FOWLER, S.
[1] There is now no ambiguity or doubt about the law of the state concerning what corporate dividends are capital and what are income as between life tenants and remaindermen. McLouth v. Hunt, 154 N. Y. 179, 48 N. E. 548, 39 L. R. A. 230; Lowry v. Farmers’ Loan & Trust Co., 172 N. Y. 137, 64 N. E. 796; Robertson v. De Brulatour, 111 App. Div. 882, 98 N. Y. Supp. 15, affirmed 188 N. Y. 301, 80 N. E. 938. The determination depends in each instance on matter of fact, or on the evidence, in other words. If in point of fact corporate distributions represent surplus earnings, they are dividends, and not capital, whatever called. But increment of capital values is not earnings as to life tenants.
[2] On the evidence, or rather for the want of evidence, before the learned referee whose report is now before me on exceptions thereto, the surrogate is of the opinion that such referee should have overruled the objections to the trustee’s account in respect of the Pullman stock distribution of 1910. The only evidence discoverable on this point in the record is the resolution of the stockholders of the Pullman Company, dated March 21, 1910. If the new stock referred to in such resolution represented an increment of capital, and not earnings, as inferentially stated in such resolution, the trustees were prima facie justified in treating such new stock as capital. While courts sometimes infer from slight evidence that a stock dividend is income, rather than capital, they cannot so infer in the face of evidence to the contrary. The resolution in question was some evidence to the contrary. It was sufficient, in any event, to put the objectors to their proofs. But no such proofs were adduced. There is much colloquy of counsel in the record, but nothing susceptible of being regarded as evidence by the law of evidence! Exceptions 1, 2, 3, 4, and 5 to the referee’s report are sustained.
[3] The learned referee, as I conceive, had no authority on this accounting to disturb the decrees made by this court on former accountings. Matter of Biting, 93 App. Div. 516, 519, 87 N. Y. Supp. 833. Therefore exceptions 6, 7, 8, and 9 to the referee’s report are also sustained.
Proceed accordingly.
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