In the absence of evidence whether a certain fund or piece of property in the hands of an executor is capital, or income, the presumption of fact is that it is capital.
CLARK, J.
In Peirce v. Burroughs, 58 N.H. 302, it is said that in the absence of all evidence on the question whether a certain fund or piece of property in the hands of an executor is capital, or income, the presumption of fact is that it is capital. The language of the court in that case is equally applicable to the facts of the present case: "There being no evidence that the right to take new shares was property, or the proceeds of property earned by the corporations, or that it was in any sense income or profits, it is capital belonging to the remainder-men."
Case discharged.
CHASE, J., did not sit: the others concurred.