ON MOTION FOR REHEARING-.
GRAVES, P. J.I. We are urged to at least revise our judgment in the motion for rehearing. It is urged that by oversight the court allowed the recovery of 200 shares of stock in the new corporation, when it should have been 100 shares. The brief for the appellant is cited on the question. The court had fully read the brief and the direction as to a recovery for $10,000, or one-fifth of this stock, was deliberately made. Our views then and our views now are that Fleming and Dobyne are trustees ex maleficio, and as such are responsible for all that they wrongfully acquired from the Landis heirs, together with the - increase and profits thereof. They got, subject to the claim of the widow, one-fifth of the stock in the old company and this furnished the sole basis for one-fifth of the stock in the new company: The old company was a $100,000 organization, and in it the Landis interest was $20,000, or 200 shares -of $100 each. The new corporation is a $50,000 corporation, and we have only directed a recovery for $10,000 of stock or one-fifth of the stock in the new company. The number of shares is the same because in the old corporation the shares were $100 each and in the new only $50 each. This part of the opinion and direction to the lower court will not be modified.
II. It is urged that even if this be true, yet the five heirs should not recover all of such interest because the widow had an undivided one-sixth of this one-fifth interest in both of the corporations. Hpon reflection we are inclined to grant this contention *574to the extent of not permitting the plaintiffs to recover more than five-sixths of this stock. That is to say, that they shall only recover five-sixths of the $10,000 in stock, together with the dividends which have been-paid thereon. Not only so, bnt they should receive interest at 6 per cent on each dividend from the date of its payment to Fleming and Dobyne, a matter which we intended, but did not make clear in the original opinion.
III. In the above we are not undertaking to say who owns this interest of the widow, because she is not a party to this suit. "What we are saying is that the children are only entitled to recover five-sixths of the interest at one time belonging to the Landis estate.
It is urged that under Mrs. Landis’s testimony she held the stock for herself and the children and that she has at least parted with her share. This may be true, but we do not further indicate our views for the reasons above stated. This, however, brings up another question, i. e., what shall we do with the $1000 paid to Mrs. Landis. In her testimony it is urged that she says she was only selling her interest, and if so then we should leave out of consideration the' $1000 paid. We were impressed before with the idea that from all the facts in the case she was trying to' and intended to sell the whole interest, and that the purchasers were trying to buy the whole interest. Such sale was wrongful upon the part of both seller and buyer, with the admitted knowledge of the trust. The question is, therefore, what shall we do with the $1000 paid? In as much as we have limited the plaintiff’s recovery as above indicated, it now occurs to us that the defendants should be allowed the $700 which went to discharge the lien on this property. We previously allowed the full $1000, but it is now insisted that we should not have allowed this. To our mind the money *575of the defendants at least to the extent of $700 went to discharge a valid lien upon the property of these heirs, and they should he charged with such sum of $700 and interest thereon at the rate of six per cent to the date of the accounting heretofore directed in the original opinion. To this extent of changing the amount from $1000 to $700, this direction of the original opinion is modified. . '
With the modifications hereinabove indicated the trial court will proceed to follow out the directions heretofore given in this case.
Upon the motion for rehearing it is therefore ordered that our judgment and opinion be modified as hereinabove indicated, and that the motion be overruled.