of the trustees with respect to the trust estate. ¦ of the fact that they have matured, or are apThe action being at issue, it was referred to proaching maturity, when of course, the prea referree for trial; and, as an incident of the mium must disappear altogether; in other litigation, a full accounting on the part of the words, that the expense of the premiums on trustees was had, which shows the sums paid the United States bonds must be borne by the out under the directions of the trust, and the life tenants, and not by the tenants in remainfund which still remains in their hands. der. (2) That the stock dividends upon the Western Union stock were not income payable to the life tenants, but an accession to the capital which goes to the remaindermen. Mr. McLouth, one of the trustees, and the three grandchildren defendants, on the other hand, insist upon just the contrary of these two propositions, and in their contention they have been sustained by the courts below.

are Farwell v. Tweddle, 10 Abb. N. C. 94; People, Cornell University, v. Davenport, 30 Hub, 177, Reversed 117 N. Y. 549; New England Trust Co. v. Eaton, 140 Mass. 532, 54 Am. Rep. 493; Reynal v. Thebaud, 3 Misc. 187; New York L. Ins. & T. Co. v. Kane, 17 App. Div. 542. We think the court below properly held that the premium upon the bonds could not be charged to the life tenants. Without attempting to show upon which side of the controversy the weight of reason and authority is, the intention of the testatrix, as expressed in the will, must prevail. There were $5,000 of the United States bonds purchased by the trustees, after the erection of the trust, at the same premium. There may be reasons for charging the life tenants with the premium on these bonds that do not apply to the others. But that item is so insignificant that it does not play any part in the controversy. All questions as to the premiums on these bonds were virtually waived on the argument, and we decide nothing as to which party (the life tenant or remainderman) should bear the loss occasioned by the wearing away of the premium. It was admitted at the argument that the parties themselves could adjust that part of the controversy.

and that the defendants were entitled to re- | which it is claimed establish the contrary rule, ceive the whole of the current annual income of the estate, less expenses and commissions, as provided by the surrogate's decree under which the trust was erected. It is said that the intention of the testatrix with respect to the amounts which the beneficiaries were to receive as income from the earnings of the fund, and expressed by the words full in come," was a question of fact, to be determined, not only from the language employed, but from the conditions and relations of the parties, and all the circumstances of the case. Whether that is so or not, we think that when the testatrix directed that her grandchil dren should receive the whole income of these securities, she must have intended the full interest payable thereon, without diminution by reserving a considerable portion of it for the purpose of meeting any depreciation in the market value of the bonds, due to the fact that they were approaching maturity. What ever meaning the words "full income' may convey to the mind of a trained expert in finance, it cannot, we think, be doubted that the common mind must always understand such a direction in a will as meaning the annual interest upon securities. To give to her words now an artificial meaning, based even upon scientific theories, would be to subvert With respect to the stock dividends upon the her intentions, and to take from the objects stock of the Western Union Telegraph Comof her bounty a considerable portion of the pany embraced in the trust, it is important to money which she intended that they should notice the finding of the referee. For the purreceive. The thought that was in the mind poses of the case the parties stipulated, and the of the testatrix with respect to her grandchil- referee found, that in the fall of 1892 the dren, and the provision necessary for their Western Union Telegraph Company, by a capsupport and maintenance, should be carried italization of accumulated earnings made and out. There seems to be no reason to believe retained in its hands, from time to time, inthat she intended that they should receive any creased its capital stock from $86,200,000 to less than the interest. But, quite apart from $100,000.000, and, predicated thereon, made a these considerations, it is said that, upon prin- stock dividend of 10 per cent to its stockholdciple and the great weight of authority, the ers, under which the plaintiffs received in Dedecision of the learned referee was right. cember of that year from the corporation a cerSince the investment must be unquestionably tificate for 25.4 additional shares of stock; safe, in order to preserve the capital as well as making, with the 254 shares previously held to secure income, the premium is paid for by them, 279.4 shares. There is doubtless the benefit of the remainderman as well as much stronger and more weighty authority to the life tenant. The absolute security of gov- support the contention of the appellant with ernment bonds, both to the life tenant and respect to this question than the one just conthe remainderman must always be kept in view. sidered. We will not attempt any extended or They may be purchased at a premium, and critical analysis of the numerous cases in which sold at a still higher one, in which case, if the question whether such a dividend is to be there is a deduction made from the interest, treated as capital or income has been discussed and added to the principal, to balance the and decided. It would enlarge the scope of premium, the remainderman will be doubly the discussion beyond all reasonable limits, and benefited. Some investments will increase in the end answer no useful purpose. It is while others will diminish in value. When all quite sufficient to say that they are in hopeless things are considered, the better rule, it is conflict, though, as it seems to us, the general urged, is to allow these matters to balance trend of the more recent ones, as well as the themselves, as, on the whole, they are quite weight of argument and reason, sustain the delikely to in the end. The arguments against cision in this case. With respect to this quescharging the life tenant in such cases with the tion the appeal is sought to be sustained first premiums have thus been elaborated at great by a class of cases in England, founded upon length in many of the adjudged cases. Hite | Brander v. Brander,4 Ves. Jr. 800, and followed v. lite, 93 Ky. 257, 19 L. R. A. 175; Peckham by Irving v. Houstoun, 4 Pat. App. 521; Paris v. Newton, 15 R. I. 322, 33 Alb. L. J. 424; v. Paris, 10 Ves. Jr. 184; and Re Barton, L. Bergen v. Valentine, 63 How. Pr. 221; Re Pol-R. 5 Eq. 238. Apart from the evident inclinalock, 3 Redf. 100, 118; Shaw v. Cordis, 143 Mass. 443; Hemenway v. Hemenway, 134 Mass. 446; Whittemore v. Beekman, 2 Dem. 276; Furness's Estate, 12 Phila. 130; Meyer v. Simonsen, 5 De G. & S. 723. The authorities cited in support of the appeal on this point, and

tion of the judicial mind at that day, in that country, to favor entails, perpetuities, and accumulations of property, it can hardly be said that these cases were well considered. Lord Chancellor Eldon admitted this in Paris v. Paris, 10 Ves. Jr. 184, where he said: "I confess

of money. It was therefore the substance and intent of the corporate action to distribute earnings, rather than apportion additional capital. There was in fact no additional capital added. The capital of a corporation is the money or property that it has after deducting its debts. The Western Union Telegraph Company had no more property after passing this resolution than it had before, and hence no more capital. When the resolution was carried out, it had, indeed, more capital stock outstanding, as represented by certificates, but not a single dollar had been added to its capital. It had nothing after passing the resolution that it did not have before. So that, within the rule stated by the learned justice, what the shareholder got in this case represented income, and was income. When the substance of the transaction is analyzed, it will be seen that what the corporation really did was to issue to the shareholders its own obligations, in the form of stock certificates against the accumulated earnings which it had on hand; and these certificates, having a market value, could readily be converted into money by the shareholders. So that the transaction was, in substance, a distribution of profits.

I do not think I can safely rest upon any dis- | holders in the form of stock certificates instead tinction between this case and those that have been determined. I have had great difficulty in stating the principle that led to them. But in the case from Scotland great inquiry was made as to the length to which practice had carried the decisions here, and at the rolls; and, as it appeared that it had gone to great length, the House of Lords did not think it proper to disturb that." Then proceeding to notice the argument now made in this case, that there is a distinction between stock and cash dividends, he disposed of that contention with a homely but expressive remark. He said: "As to the distinction between stock and money, that is too thin; and if the law is that this extraordinary profit, if given in the shape of stock, shall be considered capital, it must be capital, if given as money." The rule as thus established in England was followed in Massachusetts, more as one of convenience than of justice, in a line of cases that are not quite consistent with each other. Minot v. Paine, 99 Mass. 101, 96 Am. Dec. 705; Daland v. Will iams, 101 Mass. 571; Leland v. Hayden, 102 Mass. 542; Heard v. Eldredge, 109 Mass. 258, 12 Am. Rep. 687; Rand v. Hubbell, 115 Mass. 461, 15 Am. Rep. 121; Davis v. Jackson, 152 Mass. 58. The rule was adopted there mainly upon the authority of the early English cases to which reference has been made. The Supreme Court of the United States laid down the same rule in Gibbons v. Mahon, 136 U. S. 549, 34 L. ed. 525, evidently following the doctrine of the English and Massachusetts cases. Mr. Justice Gray, who delivered the opinion, was a member of the supreme court of Massachusetts when the rule was established in that state. It cannot be doubted that these cases are authority in support of the appellant's contention, and yet, notwithstanding the exalted character of the courts from which they proceed, they are not binding upon us, except in so far as they appear to be founded upon reason and justice. We have recently had occasion to declare the extent to which we are bound by the decisions of even such a great tribunal as the Supreme Court of the United States, and the weight to be given to its judgments upon such questions of general law as we are now considering. Bath Gaslight Co. v. Claffy, 151 N. Y. 24, 36 L. R. A. 664. Moreover, it is by no means clear that the decision in this case is in conflict with the case of Gibbons v. Mahon, 136 U. S. 549, 34 L. ed. 525. The rule for the determination of the question whether stock dividends were to be treated as income, or an apportionment of capital, was stated by the learned jus tice in the following language: "When a distribution of earnings is made by a corporation among its stockholders, the question whether such distribution is an apportionment of additional stock representing capital, or a division of profits and income, depends upon the substance and intent of the action of the corporation, as manifested by its vote or resolution." In this case the resolution recites that the earnings of the corporation had been withheld from the shareholders for almost ten years, that they had accumulated, and that it was the intention of the directors in taking such action, and the shareholders in consenting to it, to distribute such accumulated earnings to the share

In Riggs v. Cragg, 89 N. Y. 487, it was said by Chief Judge Andrews: "The right to stock dividends as between tenant for life and remainderman, has not been considered by the court of last resort in this state. The decisions upon the subject in other states and in England are conflicting, and it will be the duty of this court, when occasion arises, to seek to settle the question upon principle, and establish a practical rule for the guidance of trustees and others, which shall be just and equitable as between the beneficiaries of the two estates.' This statement with respect to the attitude of this court upon the question was doubtless correct. But, since this utterance was made, cases have been decided in this court which it will be found exceedingly dithcult to reconcile with the doctrine of the early English cases and those of Massachusetts. Re Kernochan, 104 N. Y. 618; Re Gerry, 103 N. Y. 451; Monson v. New York Security & T. Co. 140 N. Y. 498; Re Derey, 153 N. Y. 63. In so far as this court has touched the question at all since the decision in Riggs v. Cragg, nothing certainly can be found in the cases to sustain the contention of the appellant. The question had, however, been passed upon in the supreme court, upon full consideration, and the.doctrine of the English cases and those of Massachusetts had been repudiated. Clarkson v. Clarkson, 18 Barb. 646; Riggs v. Cragg, 26 Hun, 90; Simpson v. Moore, 30 Barb. 637; Goldsmith v. Swift, 25 Hun, 201. The same may be said with respect to the action of the supreme court of Pennsylvania, where it has been held that a stock dividend represented income, and belonged to the life tenant. Earp's Appeal, 28 Pa 368; Moss's Appeal, 83 Pa. 264, 24 Am. Rep. 164. In the latter case it was said: "Where a corporation, having actually made profits, proceeds to distribute such profits amongst the stockholders, the tenant for life would be entitled to receive them, and this without regard to the form of the transaction. Equity, which disregards form and grasps the

to order a sale, the manner of partition is exclusively to be determined by the commissioners and not by the court before issuing the war

rant.

Aldrich v. Husband, 131 Mass. 480; King v. Reed, 11 Gray, 490; Hall v. Hall, 152 Mass. 136; Ramsay v. Humphrey, 162 Mass. 385.

Between tenants in common, partition is the natural and usually the adequate remedy in every case of controversy.

Calvert v. Aldrich, 99 Mass. 74, 96 Am. Dec. 693.

Holmes, J., delivered the opinion of the

court:

This is a petition for partition of a strip of land subject to a passageway, which already has been before the court. Crocker v. Cotting, 166 Mass. 183, 33 L. R. A. 245. In the former case it was decided that the land under the way was not parcel of the adjoining estates. If it was not, then there was no question that it passed by two conveyances to the predecessors in title of the present parties as tenants in common, or that the present parties are tenants in common still. This proceeding was begun in the probate court after the above decision. Pub. Stat. chap. 178, §§ 1, 45. The case is here on appeal from the decree of a single justice of this court reversing the decree of the probate court and granting partition. The petition is resisted only on the grounds that the statute first cited does not apply to land subject to a right of way, and, more especially, that the implications of the purchase in common of the land subject to the easement already belonging to the purchasers are that the land should remain in common, and that it would be inequitable to divide it against that implied understanding.

| lanta Mills v. Mason, 120 Mass. 244, 251; Bradley Fish Co. v. Dudiey, 37 Conn. 136, 144, 145; King v. Hermitage, Carth. 239, 241; Washb. Easem. 518. See Littleton and Moile, in Year Book, 35, Hen. VI. pp. 55, 56, pl. 1. It is true that the petitioners make no mention of the easements to which the land is subject, but there is no indication that they hoped by this proceeding to cut off the respondents' rights of way; and that the respondents shall continue to have those rights may be made a term of the partition, for greater caution.

The fact, if it be one, that at the time of the original purchase in common passageways often were left in common in partitions under the statute, or that ways often were acquired by such a purchase, is far from sufficient to establish a binding surrender of one of the incidents of ownership. Mere inconvenience is equally insufficient. Partition is a matter of right. Mitchell v. Starbuck, 10 Mass. 5, 12; Potter v. Wheeler, 13 Mass. 504, 507; Warner v. Baynes, 2 Ambl. 589; Parker v. Gerard, 1 Ambl. 236; Turner v. Morgan, 8 Ves. Jr. 143, 145, note 1; Mayfair Property Co. v. Johnston [1894] 1 Ch. 508; Hanson v. Willard, 12 Me. 142, 146, 147, 28 Am. Dec. 162; Wood v. Little, 35 Me. 107; Willard v. Willard, 145 U. S. 116, 36 L. ed. 644; Freeman, Cotenancy & Partition, 2d ed. § 433.

But in the case at bar no inconvenience appears. On the contrary, the convenience of the petitioners will or may be met by partition, and that of the defendants not otherwise impaired than by depriving them of a right to prevent the petitioners doing what they want, which may have pecuniary value.

Then, as to the scope of the statute, Pub. Stat. chap. 178, § 1. The language is: "Persons holding lands as tenants in common, may be compelled to divide such lands either by writ of partition at the common law or in the manner provided in this statute." This language applies to the present case as plainly as words can, unless for some reason it is narrowed from what it seems to mean on its face. There is no doubt that land is not withdrawn from partition by the fact that a part of it is subject to easement. Weston v. Foster, 7 Met. 297, 299. There is no greater obstacle in the fact that the whole of it is. Suppose that all the parties wanted a partition, but could not quite agree on the proportions and that, as in this case, it was or might be a great advantage to their several estates to have the land divided, it would strike everyone as monstrous, if, under this statute, the courts should decline to proceed, on the ground that they were not given power. But, if the voluntary jurisdiction extends to this case, the right to proceed in invitum also does. The jurisdiction is not affected by a defendant's

To deal with the last argument first, we discover no such understanding as is supposed. Why the purchasers bought the land under the passageway is pure matter of conjecture. Their right of way was secure. Very possibly, their thoughts went no further than to get rid of outside ownership. Proba bly they did not contemplate partition, because probably they never thought about it, one way or the other. The fact that they would have provided against it if they had thought about it, if established, would not exclude the right to partition as a necessary consequence. But we have no warrant for saying that they would have provided against it. It is equally possible, on the facts before us, that they would have said, "When we get rid of outsiders, if it ever becomes convenient to divide the land, we will do it, keeping up our right of way." If, indeed, the tenancy in common of the servient land by the owners of the dominant estates had extinguished their several easements by merger, a very different ques-recalcitrance. tion would be presented from that with which we are dealing. But the easements remained. They would not be extinguished so long as any difference in the quality of the title to the dominant and servient estates made it in any degree for the interest of the dominant owners to keep them alive. "That unity of titles in the dominant and servient estates should operate to extinguish an easement, the ownership in the two estates should be coextensive." At

In England, when partition was asked and decreed of a moor, the objection was urged that the moor was subject to rights of common. But Sir William Grant, the master of the rolls, answered: "The rights of common are no objection to the commission, as that right will not be in the least affected by the partition, which regards only the freehold and inheritance of the soil. A partition never affects the interests of third parties. It is imma

The rental is an indivisible thing-not so | Wemple, 138 N. Y. 1, 19 L. R. A. 694; People, much from franchises, and so much from Panama R. Co., v. New York Tax Comrs. 104 rolling stock and plant, and so much for land. N. Y. 240. Any apportionment which either the assessors or the court might make must necessarily be mere guess work.

People, Delaware & W. R. Co., v. Reid, 64 Hun, 553; People, Buffalo & S. L. R. Co., v. Fredericks, 48 Barb. 173, Affirmed in 48 N. Y. 70; People, New York Elev. R. Co., v. New York Tax & A. Comrs. 19 Hun, 460, Affirmed 82 N. Y. 459: People, Buffalo & S. L. R. Co., v. Barker, 48 N. Y. 70; People, Wallkill Val-extensive and valuable system of railroads ley R. Co., v. Keator, 36 Hun, 592: People, Fitchburg R. Co., v. Haren, 19 N. Y. S. R. 818; People, Rome, W. & Q. R. Co., v. Hicks, 40 Hun, 593, Affirmed 105 N. Y. 198; People, Panama R. Co., v. New York Tax Comrs 104 N. Y. 246; Pittsburgh, C. C. & St. L. R. Co. v. Backus, 154 U. S. 429, 38 L. ed. 1037; People, Western U. Teleg. Co., v. Dolan, 126 N. Y. 178, 12 L. R. A. 251.