TAYLOR
fl.
ROBERTSON.
537
enacted, I think it clear that the employe must have been a servant, bound in some degree at least to the duties of a servant, and not, like the petitioner, a mere contractor, bound only to produce or cause to be produced a certain result,- a result of labor, to be sure,-but free tp dispose of his own time and personal efforts according to his pleasure, without responsibility to the other party. In respect to the sums found due the petitioner, the report is eonfirmed, but to the allowance of a lien exceptions sustained. Ordered
accordingly.
TAYLOR and others v. ROBERTSON and others.1 (CVrcuit Court. N. D. illinois. May 24, 1886.)
EQ,UITY-PRACTICE-MASTER'S REPORT-EXCEPTION.
Report of master upon question not referred to him by court is erroneous, and subject to exception by party aggrieved. Small errors in master's statement of an account held not ground for reo quiring him to restate account, even in case in which exceptions to his report were sustained on other grounds.
SAME-ERRORS-RESTATEMENT OF ACCOUNT.
BLODGETT, J. On a former hearing of this case! the question of the complainants' right to redeem the premises in controversy was fully considered, and such right to redeem sustained, and a reference made to one of the masters of the couri; to state the account between the parties. By the master's report, filed on July 15, 1885, it is found that there was due to the widow, heirs, and representatives of David R. Green, on June 12, 1885, the sum of $45,641.66 as the amount required to be paid to redeem the property in question from the lien thereon held by the estate of said David R. Green. By a recent order of the court, the master has brought the statement of account to the first day of April, 1886, showing the amount then due the estate of Green to be $45,342.86. Both complainants and defendants have filed exceptions to the master's report, which have been argued by counsel, and duly considered. The first exception of the complainant is to the finding of the master that the allegations of fmud in the bill are not sustained by the proof. This exception is, I think, well taken, because t4e finding is upon a matter not referred to the master to consider or report upon. The only reference to the master was to take and consider proofs upon the question of the amount to be paid by complainant to redeem the premises in question from the lien of the Green es. tate; all questions as to fraudulent conduct of the defendants, or any of them, having been considered and passed upon at a former hearI Reported by Russell H. Curtis, Ellq., of the Chicago bar. 221 Fed. Rep. 209.
51lS',
"FEDERAL I'tEPOltTER.
ing, and before the reference now in que:stion. The report will there.. , fore be referred hack to the master, with directions to strike out from it the clause stating that he finds the principal allegations in the bill sustained by the proof, except the allegation of fraud against the de-, fendants. ' All the other exceptions of the complainant refer to the allowance of items of credit to the defendants, the widow, heirs, and trustees of David R. Green. Some of these minor items, such as the charge of fur taking possession of the premises in question, and $163.45 for the costs and expenses of a trustee's sale, are, I think, improperly included in the credits given the defendants, but the amount is too small to justify or require a restatement of the account for the purpose of eliminating these items; In all other particulars the master has, I think, adopted what seems to me to be a just and equitable rule of allowance of compensation towards the defendants, and the complainant's exceptions to the master's report are therefore overruled, saving only the first. The exceptions filed by the defendant's go only to the equities of the case, and after a careful review of the conclusions which I announced upon a former bearing, and notwithstanding a due consideration of the able and carefully prepared arguments presented on tbe hearing of, the, exceptions, I still feel compelled to adhere to the decree heretoforeentered ,.in the case. . At the late hearing, both complainants and defendants were allowed but these amendments introduce no features' to amend in the case which have not been considered o.n the former hearing, and were.allowed for the purpose of more sharply and clearly defining on the record thelinelil of attack and defense. The exceptions of the complainants and defendants are overruled, and a decree will be entered aUowing the complainants to redeem, by paying i)1e widow and heirs of David R. Green, deceased, or to Messrs. Paddock & Aldis, their solicitors, the sum of $45,342.86, with interest thereon at the rate of 6 per cent. per annum from the first day of April last, within 90 days from the entry of the decree; and also decreeing that upon the payment of such sum, or, in case said defendants, or their solicitors, shall r/ilfuse to receive the same, on the payment of the same into court, the defendants, widow, heirs, and t:l;ustees of David R. Green, shall convey to complainants all and each of their respective rightld, title, and interest in and to the property in controversyin this case.
UNITED STATES V· .
CO., ETC·
. UNITED STATES 'V. PENNSYLVANIA CO., ETO., Ex'r.'
(Diatlrict Oourt,E. D. PennsylJoania. April 30, 1886.)
1.
TAXATION-LEGACY AND SUCCESSION TAXES-AcT OF CONGRESS OF
JUN1Il80, 1864. While the act of congress of June 30, 1864, relating to legacy and succession taxes, subj ected the property of a decedent to lien, it created no personal liability on the part of the legatee.
2. SAME-AcT OF JULY 13,1866.
The act of congress of July 13, 1866. imposes no liability upon the person having the property in charge until there has been a neglect or refusal to pay, after demand.
Trespass on the Case. The jury found the following special verdict, April 20, 1886: "That Willamina E. Smith died domiciled in the city of Philadelphia, in the month of July, 1864. leaving a last will, by widch she provided that there should be paid to her nephew, G. Wymberly Jones, afterwards known as G. W ..1. De Renne, for his own use, the sum of $2,000; and to .fane Gray the sum 'Of $100; and that all her residuary estate, real and personal, should be held by het· executor in trust during the respective life-times of her brother, George Washington Smith, and her sister, Juliana Smith, to pay over a moiety of the net income thereof to each, and in trust, upon the decease of each, to pay over the pri ncipal of a moiety to his and her issue, if any should then be living, or if there should then be none, to pay over the same to her nephew, G. Wymberly Jones, if he should then be living, and if he should not, to his children, or failing these, to charities; that Juliana Smith died without issue in the year 1867, and George W. Smith died without issue in the year 1876. George W. J. De Renne survived the latt 'T. "That the personal property of which the testatrix died possessed was worth $32,435.95. She also died seized of real estate in the city of Philadelphia valued at $5,000; of real estate in Mifflin county, Pennsylvania. valued at $1,111.10; and of real estate in Blair county, :Pennsylvania, valued at $300. ' "That the testatrix appointed as the executor of her will, her brother, George Washington Smith, and her nephew, George W .·T. De Renne; that on the twentieth of July, 1864, letters testamentary on the said estate were granted by the registE'r of wills of Philadelphia county to George W. Smith, who acted as sole executor until his decease, in the year 1876. "Upon the decease of Juliana Smith, George W. J. De Henne became entitled to a moiety of the personal estate, viz., $16,624.75, which was paid over to him on the first day of November, 1869, by the said executor. A moiety of the real estate also vested in him in fee. Letters testamentary upon the decease of the said Smith were granted by said register of wills to said De Renne on the twenty-sixth day of May, 1876. On the first day of August, 1876, as such executor, he paid to himself the remaining moiety of said estate. "That the said George W. J. De Renne died in the month of August, 1880. Letters testamentary upon his estate were granted to the Pennsylvania Company for Insurance on Lives and (J:ranting Annuities, to whom letters of administration de bonis non cum testamento annexo upon the estate of the said Willamina E. Smith were also granted by said register on the twelfth day of May, 1881. 1 Reported
by C. B. Taylor, Esq., of the Philadclpllia bar.
540
FEDERAL REPORTER.
"That the saId George W. J. De Renne filed his account, showing the dis· tribution of said estate, in the office of said register of wills, on the sixteenth day of November, 1876. Said account was finally confirmed by the orphans' court of said county on the seventeenth day of October, 1877. "That no tax was ever paid to the United States on any portion of said estate. "That the jury are ignorant in point of law on which side they ought, upon these facts, to find a verdict. "That if the court should be of opinion that the defendant is liable for a tax of two per centum upon the legacy of $2,000 to George W. J. De Renne, then they find for the United States for the sum of $40. "That if the court should be of opinion that the defendant is liable for a tax of six per centum on the legacy of $100 to .Jane Gray, then they find for the United States in the additional sum of $6. "That if the court should be of opinion that the said defendant is liable for a tax of two per centum on the legacy of $16,625, paid to George W. J. De Renne in 1867, then they find for the United States in the additional sum of $332.50. "That if the court should be of opinion that the defendant is liable for the tax of one per centum on the life-interest of George W. Smith in the sum of $22,284, then they find for the United States in the additional sum of $222.84, making in all the sum of $601.34. " But if the court be of the opinion that the defendant is not liable in any amount, then they find for the defendant."
John K. Valentine, for the United States. John G. Johnson, for defendant. BUTLER, J. This suit is against the defendant as legal representative of George W. J. De Renne, a legatee under the will of Willamina E. Smith, deceased, who died in Philadelphia, July, 1864. On the facts found by the jury the defendant is entitled to judgment. The statute of 1864, as well as that of 1862, relating to legacy and succession taxes, subjected the property of decedents to lien as therein provided, and specified very particularly the method of enforcing payment. It did not, however, create a personal liability on the part of the legatee. If the act of 1866 is invoked by plaintiff, it is sufficient to say that this act makes the liability of the person having the property in charge, upon a neglect or refusal to pay "after demand." The verdict does not show such demand. Whether the statute is applicable, to the legacy and succession taxes need not therefore be considered.
01'lITED STATES 'D. TRUCKS' ADM'B.
UNITED STATES V. TRUOKS' ADM'B.'
(District Oowrt, E. D. Penn81fl'Dania. May 4,1886.) 1. TAXATION-LEGACY AND SUCCESSION TAXEs-ACT OJ' CONGRESS OJ' JUNB
80, 1864. The act of congress of June 30, 1864, made legacy and succession taxes a lien on all a decedent's property, and directed the executor or administrator to pay the same to the collector.
2.
SAME-SUIT AGAINST EXECUTOR OR ADMINISTRATOR.
The act of congress contains no provision authorizing a suit against the executor or administrator on his neglecting or refusing to pay, but directs that suit shall be brought on the lien. The provision of the act of congress is that suit shan be brought against the individual in possession, and under it no other remedy can be resorted to.
8.
SAME-WHO LIARLE TO SUIT.
Trespass on the Case. John K. Valentine, for the United States. Bernat'd Gilpin and 811muel G. Thompson, for defendant. BUTLER, J. This is one of several suits on stale claims for taxes, recently brought in this court. The statute under which recovery is sought was repealed more than 15 years ago, and the alleged rights of the plaintiff accrued several years earlier. The construction of the statute involved might have been of serious importance to the government before the repeal; now it is not. It is unnecessary, therefore, to do much more than say that the plaintiff is not entitled to recover on the facts found by the jury. The statute provided a specific method for collecting tax on legacies and successions. The tax was made a lien on all the decedent's property, and the administrator or executor directed to pay it to the collector. In case he did not, the statute provided that the lien should be enforcEld by suit against anyone having possession, and the property be sold under the judgment. There is no provision for suit against the executor or administrator; and while such suit might be sustained for the failure to pay, in the absence of express provision for enforcing the lien, (before referred to,) under existing circumstances it cannot. The direction is very specific. On the executor's or administrator's failure to pay, it provides that suit shall be brought against the individual in possession to enforce the lien. The remedy is an ample one, and there is nothing to support an implication that any other was contemplated. Where a statute provides a method for enforcing eampliance with its provisions, ordinarily no other remedy can be resorted to. . While I believe the construction indicated to be the only one admissible, I incline to it the more readily because a different constluction, at this time, would be likely to result in serious injustice,-or 1 Reported
by O. B. Taylor, Esq., of the Philadelphia bar.
FEDERAL Rl!lPORTER.
danger, at least, of injustice,-by requiring individuals to pay, from their own ·means, moneys which should have been paid from the legacies and distributive shares passing through their hands, and would have been 80 paid if the proper officers of the government had discharged their duties. Executors and administrators have been allowed to make distribution under decrees of the state courts, (which were supposed to be a protection,) in ignorance of the claims now Set up. The case of U. S. v. Allen, 9 Ben. 154, did not involve this question, nor was it considered by either counselor court. The incidentalallusion to it iOn the opinion is wholly unimportant. In addition to what ha.s been said, it may be worth while to remark that the subsequent statute of 1866 does provide a remedy against the executor or administrator for willful neglect or refusal to pay. But no such neglect or refusal has been found in this case. UNITED STATES KELLY, Adm'x.
1'.
(DiBtrict Court, E.
n.
May 4, 1886.)
BUTJ,ER, J. For the reasons given in the opinion this day tiled in U. 8. v. Adm'r, ante, 541, judgment must be entered for the defendant on the verdict. While this case arIses under the subsequent statute of 1866, the facts found do not bring the defendant within the provision creating personal liability.
Low v· .l!'ISHER. (Cz'rcuit Court,
n. New Jersey.
MaY' 17,1886.)
In Covenant. Demurrer. Kays, Huston &; Kays, for demurrer· .Francis J. Swayze, contra. If
.
provisions in a contract fot arbitration, and compliance therewith being a condition precedent to a recovery thereon, see Crossley v. Connecticnt Fire Ins. Co., 27 Fed. Rep. 30, and note, 32,
1 Respecting
.,....
"
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