These two causes involve similar questions and may properly be included in a single opinion.
Each is brought by shareholders in a corporation, claiming to obtain the benefit of a deduction from the market value of their shares, under General Statutes, § 3836. The complaint in each action contains a paragraph alleging that on October 1st, 1899, a portion of the capital of the corporation was invested in certain real estate on which it was then assessed and paid taxes. These allegations were denied, and a simple issue of fact was thus closed.
This issue the Superior Court has not found, in either case. Instead of this, it has found, in each, certain evidential facts, and asked our advice as to what judgment should be rendered upon them.
The propriety or necessity of drawing conclusions of fact from other facts can seldom, if ever, be made the subject of a reservation. Corbin v. American Mills, 27 Conn. 274, 278. In the absence of a finding by the trial court as to the main issue, which has been described, the record in neither cause presents any question of law as to which our advice can be properly asked.
Since, however, the parties differ as to the construction to *Page 37 be placed on some expressions in our opinion given upon the former hearing, we think it proper to say, that to secure the benefits of the deduction provided for by General Statutes, § 3836, it is not indispensable that the part of the capital of the company invested in taxable real estate should be entered on its books under the heading of "Capital" or "Capital and Surplus." Such an entry would be important evidence as to the source of the funds thus invested, but it would not be conclusive evidence, nor is it, in the nature of things, the only evidence. The inquiry is one as to matters not of form but of substance. The real question is whether such real estate be part of that capital or capital and surplus representing, at the date of the return to the town assessors, the excess in value of the net assets above the amount of corporate debts and liabilities, in which the shareholders are directly interested. Batterson'sAppeal, 72 Conn. 374, 376. It is this excess or "surplus of corporate property," which is treated as equitably owned by the shareholders and mainly builds up the market value of their shares. Batterson v. Hartford, 50 Conn. 558,562; Security Co. v. Hartford, 61 id. 89. Land acquired and held for the purpose of responding to particular liabilities, whether through action by the corporation or by force of statutory requirements, would not be a part of such capital or surplus, to any greater extent than that of its value after deducting the amount of such liabilities.
The causes are remanded to the Superior Court, to be proceeded with according to law.
No costs will be taxed in this court.
In this opinion the other judges concurred.