

It was also true that this surplus was' used in the prosescution and enlargement of this business. Lamb claimed that the stock was divided stock while the University claimed that the stock was the capitalization of surplus. As the Common Pleas held for the University, an appeal was perfected to the Court of Appeals. In entering a decree for the University, the Appeals held:

1. Stock issued to a stockholder or trustee of a deceased stockholder which is based upon the surplus earnings is not income, and therefore the life tenant is not entitled to receive the same under the provisions of a will entitling her to the income of the estate, but the same should be held by the trustee for the remainderman.

2. As the decision of this court is in conflict with the case of Savings Bank & Trust Company v. Clark, 28 OCA. 1, decided by the Court of Appeals of the 6th Dist., the case is hereby certified to the Supreme Court.