16 F. Cas. 1220 | U.S. Circuit Court for the District of Massachusetts | 1872
This is an action to recover back the legacy duties assessed upon certain bequests made by the late Mr. May, who died February 23, 1870, before, but less than one year before, the repeal of the .duty. The act of July 14, 1870, repealed the tax on legacies and successions on and after the first day of October, then next, section 17 saving “all taxes properly assessed or liable to be assessed, or accruing under the provisions of former acts or drawbacks, the right to which has already accrued or which may hereafter accrue under said acts.” The plaintiff’s position is: That legacies are payable at the earliest in a year after the death of the testator, and that by statute of July 13, 1806, § 9 (14 Stat. 140). the legacy duties are payable when the legacy is payable; that the United States had no right or interest in the tax until it became payable, and thus the saving clause of the repealing act is intended
There is another cause of inquiry which strengthens this argument. The statute applies to successions as well as legacies; and many successions vest not only in right, but in possession immediately on the death of the ancestor. Thus real estate descends at once to the heir; and there is no doubt that the succession duty may be assessed at once, because there is the express provision of section 137, 13 Stat. 2S9; and section 141 carefully provides that, if the succession shall be reduced by the payment of debts or otherwise, the tax, or a proportionate part thereof, shall be refunded; or, by section 143, 13 Stat. 290, the commissioner may arrange the duty by compromise in cases of doubt or difficulty. Then take the case of a specific bequest to the executor himself, or a specific devise of lands, or the case where the executor is himself the residuary legatee, and gives bond under our statute to pay debts and legacies, in all these eases it seems to me the duty not only accrues, but is or may be assessable within the year. Considering, therefore, that the statute was intended to be uniform, and that the construction contended for by the plaintiffs will make its application vary with the nature of the property and other circumstances, and for the other reasons above given, we think the better opinion is that these duties were rightly assessed, and that the judgment must be for the defendant.