HAYDEN V. OFFICIAL HOTEL RED-BOOK & DIRECTORY CO.
by this court of this will and the law controlling its interpretation seems to render consideration of this phase of the law superfluous. There is no sufficient reason to justify this court in departing from the decision of the supreme court of the state. On the contrary, there is much reason to adhere to it as a correct rule to be adopted in the construction of this will. . The other question submitted in this case, and which may now be disposed of, is, what class of property passes by this will? The Code of Georgia (section 2461) declares: "All property acquired subsequent to the making of the will shall pass un· der it if its provisions be sufficiently broad to embrace such property." The Code containing this provision went into effect January 3, 1863. The supreme court of the state, in Gibbon v. Gibbon, 40 Ga. 562, held that this section of the Code "is prospective only, and after-acquired real estate does not pass under a will made before the Code went into operation. even though the testator did not die until afterwards." The facts here are like the facts there, so far as the question presented is concerned. The will here as there was made before the Code, and here as there the testator died after the Code went into effect. That decision must be controlling here, and the conclusion is that the after-acquired real estate of the testator does not pass by this will. This disposes of the questions. that can now be settled, and' an order may be taken for a reference to a master in order that the condition, extent, and character of the estate may be and the proper accounting had, that final decree may be rendered in the case.
HAYDEN t1. OFFICIAL HOTEL RED-BOOK
Co. et aL
(Oircuit Court, S. D. New York. July 11, 1890.)
STOCXBOLDlIRs-SALE OF CORPORATE PROPERTy-PURCHASE BY MAJORITY.
The stockholders of a corporation financially embarrassed, resolved to wind up the business, and authorized the trustees to sell the property to pay debts. At a sale duly advertised, of which the stockholders had notice, and at which many were present, the property was struck off to the secretary, who was also one of the trustees, and bought in the interest of a combination of stockholders formed in good faith, for their own protection, after it seemed probable that the property would not sell except at a great sacrifice. It appears to have been sold for all that it was worth, and the purchase by the secretary was approved by a majority of tbe stockbolders,-byall except the complainant, Held, that it is not shown that the action of the 'majority was oppressive or in bad faith, that the sale would not be set aside on these facts, and a preliminary injunction will be refused.
In Equity. BiJl by a stockholder to set aside a sale of the corporate property to a combination formed by the majority. 011 motion for a preliminary in..: junction. , Loui8 F. Po8t, for complainant. William J. Fanning, for defendants.
WALLACE, J. It appears upon this motion that the Travelers' Publishing Company, a commerical corporation, became financially embarrassed, and its stockholders, at a meeting called to consider its affairs, concluded to wind up the business, and sell its property to pay its debts, and at this meeting authorized the board of trustees to make sale of the whble or any part of the property at public or private sale, as in their judgment should seem best; that the trustees concluded to sell the property at public auction, and after reasonably advertising the sale, and giVing notice thereof to all the stockholders, they sold that part of it involved in this action; that many of the stockholders, as well as the trustees, were present at the sale, and after several bids were made the property was struck off to one Jacques, the secretary, and one of the trustees of th 19 corporation, he being the highest bidder; that he bought the propertyin the interest of a combination of stockholders, who had united to protect themselves when, and not until, it appeared that the property could not probably be sold except at a great sacrifice; and that, ill1nl6diatelyafterthe purchase by Jacques, he transferred the property to a mi",:corporation, the stockholders of which consisted principally of those stockholders in the other corporation who had united together. , So far as now appears, the price at which the property was sold to Jacques was all that it was worth, and everything that was done had the approval of all the stockholders except the complainant. Under these circumstances the sale cannot be annulled at the suit of the complainant, or of the corporation, assuming that the complainant represents it for the purposes of this action, merely because the property was bought by one of the trustees of the corporation. He was acting with the assent of those who, being the majority of stockholders, were entitled to represent the whole body of beneficiaries; and the rule which forbids a trustee from purchasing for himself or for another the property of which he is the fiduciary does not exteod to a case where htl does so with the consent of all interested. The real question in the case is whether the majority stockholders were !lcting in good faith towards the complainant, as a minority stockholder, in authorizing the sale of the property, and its purchase by the new corporation. The right of the majority stockholders of a corporation established for manufacturing or trading purposes to wind up its affairs, and dispose of its assets, even against the objections of the minority stockholders, whenever it appears that the be no longer advantageously carried on, is well recognized. husiness Treadwell v. Manufacturing Co., 7 Gray, 393; Wilson v. Proprietors, 9 R. 1. 590; Lauman v. Railroad Co., 30 Pa. St. 42. But they cannot be permitted to exercise this right in a manner inconsistent with good faith towards the minority stockholders; and if it is exercised oppressively, and they purchase the property of the corporation for themselves at an iliadequate price, the transaction will not be permitted to stand. Ervin v',Navigation 00., .23 Bllltchf. 517, 27 Fed. Rep. 625·. There are circumstances in· this case which suggest unfavorable inferences; but there is quite convincing evidence that the only purpose of the stockholders who combined together, purchased the property, was to prevent a sacri-
NATIONAL BANK t:. CITY OF RICHMOND.
fice of the property, and enable enough to be realized from it to payoff the debts of the corporation, and that they had no design to disregard the interests of the complainant. It may be that at the final hearing the facts will present a. differen,t aspect, but on the case as it now appears a preliminary injunction should not be granted. The Illotion is denied.
NATIONAL BANK OF VIRGINIA '11. CITY OF RICHMOND
MERCHANTS' NAT. BANK '11. SAME.
(Oircuit Oourt, E. D. Virginia. July 1,1890.)
Under Rev. St. U. S. § 5219, which declares that nothing In the national bank· ing act shall prevent all the shares of stock of a national bank from being induded, in the assessment of the personal property of the owners of ljluch shares, an ment of the entire stock of a national bank in solido against the bank itself is invalid. ' Act Va. Jan. 27, 1l:l90, assessment, is void. attempts to legalize taxes levied upoulluch invaUd: ' , , '
.. SAME-CONSTITUTIONAL L A W . '
In Equity. James Alfred J£YTIe8, for National Bank of Virginia. Pegram &; Stringfellow, for Merchants' National Bank. C. V. Meredith, City Atty .· for defendants. Before BOND and HUGHES, JJ. BOND, J. On July 17, 1889, the defendant Cunningham, who was the collector of taxes for the city of Richmond, presented to the Merchants' National Bank of Virginia, located at Richmond, a bill of taxes assessed upon the of stock of that association, of which thE" lowing is a copy: '
1889. (Ward 3.) The Merchants' National Bank, to City of Richmond, Dr. Tax on shares of stock. - $255,000 Less value of real estate, 53,942 $201,058; at 1.40, $2,814 81
-With a. request that the same be promptly paid, to avoid a penalty, of 5 per imposed by the ordinances of that city. A similar bill for taxes, to the amount of $2,324, was presented to the National Bank of Virginia, as a tax on its shares of stock, which were valued at $216,000, with a deduction of $50,000 for real estate held by the bank. After the presentatiQn of these bills by the collector, the corporationswhoae, sepm:ate bills shares had been assessed fOf the payment of the otCQUJp1ajnt this courtJo elljointhecollectodromproeeeqiqg toeql.;