Millen v. Guerrard , 67 Ga. 284 ( 1881 )

Jackson, Chief Justice.

Certain shares of Central and Southwestern Railroad stock were left by the will of Mrs. Millen to Guerrard, in trust for George R. Millen and his children, the income to be paid to Millen during life and remainder to his children, with contingent remainder over in the event of their death.

After probate of this will, the directors of the Central Railroad Company declared a dividend in certificates of indebtedness (in addition to a cash dividend) of $40.00 per share on the Central and. $32.00 per share on the Southwestern stock, the Central Railroad having leased the latter road some years before on certain terms specified in the lease.

The question made in this case is, do these dividends go to George R. Millen, the life-tenant, or to the remaindermen ?.. The will directs the incomé of the stock to be paid to the life tenant. Are dividends on stock the income of the stock? ' If not,what are they? They are certainly no part of the corpus. They do not increase the shares one iota, nor could these dividends have been so applied by the directors as to add to the corpus, that is. to increase the stock, because the limit upon the number of shares allowed the company by its charter is exhausted. These dividends could not be so used as to increase the corpus, and hence the directors declared the dividends, and gave them to the stockholders as dividends,' and not as corpus.

What did the testatrix mean when she gave to George R. Millen for life the income of this stock? Most clearly she meant the dividends declared by the directors, for there is — there can be — no income from the stock of a railroad company, except the dividends declared thereon. Nor does the testatrix limit the'amount or value of this income to be enjoyed for life by the life tenant. It matters not how little or how large- the dividend declared, it is income from the stock, and it goes .to the life tenant. No matter in-what it be declared, whether in cash or in bonds, no matter whether it be the accumulation of years or of one year, if it be the income from the stock, and not the corpus, the stock itself, by the terms of the will, which is the law of this case, it goes to the life tenant. No matter what, therefore, may be the law in respect to cases generally which may arise under this action of the directors of the Central Railroad Company, in this case, under this will, these dividends, in the shape of these interest-bearing certificates, are income, and not corpus, and go to the life tenant, and not to the remaindermen.

2. But suppose that the will be not in the case, and that by any sort of deed or instrument of conveyance this stock were the property of one for life and of others in remainder, where would these dividends go — whose property would they then be ?

That question will turn on the resolutions of the directors and the Code of this state, that is upon the true meaning and construction of those resolutions* and of section 2256 of the Code. '

The resolutions show that dividends due. these shares of stock had been “ withheld ” for past years, that the owners of the stock had not received anything “ to represent their dividends and income thus withheld,” and that therefore these certificates of indebtedness are issued. Clearly, therefore, these certificates represent, as declared on the face of the preamble and resolutions, past dividends withheld, and are declared in lieu of those dividends and that income from this stock which were withheld. It is as much as to say that the income from this stock was made in certain years, but not declared in those years for prudential reasons. Those reasons do not now exist. Therefore this, the income of those years, will be declared as dividends now and be paid now. Suppose it had been declared in cash, would there be a doubt that the-cash would, be the money of the life tenant? We think not. Suppose it had been declared in bonds on other persons, on the state, or the United States, or a city, or other railroad corporation, would it not go just as cash would have gone ? Most certainly it seems to us. What difference, then, can it make if the company gave its own bonds or evidences of debt as dividends representing past income? None logically, so far as we can discern it.

The directors thus calling these certificates of indebtedness dividends, and issuing them as dividends, we come to the question, where do they go under the Code of Georgia, to the life tenant or to the remaindermen ?

The Code, section 2256, enacts that, “ 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.”

Are dividends, though unusually large, because, withheld when they might have been declared but for prudential reasons, an extraordinary accumulation of the corpus, or are they the natural increase of the property, in the sense of this statute ? We take it that the .words, “natural increase ” are used in antithesis to the subsequent words, “ extraordinary accumulation,” and they mean the ordinary accumulation of the property, that is, in case of stock, the ordinary increase of its value by larger dividends declared, whereby it may be worth much more in the income of the holder from it, goes to the life tenant; but any extraordinary increase or accumulation, by donation, or grant from the state of lands or other outside property, will go to the remaindermen. That property thus accumulated, not from the ordinary use of the means of the company, but from extraordinary outside accumulations attaching to the former means or corpus of the company and adding to that corpus or those means, assimilates with that, becomes part of it, makes it larger and productive of more fruit, and cannot be cut off by the life tenant, but must stand tied to the corpus, and with the corpus pass to the remaindermen.

But really dividends are the ordinary, the natural, the only natural income or increase of this sort of property. There can be no natural birth from this parent, except dividends be born of her womb. Railroad stock produces that naturally, in the very order of its creation, according to the vdfy law of its existence, breathed into it by the legislature when it became a living entity.- Its maker then said to it: “ Be fruitful and multiply dividends.” So that, according to its organic nature, it makes and distributes dividends, and their birth is no more extraordinary than that of a child from healthy parents, and the issue of large dividends no more extraordinary or unnatural than the birth of twins. We think, therefore, that these terms, natural and extraordinary, are not in the way-of carrying into effect the intention of the testatrix and of the directors. (It is,proper to remark that the increase of a mother who was a slave was made an exception to this rule in the Code and under the old law.)

Nor are the words, “such as issue of new stock upon the share of an incorporated or joint stock company.” They are a mere illustration of extraordinary accumulations. It, the issue of new stock, is not an ordinary increase; it is not a natural increase. In this case it would have been very unnatural, because the law of the creation of this corporation prohibited this issue. The corporation must receive new powers from its maker before it could do this extraordinary, and as it now stands chartered, wholly unnatural and illegal thing. It could not produce new stock, but it could declare any number and amount of dividends.

Besides the corpus of this property is the shares of this stock. The only way to accumulate on this corpus is to increase these shares. If this corporation had possessed the power to do so, and had carried out that power, then the new stock would have assimilated to the old, become part and parcel of the corpus, and could not have been severed from it by the life tenant, but by the Code it would have gone over to the remaindermen.

Nor do we see any other possible way of adding to this corpus the old stock, except the issue of new stock. That is the only thing that can accumulate in kind on it and assimilate and become corporate with it. Bonds of the company, or promissory notes of it, or certificates of indebtedness by it, are not' accretions to its stock, nor in any legal sense part of its corpus. Indeed they are just the opposite. They are burdens upon it. They are debts which the natural fruit of the corpus will have tó pay, instead of new stock engrafted on the old to produce more fruit.

So that, on mature reflection, we are of the opinion that these certificates of indebtedness, principal and interest, are the property of the life tenant, and the judgment of the court below denying the injunction is affirmed.

Cited for plaintiff in error: Code, §2256.

For defendant: 1 Bouvier Die., 695; 60 Ga., 93 ; 4 Vesey, 800; 10 lb., 185 ; 13 Ib., 363 ; 14 Ib., 66 ; 1 McClell., 527; 7 Sim., 634; 15 Ib., 473 ; 16 Ib., 163 ; 5 Eng. Law and Eq., 164; 31 Beav., 280; 5 Éq. Cas., 238; 6 Allen, 174; 12 Ib., 359; 99 Mass., 101; 101 Ib., 571 ; 102 Ib., 542; 18 Barb., 646; 30 Ib., 637; 28 Penn., 368; 83 Ib., 256; 64 Ib., 256; 11 Leigh., 595. These cases, collated with much care, make a very useful and instructive history in chronological order'from 1799 to 1868 of the English, Massachusetts and New York decisions on the general question of the respective rights of the life tenant and remaindermen to the increase of property.

Judgment affirmed.