UNITED STA.TES
V.
BRICE.
381
company, upon certain trusts, for their benefit. Testator's widow died August. 17, 1874. leaving fiv·e children surviving. If upon the above facts the court should be of opinion that the estate which came into the hands of the executors at the death of the widow was liable to a legacy tax, then verdict for plaintiff for $1,630.44. If the court should be of opinion that such estate was liable not only to the tax, but also to a penalty for non-payment, then verdict for plaintiff for $1,826.04. If the court should be of opinion that such estate was not liable to a legacy tax, then verdict for defendant. . John K. Valentine, U. S. Dist. Att'y, for plaintiff. Samuel Dickson and John C. Bullitt, for defendants. BUTLER, D. J. Judgment must be entered for the defenda.nt on the special verdict. The testator having died in 1865, the claim of the government rests on the act of 1864, as modified in 1866. By this act, thus modified, no tax was imposed until the under the will, or intestate laws, came to the possession or enjoyment of their property. The provisions, in this respect, touching legacies and successions, were substantially the same,-if not identical; and the decision in Clapp v. Mason, 94 U. S. 589, therefore, leaves nothing open to discussion. What is said in that case applies with equal force here. This act-differing from that of 1862-created no lien or charge until the government was authorized to demand the tax. N() right accrued until that time. The legacies here involved did not vest in possession or enjoyment until 1874,-four years subsequently to the repeal of the statute. This view renders an examination of other questions discussed by counsel unnecessary. What is, or is not, a vested legacy or devise, under the decisions in this state, is often a. very difficult question. Here we need not consider it.
UNITED STATES 1. LEGACY TAX.
'V.
BRICE, Executor, etc.July 8, 1881.)
(Circuit COU1't, E. D. Pennsylvania.
Upon facts substantially identical with those of the case of U. S. v Haza1'd. just preceding, a legacy 7wld not liable to legacy tax, upon the principles laid down in that case.
Motion for judgment in a suit brought by the United States to recover a legacy tax. The jury, by a special verdict, found substantially the following facts: Singleton A. Mercer died October 14,1867, leaving personal estate valued at $133,866.08. By his will he gave to his wife, Maria Mercer, his household goods and silver plate, absolutely, and the residue of his estate he gave to a *Reported by Frank P. Prichard, Esq, of the Pblladelphla bar.
882
FEDERAL REPORTER.
trustee to pay the income to his wife dUring her life, and after her death to divide the principal among such of his children, or the issue of the deceased children, as should be living at the death of his wife, and, in default of children or their issue, he gave the estate to such persons as would have taken under the intestate law had testator died at that time. Testator's widow died February 14, 1872, leaving three childrlln surviving. If the court should be of opinion that the testator's estate was liable to legacy tax, then verdict for plaintiff for $1,314.85. If the court should be of opinion that the estate was liable also for the penalty for non-payment, then verdict for plaintiff for $1,794.78. If the court should be of opinion that the estate was not liable to the tax, then verdict for defendant.
John K. Valentine, U. S. Dist. Att'y, for plaintiff. G. Heide Norris, for defendant. BUTLER, D. J. Judgment must be entered on the special verdid for the defendant. The testator having died in 1867, the claim of the government rests on the act of 1864, as modified in 1866. As the beneficiaries under the will, whose interests are sought to be taxed, did not become entitled to the possession or enjoyment of the property until the death of Maria Mercer, in February, 1872, and the statute imposing the tax was repealed in 1870, no liability to the government accrued. This case is identical with U. S. v. Hazard, decided at this term, and what is there said need not be repeated here. Section 3 of the act of July 1, 1862, (12 St. 485,) provided as follows: I
I.
"That any person or persons having in charge or trust as administrators, executors, or trustees of any legacies or distributive shares arising from personal property of any kind whatsoever, where the whole amount of such personal property as aforesaid shall exceed the sum of $1,000 in actual value passing from any person who may die after the passage of this act, possessed of such property, either by will or by the intestate laws of any state or territory, or any part of such property or interest therein, transferred by deed, grant, bargain, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to any body or bodies politic or corporate, in trust or otherwise, shall be, and hereby are, made suhject to a duty or tax, to be paid to the United States, as follows, that is to say: "First. Where the person or persons entitled to any beneficial interest in such property shall be the lineal issue or lineal ancestor, brother or sister, to the person who died possessed of such property, as aforesaid, at and after the rate of 75 cents for each and every hundred dollars of the clear value of such interelt in such property." * * *
The act of June 30, 1864, (13 St. 286,) provided: "Sec. 124. That any person or persons having in charge or trust, as admin. istrators, executors, or trustees, any legacies or distributive shares arising from personal where the whole amount of such personal prol'
UNITED STATES V. BRICE.
383
erty, as aforesaid, shall exceed the sum of $1,000 in actual value, passing, after the passage of this act, from any person possessed of such property, either by will or by the intestate laws of any state or territory, or, any personal property or interest therein, transferred by deed, grant, bargain, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or persons, or to any body or bodies politic or corporate, in trust or otherwise, shall be, and hereby are, made subject to a duty or tax, to be paid to the United States, as follows, that is to say: "First. Where the person or persons entitled to any interest in such property shall be the lineal issue or lineal ancestor, brother or sister to the person who died possessed of such property, as aforesaid, at the rate of one dollar for each and every $100 of the clear value of such interest in such property. * * * "Sec. 125. That the tax or duty aforesaid shall be a lien and upon ,the property of every person who may die as aforesaid, for 20 years, or twtil the same shall, within that period, be fully paid to, and discharged by, the United States; and every executor, administrator, or trustee, before payment and dis. t)'ibution to the legatees, or any parties entitled to interest therein, shall pay to the collector or deputy collector of the district of which the deceased person was a resident, the amount of the duty or tax assessed upon such legacy or distributive share. * * * "Sec. 173. That the following acts of congress are hereby repealed, to-wit: The act of July 1, 1862, entitled 'An act to prOVide internal revenue to sup. port the government and to pay interest on the public debt.' * * * Pro'lYided, that all the provisions of said acts shall be ill force for levying and collecting all taxes, duties, and licenses properly assessed or liable to be assessed, or accruing under the provisions' of former acts, or drawbacks, the ri!-!ht t.o which has already accrued, or which may hereafter accrue, under said acts, and for maintaining and continuing liens, fines, penalties, and forfeitures incurred under and by virtue thereof."
Section 125 of the act of June 30,1864, was amended by the ninth section of the act of July 13, 1866, (14 St. 140,) as follows: .. That section 125 be amended by inserting after the words 'that the tax or duty aforesaid' the following: Shall be due and payable whenever the party interested in such legacy, or distributive share, or property, or interest aforesaid, shall become entitled to the possession or enjoyment thereof, or to the beneficial interest in the profits accruing therefrom." * * *
The act of July 14, 1870, (16 St. 256,) provided: "Sec. 3. That on and after the first day of October, 1870, the taxes imposed by the internal revenue laws, now in force, herein specified, be, and the same are, hereby repealed, namely: On articles in Schedule Aj the special tax on . boats, barges, and flats; on legacies and successions; on passports, and on gross receipts. "Sec. 17. * * That all the provisions of said acts shall continue in full force for levying and collecting all taxes properly assessed or liable to be
384
ass(ssed, or accruing under the provisions of former acts, or i1rawbaeks, the right to which has already accrued or which may hereafter accrue under said acts, and for maintaining and continuing liens, fines, penalties, and forfeitures incurred under and by virtue thereof. And this act shall not be construed to affect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby saved."
FUSSELL
v.
HUGHES
and another.-
SAME
GREGG.
(Circuit Cowrt, No D. Ohio, W. D. August, 1881.) 1. VIRGINIA MILITARY DISTRICT IN Omo-ACT OF CONGRESS OF MARCH 23, 1804 -CONSTRUCTION OF-WHEN ENTRIES, SURVEYS, AND RETURNl> REQUIRED TO :BE MADE. By the act of congress of March 23, ]804, entitled "An act to ascertain the
boundary of the lands reserved by the state of Virginia," etc., in Ohio, for the satisfaction of her officers and soldiers, and to limit the period for locating the same, a completed location within three years, and a survey and return thereof, with the original or certified copy of the warrant on which they were founded, to the general land-office, within five years from the passage of the act, were made conditions precedent, without compliance with which no one entitlE¥! to bounty land in that district could obtain a patent; and by section 3 of that act all lands in the reserved territory not thus effectually appropriated within these prescribed times should thenceforth cease to constitute a part of the reserved territory of the Virginia military district, should be released from all claims for such bounty lands by virtue of any location or survey not then completed and returned, and should become thereby the property of the United States, to be. disposed of as part of its public lands, free from any trust in favor of the soldiers of Virginia. 2. SAME-SAME-SUBSEQUENT STATUTES-ExTENDING
TIME OF
ENTRY, E'l'c.-AcT
OF 1804 REVIVED AND CONTINUED.
The subsequent statutes extending the period of time for making valid entries, surveys, and returns of surveys, so as to entitle the party to a patent, although the third section of the act of March 23, 1804, was not repeated therein, are to be taken as reviving the entire law, includmg the third section, as if the latter had been incorporated With each new enactment, so that the consequences of a failure to take the steps required to procure a patent within the periods from time to time limited, prescribed in the third section, follow and apply to each successive extension of the time of grace. 3. SAME.
All entries (lnd surveys made prior to January 1, 1852, and of which no return, with the original warrant or a certified copy thereof, had then been made to the general land office, are vaca1ed and made void, so that they cannot lawfully serve as the basis of patents; the land covered by them lapsing into the general body of the public lands and no longer constituting any portion of the Virginia military reservation of bounty lands. *Reported by J. C. Harper, Esq., of the CincinnatI, bar.