"whereas" it was used by the directors, "therefore resolved that a dividend of twenty (20) per cent be declared upon the common stock of this company for the period ending September 30th, 1891, payable on and after 31st day of December, 1891." If the resolution had stopped there it could hardly be doubted that the life tenants were entitled to at least a portion of such a dividend, and are they to be deprived of all interest in the dividend simply because it was made payable "in common stock of the company"? We think not. This stock was intended "for the sole and separate use and benefit" of the daughters of the testator during their lives, according to the terms of the will. He wanted them to enjoy the use and benefit of his property as long as they lived. He unquestionably did not contemplate having all the income on over $300,000 of his property added to the capital from time to time, although he knew, or was presumed to know, that the directors could use it for the legitimate purposes of the company if they deemed it proper. In his original will he expressed the wish that all investments in railroad stocks, or in any other like securities left by him, should be kept intact by the trustees as they existed at the time of his death, except such as might become payable or redeemable.

It is true he modified that in the codicil to his will, and authorized a sale of his stock, etc, whenever in the judgment of all three of his trustees a sale would be advantageous to those interested; but, if he had supposed that there would be any likelihood of his children being deprived of the income from this stock, he would never have inserted such a provision in his original will, or have made the right to sell dependent upon the judgment "of all three" trustees, one of whom had a contingent 558 interest in all the property after the life estate of the daughters, although he had the most implicit confidence in them.

It is clear that the testator desired his daughters to get the benefit of the income of all his property, and it is equally clear that the company intended to compensate the stockholders for the loss of the income of a definite period, used by them by declaring a dividend to cover that period, viz., "the period ending September 30, 1891."

This court has in the case of State v. Baltimore etc. R. R. Co., 6 Gill, 363, expressly decided that the railroad company can refund to the stockholders the net revenue which had

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 ascertained 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 v. Mahon, 54 Am. Rep. 264.

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 VOID 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 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,