Page:Federal Reporter, 1st Series, Volume 8.djvu/396

382 FEDERAL fiEPOBTES. �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 chil- dren 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 children 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. �O. Heide Norris, for defendant. �Btjtlee, D. J. Judgment must be entered on the special verdict for the defendant. The testator having died in 1867, the daim of the govemment 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or enjoyment of the property until the death of Maria Mercer, in February, 1872, and the statute imposing the tax was repealed in 1870, no liability to the government accrued.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 fol- lows: �" That any person or persons having iii charge or trust as administrators, executors, or trustees of any legacies or distributive shares arising from Per- sonal property of any kind whatsoever, where the whole amount of such Per- sonal property as aforeaaid shall exceed the sum of $1,000 in actual value passing from any peraon 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 terri- tory, or any part of such property or interest therein, transferred by deed, grant, bargain, sale or gift, naade or intended to take effect in possession or enjoyment after the death of the grantor or bargainor, to any person or per- sons, or to any body or bodies politic or corporate, in trust or othervvise, 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 persous entitled to any beneficiai interest in such property shall be the liueal 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 interest 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 property, where the whole amount of such personal prop ��� �