been appropriated to the purposes of the charter, and might borrow money, to supply the place of that which had been used, from the stockholders or any one else. It was decided in that case that the company could give its bonds to such stockholders as were willing to receive them for their portion of the net profits thus used. On page 378 the court used the word "stock" instead of "bonds" which was probably inadvertently done, but, if the company has the power to give its stockholders bonds for net revenue used, it can also issue its stock which it has the authority under its charter to increase. If, in this instance, the company had issued bonds the life tenants would have been entitled to their proportions, and why not of the stock issued? We think, under the circumstances, the life tenants are entitled to their shares of the stock, and the only remaining question is, How can it be apportioned so as to do justice to all persons interested?

The evidence is not as full as it might be: section 19 of chapter 123 of the acts of 1826. The charter of the company provides that the president and directors shall annually or semiannually declare and make such dividend as they may deem proper, etc. The resolution of 559 the directors refers to three fiscal years ending September 30, 1889, 1890, and 1891, and then declares the dividend for the period ending September 30, 1891. It is usual for railroad companies to keep such accounts as will show their net earnings, if any, for each period of six months, as well as for the whole fiscal year.

We do not think it would be proper to approximate the net earnings for a proportionate part of the six months, but if it can be accurately ascertained what proportion of the twenty per cent dividend declared by the company was earned in each period of six months, commencing October 1, 1889, then we think it should be ascertained for each of such periods ending March 31, 1890, September 30, 1890, and March 31, 1891. Having ascertained the amount of net earnings for those eighteen months, it can readily be ascer tained what proportion of the 670 shares was earned during that time. One-half of such amount should be allowed John Marshall Thomas, executor of Annie Gregg Thomas, as her proportion, she having died in July, 1891. If the net earnings for the periods of six months cannot be definitely determined, then ascertain them for the fiscal year ending

September 30, 1890, and the proportion of the 670 shares earned during that time, and Mrs. Thomas' estate will be entitled to one-half thereof.

So far as Mrs. Pennington's interest is concerned, it will only be necessary to determine the net earnings for the two years ending September 30, 1890, and September 30, 1891; then ascertain what proportion of the 670 shares was earned during those two years, and Mrs. Pennington will be entitled to one-half of the same. The proportion of shares earned during the year ending September 30, 1889, must be treated as capital, and also the Thomas half for the two years ending September 30, 1890, and September 30, 1891, after deducting the number of shares to be turned over to Mr. Thomas, as above directed.

There can be

560 We think this plan an equitable one. no serious difficulty in ascertaining accurately the net profits earned by the company during each fiscal year of this period of three fiscal years, and it is altogether probable that this can be determined with the same accuracy for the period of six months.

So far as the Pennington share is concerned, that is immaterial, but it may affect the Thomas share, as we do not deem it practicable or proper to subdivide the periods fixed by the company for dividends.

Whatever those periods were, whether of six months or a year, they should be adopted. We see no objection to thus apportioning the dividends between the life tenants and remaindermen under the circumstances of this case. The resolution of the directors shows on its face that the earnings of the three years were ascertained and the dividend was declared accordingly. As the earnings for the year ending September 30, 1889, can be easily told, and that was before the life estate commenced, it is but just and in accordance with the intention of the testator, so far as it is shown, that such earnings be treated as capital.

Such further testimony as may be necessary to meet the views herein expressed can be taken.

It follows from what we have said that the decree of the court below dated September 7, 1893, must be reversed, and the cause remanded so that the views herein expressed may be carried out.

Decree reversed and cause remanded.

AM. ST. REP., VOL. XLIV. - 21

CORPORATIONS-DIVIDENDS-APPORTIONMENT BETWEEN LIFE TENANTS AND REMAINDERMEN.-Corporate dividends, whether of stock or payable in money, are nonapportionable, and must be considered as accruing in their entirety as of the date when they are declared, and, as between a life tenant entitled to the income from an estate out of which such dividends are declared and the remainderman, they belong to the life tenant if a profit, and declared after his tenancy commenced: Hite v. Hite, 93 Ky. 257; 40 Am. St. Rep. 189, and note, with the cases discussing this subject collected. See the full discussion of the questions presented by the principal case in the extended notes to Allen v. De Groodt, 14 Am. St. Rep. 633, and Gibbons ▼. Mahon, 54 Am. Rep. 264.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

THOMAS V. COMMERCIAL UNION ASSURANCE CO.

[162 MASSACHUSETTS, 29.]

INSURANCE AGAINST FIRE, ENTIRETY OF CONTRACT OF.-A policy of insur ance against loss by fire of buildings described as a dwelling-house and a stable situate near it, for which but one premium is paid, though the amount for which each building is insured is separately stated, is an entirety, and if void in part is void altogether. Hence, if the house is not a dwelling, but a hotel, and the insurance of it is void on that ground, the policy is also void as to the stable. INSURANCE AGAINST FIRE MISDESCRIPTION. A BUILDING WHICH HAS BEEN USED AS A HOTEL, and which, from the number and arrangement of the rooms, is clearly a hotel, and not a dwelling, cannot properly be insured as a dwelling-house, though it is at the time in the custody of a caretaker, and the owner intends it to so remain until it can be sold, unless, in the mean time, he has an opportunity to let it to a family.

-

INSURANCE AGAINST LOSS BY FIRE ON A BUILDING AS A DWELLING-HOUSE IS VID if it is in fact a hotel, and the risk of a dwelling-house is less hazardous than that of a hotel. INSURANCE-TESTIMONY TO VARY CONTRACT.-If a building, insured as a dwelling-house, is in fact a hotel, evidence is not admissible to support an action on the policy to the effect that the property was fully described to the agent, and that the description contained in the policy was his description. This testimony is not admissible, because, if admitted, it could only be for the purpose of varying a written contract.

ACTIONS of contract based upon policies of insurance against loss by fire. The property insured was described in the policy as "$3,000 on her frame dwelling-house situate on Glen avenue near Coolidge avenue, Watertown, Mass.; $1,000 on her frame private stable situate near the above building." No application in writing had been made for the insurance,

and the plaintiff offered to prove that when the policy was issued, she and the agent of the defendant were together and she clearly described the property to him, and that he thereupon made out the description as shown by the policy, though he was told that the house was formerly known as the “Glen Hotel." The evidence tended to prove that the house had always been known as a hotel, and that the rate of insurance of hotels was greater than of dwellings. The trial judge. ruled that the action could not be maintained, and directed verdict for the defendants.

F. E. Snow & G. D. Burrage, for the plaintiffs.

W. C. Loring, for the defendant..

82 MORTON, J. The policy upon which these suits are brought was issued to the plaintiff Thomas. The property which was the subject of the insurance is described in the policy as "her frame dwelling-house situated on Glen avenue near Coolidge avenue, Watertown, Mass.," and "her frame. private stable situated near the above dwelling." There was but one premium paid for the dwelling and stable, and the contract of insurance was an entire one. If it is void in part, it is void altogether, and cannot be apportioned: Friesmuth v. Agawam etc. Ins. Co., 10 Cush. 587; Brown v. People's etc. Ins. Co., 11 Cush. 280; Lee v. Howard etc. Ins. Co., 3 Gray, 583; Kimball v. Howard etc. Ins. Co., 8 Gray, 33.

The questions on which the cases principally turn are: 1. Whether the main building was properly described as a dwelling-house; and 2. If not, what is the effect of the misdescription. We think that, upon the undisputed facts, it cannot be regarded as having been a dwelling-house at the time when it 33 was insured. It was conceded at the trial that the structure had been used for years, and up to the time of its damage by fire shortly before its purchase by the plaintiff, as a small hotel, and was known as the Glen Hotel. The plaintiff Thomas testified that "it was always called the Glen Hotel or the Glen, mostly the Glen," and that at the auction at which she bought the property the notice read by the auctioneer described it as the Glen Hotel. There was no testimony that it had been occupied as a dwelling-house before the issuing of the policy, unless the evidence of the presence of the caretaker, Egan, put in by the plaintiff, constituted such occupancy. The number of rooms in the house,