Dissenting Opinion
Saylor, J.,December 20, 1957. — I dissent from that part of the opinion of the court en banc which holds that market value and not book value is to be employed in computing the number of shares to be distributed. I agree with the majority that this question was not presented in Arrott Estate, 383 Pa. 228 (1955), and expressly so stated in my adjudication, noting that “while Arrott Estate . . . did not involve a decision on this point, the opinion in that case *74is relevant”. For the reasons stated in the adjudication I still consider that opinion to be relevant. At page 232 thereof the Supreme Court quoted with approval Baird’s Estate, 299 Pa. 39:
“ ‘We have stated indiscriminately in our decisions that intact value is actual, intrinsic, liquidating or book value, but the customary standard of measurement used in the cases is book value. The prima facie standard of measurement of intact value of trust estates, the income of which is to be paid to a beneficiary, with remainder over, is the book value; and this standard remains fixed unless it can be established that the elements making up the book value are not true values . . .’ ”. (Italics supplied by the Supreme Court.)
In my adjudication Baird’s Estate, 299 Pa. 39, 42 (1930), was also quoted for the proposition that “market value has been eliminated as a standard of measurement”. Also cited were Packer’s Estate (No. 1), 291 Pa. 194, 197 (1927), and Moss’s Appeal, 83 Pa. 264, 271 (1877).
In the latter case Mr. Justice Paxson said, page 271:
“Market values are well enough upon a question of distribution, where the parties are about to realize; but upon a question of values between life-tenants and remaindermen, a judicial decree should go down through the shifting sands of the stock market until it reaches the solid rock of actual values. The application of any other rule might work serious injustice.”
Up to this moment the Supreme Court of Pennsylvania has consistently declared that book value is the proper standard. There does not appear to be any qualification in that court’s statement of the rule which would justify a departure therefrom at this time.
The argument has been made by the learned authors quoted approvingly in the majority opinion that the *75adoption of book value results in a comparison of cabbages with kings. In Arrott Estate it was claimed that the conclusion actually reached by the court would cause an absurd and unjust result because it would contrast apples with oranges and peaches with lemons.
Arrott Estate rejected the force of similes because the court is not concerned with matching pairs whatever the diversity of the components but with finding the present value. The dollars which in the instant case were transmuted into stock by capitalization and are now to be allocated to the life tenants were not purchased in the market place; nor were the shares of stock representing those dollars purchased there. The question is only what is the value of those shares of stock.
Concededly there is much merit favoring the view of the majority. However, the appellate cases decided to date warrant adherence to the rule that book value must be used!
Harvey Estate
Klein, P. J., December 20, 1957. — R. Wistar Harvey died in 1939, leaving a will, which provided for payment of income to four designated individuals for life, with remainders over upon the termination of the trust to the Pennsylvania Hospital and the Philadelphia Museum of Art.
All of the questions raised by the exceptions arise from transactions involving shares of common stock owned by decedent when he died and retained by the trustees in the trust portfolio.
The first problem involves stock of the General Electric Company. In 1954, the corporation recapitalized its common stock and issued three new shares in exchange for each old share. In order to supply the capi*76tal needed to support the new issue, the company-transferred on its books $252,000,000 from the earned surplus account to the capital stock account.
Counsel for the remainder interests contend that such a stock split, supported by capitalization of earned surplus, is not an occasion warranting an apportionment. The auditing judge concluded that it is. We are in full accord with this ruling. This precise question was discussed at considerable length in Cunningham Estate, supra, in an opinion filed of even date herewith. It is not necessary for us to repeat here what has been said in that case.
Decedent also died possessed of certain shares of the common stock of Insurance Company of North America and Fire Association of Philadelphia. These companies, in the conduct of their business since decedent’s death, engaged in several transactions which the parties in interest in the present case agree by stipulation are occasions warranting apportionments.
The auditing judge ruled, and we agree with him, that the unrealized appreciation on the investments held by the two companies are not to be included within the category of “earnings” subject to apportionment. We are also in accord with his ruling that this unrealized appreciation must nevertheless be included in determining the value of the stock to be distributed to the life tenant. Any apparent inconsistency between these two conclusions has been fully explained by the auditing judge in his discussion of the question in the adjudication.
The exceptions are all dismissed and the adjudication, as modified by the supplemental adjudication, is confirmed absolutely.