King Estate , 361 Pa. 629 ( 1948 )

When this matter was last here before,¹ three members of the Court dissented on the grounds (1) that the rule of apportionment applicable to extraordinary corporate distributions of surplus earnings, a portion whereof accumulated prior to the death of the settlor of an interested trust, has no proper place in the disposition of additional shares received by a trust estate under circumstances such as this case presents, (2) that the additional common shares received by the King estate upon the trustee's voluntary exchange of old corpus preferred stock for new preferred on a share for share basis (each of $100 par) were paid and accepted in discharge and extinguishment of the stockholder's right to the accumulated and unpaid dividends on the old preferred and (3) that the proceeds realized by the trustee from its sale of the additional shares represented income and, as such, were distributable in their entirety to the life tenant.²

Without retracting or in any way departing from our former dissentient views, I concur in the action taken by the majority on the instant appeal as constituting an accurate application of the rule heretofore laid down by this court in this estate which, thereupon, became "the law of the case".

Mr. Justice DREW and Mr. Justice PATTERSON join in this concurrence.

¹ King Estate, 355 Pa. 64, 70, 48 A.2d 858.

² Fisher's Estate, 344 Pa. 607, 26 A.2d 192. The one factual difference to be noted between Fisher's Estate and the instant case is that, in the former, the shares owned by the trust estate were exclusively preferred stock, while in King Estate the trust owned both preferred and common shares of the particular corporate issues. The difference, however, is without legal significance: see Re Will Trust; Smith v.Melville, 155 Law Times Reports 249, Chancery Division (1936), which involved a merger and exchange of stocks under circumstances precisely similar to the King Estate and the trust owned both preference and ordinary shares. Compare ReMacIver's Settlement; MacIver v. Rae, 154 Law Times Reports 339, Chancery Division (1935), a consonant earlier decision by the same English court on the same merger and exchange but where, as in Fisher's Estate, supra, the trust ownedonly preference shares.