(Ed. 1607) lib. 3, c. 8. The present decree for probate, while it stands, is a sentence that there is no other last will, and it is a complete bar to this proceeding at this time under section 2621a of the Code of Civil Procedure.

It has been said that a matter which is at issue in legal proceedings cannot be set up as a bar thereto. Broom, Leg. Max. 168. But it is no violation of this canon of both logic and law, to construe section 2621a of the Code of Civil Procedure as contemplating either a vacatur of an existing decree in the first instance, or that the application shall have been made before such decree is passed and duly entered. If any one after a decree of probate of a will of personalty and after letters testamentary have issued to executors may, on a mere informal suggestion under the new section, at any time, no matter how remote, allege another will, what have decrees of probate become worth? All decrees in rem would be prejudiced by such a construction of this statute. The qualified executors may at any time be held up at any stage of a most important negotiation, transfer, or sale, by one invoking this section, although he has no sensible knowledge or any information other than a bare suspicion of the suppression of a later testamentary script. A construction of the new section which would tolerate such an anomaly would tend to infinite mischief and be most disquieting to those who lean on our decrees of probate and letters testamentary. Such a construction of the new section, invoked in this proceeding, ought not in all events to be given in the first instance by the surrogate who passed the decree of probate.

As an important jurisdiction is committed to the surrogate's care for the moment, he should not fritter it away by such a construction of a very modern statute as may be destructive of the jurisdiction itself, for it may not have been intended by the Legislature that the new statute should have any such grave consequences. The statute may be in affirmance of an existing jurisdiction. When the surrogate is advised by the final authority of his superiors to the contrary, he will be compelled to decree accordingly. Any other construction at this time might be regarded as an offense to the law governing decrees in rem throughout the civilized world.

The real grounds of objection, taken by the respondents, have not been mentioned or passed on, because, if this opinion is right in the conclusions heretofore stated, the consideration of such objections becomes unnecessary at this stage. It must be confessed that the surrogate has some grave doubts as to the true meaning and application of the new section invoked in this proceeding. If he is found to be in error in his construction of it, it will be time enough, when so advised by the remittitur, to pass on the objections of respondents.

Section 2621a confers upon the surrogate a discretion only on the return of a citation which it is mandatory on him to issue in the first instance. In view of the considerations already offered and the decree of probate of the will of Mr. Work shown by the very petition. herein, it is my opinion that such decree, being in rem, is binding on the petitioner, and that the petition at this stage is irregular.

The petition will therefore be dismissed, and it is so ordered.
Petition dismissed.

(Surrogate's Court, New York County. June 8, 1912.)

1. LIFE ESTATES (§ 15*)-"PRINCIPAL" OR "INCOME."

What is "income" from capital stock, to which a life tenant is entitled under a will, as distinguished from "principal," to which the remainderman is entitled, depends largely on testator's presumed intention. [Ed. Note. For other cases, see Life Estates, Cent. Dig. §§ 21, 34, 35; Dec. Dig. 8 15.*

For other definitions, see Words and Phrases, vol. 4, pp. 3501-3507; vol. 8, p. 7685; vol. 6, pp. 5552-5557; vol. 8, p. 7763.]

2. LIFE ESTATES (§ 15*)—“DIVIDEND”—WHAT CONSTITUTES.

A transfer of assets by a railway company to a trustee and subsequent issue of participation certificates by the trustee do not constitute a "dividend" on stock, so as to entitle a life tenant under a stockholder's will to it as against the remainderman.

[Ed. Note. For other cases, see Life Estates, Cent. Dig. §§ 21, 34, 35; Dec. Dig. § 15.*]

For other definitions, see Words and Phrases, vol. 3, pp. 2143-2147.]

In the matter of the estate of Margaret Rea Agnew Bunker, deceased. On accounting by the executors. Decree directed.

Frederick S. Woodruff, for William Bunker, as executor and life. tenant.

Parsons, Closson & McIlvaine (William E. Carnochan, of counsel), for remaindermen.

FOWLER, S. The question to be decided by the surrogate arises on the accounting of the three executors of Mrs. Margaret Rea Agnew Bunker, deceased. The parties before me have agreed concerning what documentary evidence should be submitted, and also that that documentary evidence covers all the facts. The question thus put to the surrogate is: Shall certain trustees' certificates, referred to in said. documents, be treated as capital or as income?

In the account before me they are stated in separate schedules and left subject to the determination of the surrogate. The life tenant and the two remaindermen are named as the executors under the will of Mrs. Bunker. The following is what I conceive to be a synopsis of the documentary evidence submitted to the surrogate:

The late Mrs. Bunker, whose estate is involved in this accounting, was at the times hereinafter referred to a shareholder in the Great Northern Railway Company.

On October 20, 1899, a contract was entered into between the Great Northern Railway Company and the Lake Superior Company, Limited, by the terms of which it was agreed that, in consideration of the Great Northern Railway Company having transferred to the said Superior Company certain stocks, bonds, and properties enumerated therein: First. The Superior Company should not dispose of the same without the consent of the Northern Company. Second. The Superior Company should pay out of the income all taxes and certain ex

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

penses referred to therein. Third. The Superior Company would, when requested by the Northern Company, pay the balance of the income to the stockholders of the Northern Company as they may appear of record at the date of closing the stock transfer books of that company for some regular dividend, ratably in proportion to their respective holdings of Northern Company's stock. The board of directors of the Northern Company might, by resolution approved by its stockholders, direct that such profits, income, or dividends received of the Superior Company, instead of being put out in the form of dividends to the stockholders of the Northern Company, should be used for the purpose of acquiring other property or for such other uses and purposes and upon such terms and conditions as may be set forth in such resolution. Fourth. The Northern Company might, by resolution approved by its stockholders, authorize or direct the Superior Company to lease, sell, or transfer any or all of said earnings transferred to them as aforesaid by the Northern Company. Fifth. Upon demand of the Northern Company, made by resolution of its board of directors, approved by its stockholders, the Superior Company agreed to transfer the stocks, bonds, and properties held by it hereunder to the Northern Company, or to such other body or person as might be designated by said resolution. Sixth. Action of the stockholders of the Northern Company authorized or required under this contract shall be in the form of resolutions adopted at their annual meeting, etc. Seventh. Provided that copies of resolutions of the Northern Company or its stockholders should be delivered to the Superior Company.

Such, in brief, was the contract. This contract was entered into on the aforesaid 20th day of October, 1899, by the officers of the two corporations. On the same day the stockholders of the Northern Company ratified the agreement by resolution as follows:

"Whereas, the stocks, bonds, and properties transferred to the Superior Company by such contract were acquired with funds which might otherwise have been lawfully distributed in the form of dividends to and among the stockholders of this company, and such stocks, bonds, and properties have been held subject to division among such stockholders through a sale and distribution of proceeds or otherwise; and whereas, it is in the interest of the stockholders of this company and their desire that the properties, stocks, and bonds transferred by said contract; instead of being sold or divided, be kept together and the property used and the business of the companies represented by the stocks and bonds managed and controlled in connection and concurrently with the operation of the Great Northern Railway Company; and whereas, to that end said contract was executed, and the right to assign or transfer stocks or properties of either of such corporations was fixed and limited as therein expressed: Resolved, that said contract and its execution by the vice president of the Great Northern Railway Company be in all respects ratified, approved, and confirmed."

The report of the president and directors of the Northern Company for the year ending June 30, 1900, contained the following:

"This company has from time to time become interested in properties or companies not strictly a part of the railway system, but of direct or indirect benefit to it, such as coal mines, iron mines, elevators, docks at Buffalo, New York, etc. It is considered that these properties can be handled to better advantage by a separate company. To this end the Lake Su

perior Company, Limited, has been organized, and there has been transferred to it during the year all of the Great Northern's interest in the Great Northern Express Company, Great Northern Elevator Company, Sand Coulee Coal Company, and other outside companies. The income from these properties or securities, unless reinvested, will belong to the Great Northern's shareholders. The title to these securities, etc., having by this transfer passed from the Great Northern Railway Company to the Lake Superior Company, trustee, the sum of $1,851,364.92 has been charged against profits and loss, as shown by table on page 34, on account of part of their cost. This will also explain why the earnings, expenses, etc., of the Great Northern Express Company and Sand Coulee Coal Company have not this year been included in the revenue table printed on page 32, as has been the practice in former years."

The profit and loss account referred to in the above is set forth as follows in the account:

Credit balance July 1, 1899....

$2,317,841 97

Amount transferred from income account for year ended June 30, 1900, as above...

2,217,763 74

Total credit.....

$4,535,605 71

1,851,364 92

Against which has been charged on account of securities transferred to Lake Superior Company, Limited, as explained on page 11

Leaving the credit balance June 30, 1900.....

$2,684,240 79

Mrs. Bunker died on August 1, 1906, leaving a will the pertinent portion of which is as follows:

"Eighth, I give, devise and bequeath the net rents, profits and income of all the rest. residue and remainder of all my property and estate, real and personal, of which I shall die seised or possessed, or to which I shall be in any way entitled at the time of my death, to my husband, William Bunker, during his life and the principal thereof, after his death, to my sisters, Elizabeth Agnew and Mary Agnew, share and share alike, to bave and to hold to them and their heirs forever.

"Ninth, I appoint my husband William Bunker, and my sisters, Elizabeth Agnew and Mary Agnew, executors of this will."

Subsequently, and at a meeting of the directors of the Great Northern Company held November 14, 1906, resolutions were adopted which

Resolved, that the Lake Superior Company, Limited, be and is hereby authorized and directed to assign, transfer and deliver to Louis W. Hill, James N. Hill, Walter J. Hill, and Edward T. Nichols, to be by them held in trust for the uses and purposes, with the powers and authority and upon the conditions substantially as set forth in the draft of trust agreement stated at length in these minutes, the following stocks and securities now held by the said Lake Superior Company, Limited, under a contract dated the 20th day of October, 1899, entered into between it and this company: (Here follows a list of stocks and securities).

Resolved, further, that the said trust be and is hereby created for the benefit pro rata of those persons who shall be shareholders of this company, registered and appearing as such upon its books at the close of business on the 6th day of December, A. D. 1906. Certificates of such beneficial interest as provided in said trust agreement are to be issued by the trustees as soon as practicable to the persons entitled thereto.

Resolved, further, that for the purpose of determining the persons who shall be entitled to share in said trust the president and secretary of this

company shall cause to be prepared a duly certified and true and accurate list of the persons who shall be shareholders at the close of business on said 6th day of December, 1906.

The following are what I regard as the salient points of the trust agreement referred to in the above resolution:

Agreement made this 7th day of December, A. D. 1906, by and between the Lake Superior Company, Limited, and Louis W. Hill and three others, parties of the second part, witnesseth:

Whereas, the party of the first part has acquired the shares of stock hereinafter described and transferred, and now holds the same for the benefit of the shareholders of the Great Northern Railway Company, etc.: Now, therefore, the party of the first part assigns to the parties of the second part, called trustees, the following personal property-enumerating stocks and bonds above referred to. To have and to hold all and sundry the said shares of stock, etc. In trust, however, to hold, use and dispose of the said property and of income and proceeds thereof upon the trust herein expressed for and during the lives of the following named persons and the life of the last survivor of them and for and during the twenty years next following the death of the said survivor unless said trust shall be sooner determined. (Here follow the names of about 18 persons.) Said trustees shall collect all income, etc., from said property. Said trustees shall out of the moneys so received by them pay all expenses, etc., of said trust. After payment made of or provisions made for the expenses of said trust, the said trustees shall from time to time and at least once in every year distribute and pay said portion of the net income and proceeds of the property held by them as such trustees as they may deem proper, to be so distributed among and to the persons appearing as shareholders of the Great Northern Railway Company, registered as such upon its books at the close of business on the 6th day of December, 1906. The interest of the persons made beneficiaries under said trust shall consist of 1,500,000 equal shares, each original beneficiary being entitled to receive the number of shares and a certificate therefor, as hereinafter provided in said trust, as equals the number of shares of stock of the Great Northern Railway Company registered as of the date aforesaid in his name as a holder thereof on the books of said company. The interest of each and every beneficiary in said trust, is and shall continue to be limited to the right to receive his proportional share of dividends in such distributions as shall from time to time have been determined on and declared by said trustees as hereinbefore provided.

The trustees shall cause to be prepared certificates of beneficial interest under said trust, and each certificate shall state the proportional interest or number of shares to which the person named therein is entitled to under said trust. The trustees shall have full power during the continuance of the trust to sell or exchange for other property or otherwise dispose of any of the shares of stock hereby transferred to them or any property that may ever become subject to the trust, to invest the proceeds of such sale and other property which shall be held by them under the same trust, etc. Upon the expiration of the 20 years following the death of the last survivor of the before-mentioned persons upon whose lives the said trust is limited, the trustees shall at once proceed to wind up the affairs of the said trust. After paying off all the expenses and obligations of the trust they shall distribute ratably among the certificate holders all moneys remaining in their hands as such trustees, and shall convey and transfer unto the party of the first part or its successors and assigns all property save said moneys held by them under said trust.

There is also submitted to the surrogate a copy of the resolution of the stockholders of the Great Northern Railway Company held November 19, 1906, which in all respects ratifies, confirms, and approves the foregoing resolutions adopted by the board of directors on the