278 F.2d 619 (3rd Cir. 1960), 13050, Schaffer v. Below

Docket Nº:13050.
Citation:278 F.2d 619
Party Name:Alfred M. SCHAFFER, Irving L. Young, James Alderman Evans, Jr., and William Houston Evans, Executors of the Estate of Charles R. Vose, Deceased, v. Ethel May Pressey BELOW, Also Known as Ethel May Bishop, Individually and as Administratrix C.T.A. of the Estate of Cornelius Comstock Below, Also Known as Cory Bishop, Deceased, David Jenckes and Antil
Case Date:April 29, 1960
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 619

278 F.2d 619 (3rd Cir. 1960)

Alfred M. SCHAFFER, Irving L. Young, James Alderman Evans, Jr., and William Houston Evans, Executors of the Estate of Charles R. Vose, Deceased,

v.

Ethel May Pressey BELOW, Also Known as Ethel May Bishop, Individually and as Administratrix C.T.A. of the Estate of Cornelius Comstock Below, Also Known as Cory Bishop, Deceased, David Jenckes and Antilles Enterprises, Inc.

Ethel May BISHOP, Individually and as Administratrix C.T.A. of the Estate of Cory Bishop, Deceased,

v.

Alfred M. SCHAFFER et al.; Executors of the Estate of C.R. Vose, Alfred M. Schaffer, et al., Officers and Directors of Antilles Enterprises, Inc., Antilles Enterprises, Inc., and Ward And Virginia French.

Ethel May BISHOP, Individually and as Administratrix C.T.A. of the Estate of Cory Bishop, Deceased, Appellant.

No. 13050.

United States Court of Appeals, Third Circuit.

April 29, 1960

Argued at Charlotte Amalie Jan. 27, 1960.

Rehearing Denied June 8, 1960.

Page 620

W. H. Beckerleg, San Juan, Puerto Rico, for appellant.

William W. Bailey, Charlotte Amalie, St. Thomas, Virgin Islands, for appellees.

Before WOODBURY, FORMAN and ALDRICH, Circuit Judges.

FORMAN, Circuit Judge.

The extensive factual background of this litigation is fully set out in the opinion of Circuit Judge Maris, who sat as the district court, and is found in Schaffer v. Below, D.C.V.I.1959, 174 F.Supp. 505, 508 .

Page 621

1

Briefly stated, Charles Redfield Vose, Cory Bishop and David Jenckes entered into a joint venture on July 27, 1953, for the development of land on the island of St. John. Bishop and Jenckes, who were partners, contributed about 850 acres of land and Vose $50, 000 in cash. Profits were to be divided on the basis of 30% To Vose and 35% Each to Bishop and Jenckes.

On September 2, 1953, they agreed to expand their venture by purchasing 635 acres of land in St. Thomas with money to be advanced by Vose, who was to be repaid by the joint venture.

On November 25, 1953, the three joint venturers formed a corporation, Antilles Enterprises, Inc., according to the laws of the Municipality of St. Thomas and St. John. Antilles was authorized to issue capital stock of $10, 000 consisting of 100 shares, each having a par value of $100. 2 Vose subscribed for 30 shares, Bishop and Jenckes for 35 shares each.

On the same day they entered into a stockholders' agreement, which appears in full in the district court's opinion. In pertinent part it provided as follows:

"1.

'The consideration for the issuance of all shares shall be the transfer of all interests in Estates Rustenberg, Beverhoudtsberg, Guinea Gut and Sans Souci (St. John) to the Corporation and the transfer by Bishop to the Corporation of the $50, 000 paid by Vose for his interest in the aforementioned estates. Bishop and Jenckes are immediately to endorse their certificates for their shares and deliver same to Vose to hold until Vose is repaid his advances, when the stock is to be redelivered to them. Meanwhile, they have the right to vote on stock, but all dividends, if any, are to be applied to reduction of debt due Vose. Any salaries to be paid shall be reasonable and approved by the parties hereto. Accountings shall be rendered to Vose of corporate activities and finances at least every three months.

"2. The stockholders agree that so long as they are alive, each shall not without consent of all otherwise encumber or dispose of the stock he now owns, or may hereafter acquire, except he may transfer all or part as gift to or for benefit of wife or other member of his direct family, who shall hold it subject to terms of this agreement. No stockholder may sell his stock until indebtedness to Vose has been paid off, except with his written consent, and all certificates of stock of the Corporation owned by stockholders shall be endorsed with following statement:

"'The shares of stock represented by this certificate are subject to the terms of an agreement between the stockholders and corporation dated November 25, 1953, a copy of which has been filed at the Office of the Corporation."'

"4. In the event of death of Vose, the survivors, together, or by the other, if one refuses, shall have the right to purchase from Vose Estate, his stock at a price which shall be the unpaid amount of moneys advanced by him, plus Vose' share of undistributed actually realized profits of Corporation up to the time of

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his death, to be calculated by book value on said date."

"In case of death of either Bishop or Jenckes, Vose and the other survivor, together, or the other if one refuses, shall have the right to purchase from decedent's estate, his stock at book value, but no allowance for good will, payments to be made one-quarter (1/4) on exercise of option to purchase and within six (6) months from qualification of deceased's representatives, and by three (3) notes for balance, one for each of three (3) successive years with interest, and with privilege of prepayment. While not in default, purchaser shall have voting and dividend rights, and on full payment, shall receive decedent's stock duly endorsed for transfer."

"6. All matters involving the major policies of the Corporation or the sale of the assets thereof, shall be determined upon by the unanimous consent of the stockholders of the Corporation." Schaffer v. Below, 174 F.Supp. 505, 509-510.

In accordance with their agreement the land in St. John and the $50, 000 in cash contributed to the joint venture were made over to Antilles, the new corporation. The land had been purchased by Bishop for $24, 000 subject to a mortgage of.$19, 000. It was placed on the books of Antilles at a Valuation of $135, 666.67 and the mortgage of.$19, 000 was carried as a liability. Vose's cash contribution of $50, 000 was so recorded. The sum of $10, 000 was credited to capital stock in payment for the shares subscribed by Vose, Bishop and Jenckes respectively and the balance of $156, 666.67 was carried as surplus.

On June 12, 1954, a second stockholders' agreement was executed by Vose, Bishop, Jenckes and Antilles. That agreement is identical with the first except that it reflects a transfer of 20 shares of stock from Jenckes to Vose who then held 50 shares compared to Bishop's 35 and Jenckes's 15.

On July 19, 1954, Bishop made an assignment to Lind Weber of ten of his shares subject to the stockholders' agreement of June 12, 1954. No certificate was issued to Weber at that time, but on December 24, 1955, one was issued to him by Vose who signed as Treasurer of Antilles.

On April 6, 1955, Bishop granted an option to purchase five of his remaining shares to Jenckes who assigned it to Vose, who exercised it in January 1956.

On April 16, 1955, Bishop assigned to George T. Kelly, III, Trustee for Ethel May Pressey Below (Bishop) ten of his shares of stock in Antilles, subject to the terms of the stockholders' agreement of June 12, 1954. The assignment was occasioned by the following circumstances: Bishop, whose true name was Cornelius Comstock Below, deserted his wife Ethel May Pressey Below in 1939. At the time of the joint venture he was living with a woman named Mildred T. Bishop who signed the conveyance of land as the wife of Cory Bishop, who had assumed her name. The appearance of the legal wife, Ethel May (who apparently adopted the name Bishop adopted by her husband), brought to light the defective conveyance by Mildred and Cory Bishop and made it necessary to obtain a waiver of dower from Ethel May to the property purportedly conveyed by Cory and Mildred Bishop as husband and wife. Ethel May Bishop signed a release of her dower on April 29, 1955. The assignment of the ten shares by Bishop to the trustee, Kelly, of this connection with the procurement was in connection...

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