McComb v. Frink

Suit by George A. Frink and Esther S. Snyder, administrator and administratrix or C. Brown Snyder, against Elizabeth B. McComb, executrix of Henry S. McComb, for an accounting. There was a decree for complainants, (39 Fed. Rep. 292,) from which both parties appeal. Affirmed.

Statement by Mr. Justice BREWER:

On June 30, 1868, the Southern Railroad Association, an unincorporated association, was organized by certain parties for the purpose of leasing and operating the Mississippi Central Railroad, of which Henry S. McComb had previously obtained a lease for himself and his associates. The capital of this association was $1,500,000, of which Henry S. McComb subscribed $415,000 personally, and also $60,000 as trustee; Josiah Bardwell, $100,000; the balance being taken by 10 associates. On January 14, 1869, this association became incorporated, under a special act of the legislature of Tennessee, and to this corporation the voluntary association, on January 22, 1869, transferred its property. On January 21, 1869, such action was taken by this incorporated company that the capital stock named in its charter, to wit, $2,000,000, was issued to the subscribers of the original unincorporated association in proportion to the amounts of their subscriptions. In this way the subscription in the name of Henry S. McComb, trustee, was enlarged from $60,000 to $80,000, and represented 800 shares of stock, for which 8 certificates of 100 shares each, and numbered from 157 to 164, inclusive, were formally issued by the incorporated company on October 6, 1870, to Henry S. McComb, trustee, and so remained on the books of the company at the time of his death, December 30, 1881. It is undisputed that the subscription was taken originally by McComb as trustee for Josiah Bardwell. In the fall of 1869 this correspondence took place between Bardwell and McComb:

'My Dear McComb: Will you please acknowledge that you hold in 'the Southern Ass'n,' as trustee for [the benefit] or rather for C. B. Snyder, that am't of stock wh. you held as for me, Mr. Snyder having two months since pd. me its costs and interest. Yours truly, J. Bardwell. Boston, Nov. 12, 1869.'