14th day of November, 1906, authorizing the Lake Superior Company to make the assignment referred to therein to Louis W. Hill et al. as trustees. Exhibit No. 1 appears to be a copy of the certificate of beneficial interest above referred to issued by Louis W. Hill et al. as trustees. Exhibit No. 3 is a printed copy of the application made by the aforesaid trustees to the Stock Exchange in Wall street to list the certificate of beneficial interest. It is a long printed document of three pages, giving a history of the actions and proceedings to which I have heretofore referred, but upon reading the same it does not seem to me that there is anything especially helpful in the solution of this matter. Exhibit No. 2 is a letter from L. C. Gilman to Mr. Edward T. Nichols, one of the trustees of the Great Northern iron ore properties, giving his version of the status of the iron ore properties on August 1, 1906. This was the date of the death of Mrs. Bunker. It appears from one of the briefs that Mr. L. C. Gilman is counsel for the Great Northern Railway Company, and Mr. Nichols, to whom the letter was addressed, was one of the trustees. It is on such evidence that the surrogate is requested to determine the controversy between the parties to this proceeding over the holdings, once of Mrs. Bunker, in the Great Northern Railway Company. The life tenant is claiming that the 480 trust certificates so issued as aforesaid accrued to him as life tenant under the will of Mrs. Bunker. This the remaindermen deny.

[1] It has been sometimes suggested that the true basis of distinction between capital and income where shares are left to tenant for life is to be determined by the presumed intention of the testator himself. In England, where such questions are frequent, Lord Lindley (In re Armitage [1893] 3 Ch. 337, 346) was of the opinion that the testator could not be presumed to intend that the life tenant should have such profits as arose by realization of shares, i. e., the difference between book values and realized values of the shares. Lord Lindley was of the opinion "that a testator 'could never dream of such profits' going to the tenant for life." But in that country Bouch v. Sproule (12 App. Cas. 385) is a leading authority on such subjects. It was there held that "what the company says is income shall be income, and what it says is capital shall be capital." This conclusion is not inconsistent with the suggestion, which I have noticed, that testator's intention should govern, for if alive testator probably would regard as income that which his company declared to be income, and he would treat as capital that which was so considered by the corporation. This would be prudent. I do not think the authorities of our own state differ materially from the law stated. That the corporation is in the first instance the judge of what assets are to be regarded as capital and what as dividends is implied in Jermain v. Lake Shore & Mich. L. R. Co., 91 N. Y. 483, 492, and other cases.

[2] But without regard to the point just noticed, and without going into it, it is clear to me in this matter that some seven years before Mrs. Bunker died the Great Northern Railway Company, of which she was a shareholder, finding itself in possession and contro! of valuable properties either through purchase or by reason of the

ownership of certain stocks in other corporations, organized or caused to be organized a separate company, the Lake Superior Company, Limited, and the Great Northern Company then set apart to the said Superior Company the particular properties in question. This situation continued until November, 1906. Mrs. Bunker died on August 1, 1906. She was then a shareholder in the Great Northern Railway Company, and as such shareholder she was interested in the property so transferred to the Superior Company by the Great Northern Company as before stated. All that has happened since Mrs. Bunker's death is that the Superior Company has ceased to manage the trust property of the Great Northern Company, and its successor trustees have issued trustees' certificates, evidencing the interest which Mrs. Bunker once had in the property originally conveyed to the Superior Company. No doubt Mrs. Bunker in her lifetime regarded the interest which she had in the property so conveyed by the Great Northern Company to the Superior Company as part of her own capital and not as her income. This property in question was a part of the book value of her Great Northern shares. The income derived by her from the property so conveyed by the Great Northern Company would have been a part of her own income and not a part of her capital. Her intention in her own will, no doubt, coincides with her own situation in respect of her Great Northern holdings. What was capital as to herself would be capital as to the life tenant nominated in her will to take over or succeed to her holdings in the Great Northern Company.

But the judgment need not rest on that point. I am of the opinion that no dividend in fact has been declared at all of the properties which were transferred originally by the Great Northern Company to the Superior Company. By the terms of the contract made by the grantor company with the Superior Company, such properties were to be held subject to the control of the Great Northern Company and were to be transferred by the Superior Company to such other body or persons as might be designated by the Great Northern Company. The only direct interest which the stockholders of the Great Northern Company had in said properties so conveyed was the right to receive the balance of income when paid to them at the request of the Northern Company. When these securities were transferred by the Superior Company to trustees, I think conditions were not changed, and the certificates which were issued to shareholders of the Great Northern Company were only tangible evidences of what they were enti'tled to as dividends on said trust property, and the holders of such certificates had no more right in the said trust property than they had under the former contract of their corporation.

In this connection I would call attention to that clause of the contract entered into between the Superior Company and the trustees now controlling the properties to the effect that upon the expiration of the 20 years following the death of the last surviving 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 dis

tribute ratably among the surviving 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 in said trust. Thus it will be seen that the money in the hands of the trustees (which presumably would be the undivided earnings of the stocks, etc.) should be paid to the certificate holders, but that all the property save said moneys should be paid back to the party of the first part. It would then come into the control of the said party of the first part, the Superior Company, but still subject to the orders and directions of the Northern Company. Thus it will be seen that the trust property so conveyed by it will eventually come back under the control of the Great Northern Railway Company.

My conclusion is that there has been no dividend in so far as the principal of said trust fund of Mrs. Bunker's estate is concerned. The contention of the remaindermen under Mrs. Bunker's will, to the effect that the 480 trust certificates in question should continue to be held as the principal of the capital estate, is sustained. Decree accordingly.

MCGINN v. LIGHTHOUSE et al.

(Surrogate's Court, Monroe County. June 14, 1912.)

1. EXECUTORS AND ADMINISTRATORS (§ 454*)—JUDGMENT ENFORCEMENT-ExECUTION "FINAL PROCEEDING."

Where a judgment is recovered against executors in their representative capacity in the Supreme Court, an application to the surrogate to issue an execution on such judgment is a "final proceeding" de novo in the Surrogate's Court, within Code Civ. Proc. §§ 1825, 1826, to be commenced by the filing of a verified petition and an issue of citation, or an order to show cause, unless the issue and service of such citation or order is waived by the parties affected; service being had personally on each of the executors, in the absence of a showing that such service cannot be had with due diligence, in which case notice must be given in such manner as the surrogate directs.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]

2. APPEARANCE (§ 3*)-APPEARANCE BY ATTORNEY-SURROGATE'S COURT.

Appearance by an attorney in a Surrogate's Court is not recognized, unless accompanied by an authorization duly acknowledged as of an instrument to be recorded within the state, except where citation or order to show cause has been issued by the court, naming the parties who are cited to appear, when an appearance by an attorney is recognized without written authority.

[Ed. Note. For other cases, see Appearance, Cent. Dig. §§ 9-11; Dec. Dig. § 3.*]

3. EXECUTORS AND ADMINISTRATORS (8 454*)-SPECIAL PROCEEDINGS SERVICE. In a special proceeding before the surrogate for leave to issue execution against the assets of a decedent's estate in the hands of executors, service of application on one of the executors is not sufficient to bring them all in, but service should be had on each.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]

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

Application by Elizabeth R. McGinn for leave to issue execution on a judgment obtained against Margaret V. Lighthouse and others, as executors, in the Supreme Court. Denied.

See, also, 149 App. Div. 931, 134 N. Y. Supp. 1138.

Hubbell, Taylor, Goodwin & Moser, for the motion.
S. D. Bentley, opposed.

BROWN, S. This is an application on the part of the plaintiff in the action against the executors of a decedent, brought against them in their representative capacity. The petitioner, who secured the judgments against said executors, served an affidavit on the attorney for the defendant and notice of application or motion to this court for leave to issue execution on the judgment taken by the plaintiff. Said application is made under the provisions of sections 1825 and 1826 of the Code of Civil Procedure. Copy of affidavit and notice were served upon the attorney for the executors in the action in the Supreme Court. He admitted service as attorney for the defendants upon a copy of such notice of motion and affidavit. Upon the return of said motion, said attorney notified the court that he had no authority to appear for two of the executors, objected to the jurisdiction of the court as against those two executors, and claimed that they should be properly before the court before the court could proceed, and, further, that the proceeding was not properly brought, so as to confer jurisdiction on the court, in that the proceeding was not brought by a petition duly verified and a citation or order to show cause issued thereupon by the court.

[1] While this court does not wish to be technical in matters of practice, nevertheless there are principles of practice that must be observed for the orderly administration of justice. The practice of this proceeding is to secure the leave of the court for the issue of an execution against the executors in their representative capacity upon a judgment taken in another court, to wit, the Supreme Court. A judgment having been taken against the executors in their representative capacity after the death of the decedent, proper application for such permission falls under sections 1825 and 1826 of the Code of Civil Procedure, and accordingly it is a special proceeding in this court; in other words, it is a de novo proceeding in this court for relief against the executors of an estate which is under the jurisdiction of this court, and upon a judgment not taken in this court, but taken in another court. Were this application upon a matter already pending in this court, it might be in some instances proper to make an application by affidavit and notice of motion in conformity with the

in the Supreme Court in like cases; but, being a new proceeding in this court to aid the plaintiff to collect her execution on a judgment in another court, it is an independent proceeding under the class of a special proceeding.

[2] Special proceedings must be started in this court by the filing of a verified petition and the issue of a citation or an order to show cause, unless the issue and service of such citation or order to show cause is waived by the parties affected, or to be affected. There is

filed herein no waiver of such service, and, as long as no citation or order has been issued, the appearance of an attorney is not recognized in this court, unless said appearance is accompanied by an authorization duly acknowledged as of an instrument to be recorded within this state. Where citation or order to show cause has been issued by this court, naming the parties who are cited to appear before the court, then an appearance by an attorney for a party is recognized, without the written authority of said party authorizing such appearance. It therefore appears to the court that this court has no jurisdiction of this application, for both of the reasons above mentioned.

[3] Counsel for the applicant claims that service on one executor is sufficient to bring them all in. In that I must disagree, on the authority of Bodle v. Hulse, 5 Wend. 313, Scrantom v. Farmers' & Mechanics' Bank, 33 Barb. 527, approvingly cited in Simpson v. Simpson, 44 App. Div. 492, 494, 60 N. Y. Supp. 879, and Matter of Slingerland, 36 Hun, 575. I am, therefore, further of the opinion that in a matter of this character each of the executors should be personally served with notice of the application, unless it appears that service cannot be so made with due diligence, in which case notice must be given to such persons and in such manner as the surrogate directs, by an order to show cause why the application should not be granted.

An application for an execution is an application for a matter of substantial right, and each executor is entitled to the notice required by the Code, and, as shown above, provision is made how to give such notice, if personal service cannot be had with due diligence. This application is in the nature of a motion, and costs as of a motion should be allowed. I accordingly find that the application made herein should be denied, with $10 motion costs, without prejudice to the applicant to renew her application in a proper form for leave to issue execution on the judgments set forth in the application herein.

Let order be entered accordingly.