
    In the Matter of the Final Judicial Settlement of the Account of Proceedings of John I. Kane and Francis Larkin, Jr., as Executors, etc., of George A. Brandreth, Deceased. John I. Kane and Francis Larkin, Jr., as Executors, etc., of George A. Brandreth, Deceased, Appellants; Annie A. Brandreth, Respondent.
    
      Dividends on stock—apportionment therreof— the expenses of an executor' need not be included in his account.
    
    On the judicial settlement of the accounts of the executors of a decedent' it appeared that the decedent in his lifetime assigned a number of shares of stock in a corporation to his daughters, reserving to himself the right to receive “all dividends declared upon said stock for the term of his life,” and also the right to vote upon such stock. The donor died November 15, 1897, and a dividend was declared November 34, 1897, the last previous-dividend, having been declared October 28, 1897.
    It appeared that, although the corporation endeavored to pay dividends monthly, the payment of dividends was dependent on the amount of the earnings and that the executive committee had the power to increase or diminish them at its-pleasure or convenience.
    
      Held, that the dividend declared November 24, 1897, was not apportionable between the decedent’s estate and the donees of the stock under section 2720 of the Code of Civil Procedure, as that section only relates to the apportionment of payments made payable or becoming due at fixed periods;
    That the failure of the executor to set forth in his account the items of the necessary expenses actually paid by him for the benefit of the estate did not deprive him of the right to an allowance therefor under section 2730 of the Code of Civil Procedure.
    Appeal by John I. Kane and another, as executors, etc., of George A. Brandreth, deceased, from certain portions of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said surrogate on the 27th day of October, 1900, settling and adjusting their accounts as such executors.
    
      Adrian H. Joline, for the appellants.
    
      Samuel Watson, for the respondent.
   Sewell, J.:

One of the questions involved is whether the estate of. the testator is entitled to an apportionment of a dividend declared upon eleven shares of stock of the Porous Plaster Company on the 24th day of ISTovember, 1897. On the 2d day of. ISTovember, 1893, George A. Brandreth, the testator, transferred to his four daughters eleven shares of stock of the Porous Plaster Company, and they thereupon executed an instrument or power of attorney which recited that the transfer to them was made upon condition that the said George A. Brandreth is to- receive all dividends declared upon said stock for the term of his life, and also upon condition that he has the right to vote upon the stock the same as though no transfer had been made,” and wherein the Porous Plaster Company was authorized “ to pay him all dividends which may be declared upon said stock, to make out the checks payable to his order and to take his receipt for the same.” The power of attorney also contained the provision: It being our intent and object to secure to him the dividends on said stock until his death, and also the right to vote on said stock.”

It is conceded that the Porous Plaster Company declared and paid a dividend on the 28th of.October, 1897, and that no other dividend was declared or paid prior to the death of the testator, which occurred ISTovember 15, 1897. It also appears that another dividend of $200 per share .was declared ISTovember 24, 1897,. and that the dividend upon the eleven shares transferred to the daughters was paid to them.

The testimony of Ralph Brandreth, vice-president of the Porous Plaster Company, constituted the only evidence in regard to the power or practice of the company'as to dividends. He testified : “ We never declared dividends ; we paid them, when we have them — once in two months, once in three months; we tried to pay them-every month a few years ago; it is a close corporationwe pay dividends when we have them; * * * that has been the general payment for the last, two years; * * * thé dividends are paid under the direction of the Executive Committee, ' * * * whenever we see fit to do it. * * ■ * We pay them now usually on the fourth Wednesday of each month. * * * We pay dividends when we earned, them. * * * We can never tell until the money is out. We might have something happen -— an accident or fire, or something of that kind, that would prevent it. * - * * We can’t tell what period of that month it was earned in. The business runs along all the time. It is impossible to tell when it. is earned. It is earned all over, and we cannot tell when it :is earned.” ' • .

The surrogate found “ that the usual monthly dividend at the fate of $200 per share was declared upon the stock of the Porous Plaster Company on October 26, 1897; the next monthly dividend upon. the stock of said Porous Piaster Company was at the rate of $200-per share and was declared upon November 24, 1897.” The surrogate also' found “ that said dividends of October 26, 1897, and November 24, 1897, declared upon the stock of the said Porous Plaster-Company, were not made payable, nor did they become due at fixed periods under any instrument executed after June 7, 1875, of under a last will • and testament taking effect after said date, They were paid, however, at regular monthly intervals.”

The surrogate refused to find as a conclusion of law that the estate of the testator was not entitled to an apportionment of the dividends declared on the 24th day of November, 1897, upon the ■ eleven shares transferred to the four daughters or upon one share of stock bequeathed to Eliza Y. Larkin, and held and decided that the executors were chargeable with seventeen-thirtieths of $2,400, the amount, of the dividend paid on the twelve shares of stock.

It has been repeatedly 'held that in the absence of any-provisions in a contract of sale and purchase of stock the law gives the dividends to the owner of the shares when the dividends are actually declared, and not to the owner of the stock before such declaration.

In Hopper v. Sage (112 N. Y. 530, 533) the court said “ that when a dividend is declared it belongs to the owner- of the stock at that time, but that until such declaration the profits form part of the assets, and an assignment by a stockholder before such declaration carries with it his proportional share of the assets, including all undeclared dividends.”

In Hyatt v. Allen (56 N. Y. 553, 558) the learned judge who spoke for the court said: “ A gift of the profits and dividends of stock for life would not, I think, be held to carry dividends declared after the death of the beneficiary, although made from profits accrued during his life.”

This rule was also announced in Hill v. Newichawanick Company (8 Hun, 459; affd., 71 N. Y. 593); Jermain v. Lake Shore & M. S. Ry. Co. (91 id. 483); Matter of Kernochan (104 id. 618.)

The declaration of a dividend is in legal contemplation a separation of the amount thereof from the assets of the corporation, which holds such amount thereafter as the trustee of the stockholder' at the time of the declaration of the dividend. (Hopper v. Sage, supra.)

The statement of the term or time during which the dividends shall be declared is the essence of the contract. It designates the dividends which the testator was to receive, and not merely the time when he had the right to receive them. The substance and effect of the language employed is, that only the dividends actually declared before the death of the father should be paid by the company, and after that event the right to dividends should become absolute and perfect to the stockholders.

It was the uniform and unbending rule of the common law, recognized both by courts of law and equity, that annuities were not apportionable in respect of time. (Kearney v. Cruikshank, 117 N. Y. 95.)

This rule of the common law has been changed from time to time by statutes making annuities apportionable in respect of time. The Legislature of this State changed - the rule in 1875 (Laws of 1875, chap. 542), but only as to annuities, dividends and other payments, made payable or becoming due at fixed periods under an instrument executed after the passage of that act. This statute was superseded by section 2720 of the Code of Civil Procedure, which by its terms is likewise confined in its operation to certain sums made payable or becoming due at fixed periods under an instrument executed since the passage of the act of 1875.

Ho word or phrase is contained in any instrument which can be regarded as fixing either the measure or time of payment of the dividends. The Porous Plaster Company was under no obligation to pay dividends at any fixed date. It is undisputed that the dividends were paid when they were earned, and that the executive committee had the power to increase or diminish them, and to pay them at their pleasure or convenience. The fact that dividends might in the ordinary course be paid monthly, or that they were paid for a time at regular monthly intervals, did not fix the time of payment within the meaning of this section of the Code.

It, therefore, follows that the executors had no legal-claim to any . part of the dividend declared Hovember 24, 1897; that it was not apportionable, and that the surrogate erred in charging them with any part of it.

The same principle prevails in regard to the dividend upon the share bequeathed to Mrs. Larkin. This share being a specific legacy, it vested as of the time of the death of the testator, and she was from that time entitled to any dividends declared thereon.

The surrogate also erred in refusing to permit one of the executors to testify to the amount and purpose of expenses actually paid by him.

Section 2730 of the Code of Civil Procedure provides that on the settlement of the account of an executor the. surrogate must allow ■to him for his services, over and above his expenses, commissions as therein stated upon all sums of money received and paid out, and that “ In all cases such allowance must be made for their necessary expenses actually paid by them as appears just and reasonable.”

It appears from the language of this section that it is for the surrogate to determine as to the reasonableness and necessity of the claim of the executor, after an examination into the facts and circumstances of the charge. The Code does not in terms or by implication provide, and there is no formal rule of the court which requires the items of the expenses to be included in the account.

It would seem from this circumstance that .an executor should not be deprived of the necessary expenses actually paid by him for the benefit of the estate merely because the account does, not contain them. “ An executor cannot be required to be wiser than what is written.”

However this may be, it is certain that the Legislature did not intend that the account which section 2728 requires to be presented, duly verified, with the petition for a judicial settlement should include any claim that the surrogate must ascertain and adjust in the settlement and be allowed by the decree.

It follows that so much of the decree or order as is appealed from must be set aside and the proceedings remitted to the surrogate for further proceedings in accordance with this opinion, with costs to abide the final award of costs by the surrogate.

Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.

Decree of the Surrogate’s Court of Westchester county modified • so far as it charges the executors with seventeen-thirtieths of the dividends on twelve shares of stock of the Porous Plaster Company, and refuses to allow the disbursements of the executors, and the matter remitted to the surrogate for further proceedings, in accordance with the opinion of Sewell, J., costs to abide the final award of costs.  