CONNELLY v. WEISFELD

1. Fraud, as a fact, will never be presumed; it must always be clearly and convincingly proved.

2. The burden of proving fraud rests upon the party who asserts it.

3. Where a decedent has chosen and designated persons to act as fiduciaries respecting his estate, Chancery acts with reluctance to remove them from office. So long as an executor or trustee acts in good faith, with ordinary discretion and within the scope of his powers, his acts cannot successfully be assailed.

4. The question of the declaration of a dividend by a corporation, and its amount, time and terms of payment, are entirely within the honest discretion of its board of directors and, in the absence of a proven abuse of that discretion, equity will not interfere.

5. Only a stockholder can complain of the failure of a corporation to declare dividends. Complainant is not a stockholder. She has overlooked a further prerequisite to Chancery directing the declaration of corporate dividends; any such direction would, in the premises, have to be addressed to the members of the board of directors of the corporation. Complainant did not make decedent's sister, who is a director, a party to the cause.

6. Consideration of decedent's will fails to reveal any intent of the decedent that federal estate taxes upon the proceeds paid complainant from policies on her decedent-husband's life, should be paid from his estate, and not by the complainant beneficiary.

7. Chancery's policy has been not to interfere with the jurisdiction of the Orphans Court over the administration of estates except under very special circumstances. There are no circumstances present in this case which make it necessary or expedient for Chancery to supersede the Orphans Court.

8. The corporate defendant, by counter-claim, claims ownership of the Cadillac automobile now in complainant's physical possession. Complainant asserts ownership by her amended bill which reveals possession in her, with the license and title papers held by the corporation, and prays the corporation be ordered to assign title to her. Held, while ownership could have been determined in a law court, complainant could not have there obtained complete relief; that court would not order an assignment of title. The evidence establishes complainant's claim of ownership. Defendant corporation will be directed to deliver the title papers to her and, if necessary, transfer the license to her.

9. Complainant asks that the trustees chosen by the decedent be discharged and others appointed in their place. The trustees have not yet functioned as such; they will not be discharged.

PER CURIAM.

The decree appealed from is affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Woodruff.

For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, FREUND, McLEAN, SCHETTINO, JJ. 13.

For reversal — None.