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NORFOLK & W. RY. CO. V. HALL, State Plaintiff denied the right of the defendTax Com'r of West Virginia.

ant to assess the tax, and paid the amount (Circuit Court of Appeals, Fourth Circuit.

claimed under protest, and the object of the December 20, 1924.)

suit was to recover the amount so paid. De

fendant appeared and interposed sundry No. 2271.

defenses, issue was joined, and the case subMines and minerals E87—Privilege tax for mitted to the trial court under written stip3 F.(20) 254 equitable and uniform rules for ascertain- tended meaning, equivalent to "engaged in ing such value.”

merce.

coal mining held to apply only to mining for ulation, without a jury. The court rendered sale or profit.

judgment against the plaintiff, and disWest Virginia Gross Sales Act, levying an annual privilege tax on “every person engaging tion this writ of error was sued out.

missed the suit, with costs, from which 8cor continuing, within this state, in the business of mining and producing for sale, or for The following defenses were presented on profit, any coal," etc., does not apply to those behalf of the defendant: That the declaraproducing coal as an incident to some other tion was insufficient in law; that the tax was legitimate business in which the coal is used, not paid involuntarily, and hence the amount as a railroad company producing coal from its own mines solely for use in the operation of its thereof could not be recovered back; that road.

the suit was in effect against the state; and

that the tax was lawfully authorized and In Error to the District Court of the assessed. Plaintiff, however, insisted upon United States for the Southern District of its right of recovery because of the unlawWest Virginia, at Huntington; George W. ful assessment against it, apparent on the McClintic, Judge.

face of the act under which the levy was Action at law by the Norfolk & Western made, and because the assessment was void Railway Company against Grant P. Hall,

as imposing a burden upon interstate comState Tax Commissioner of West Virginia.

In this court, the three first-named

defenses were waived, thus presenting soleJudgment for defendant, and plaintiff brings error. Reversed.

ly the question on the merits of whether

the tax was lawfully assessed or not. This John H. Holt, of Huntington, W. Van greatly simplifies the issues, and the case (Theodore W. Reath, of Philadelphia, Pa., turns upon the correct interpretation of the and Holt, Duncan & Holt, of Huntington, act under which the assessment was made. W. Va., on the brief), for plaintiff in er- The portion of the act imposing the tax is ror.

as follows section 2 [a]: “That from and E. T. England, Atty. Gen. of West Vir- after June thirtieth, A. D. nineteen hunginia, Charles Ritchie, Asst. Atty. Gen. of dred and twenty-one, there is hereby levied West Virginia, and John T. Simms, of and shall be collected an annual privilege Charleston, W. Va., for defendant in error.

tax upon every person engaging or continuBefore WOODS, WADDILL, and ROSE, ing, within this state, in the business of Circuit Judges.

mining and producing for sale, or for prof

it, any coal, oil, natural gas, limestone, sand, WADDILL, Circuit Judge. This is a or other mineral product, the amount of writ of error to the judgment of the United each tax to be determined and ascertained States District Court for the Southern Dis- by the value of the articles produced as trict of West Virginia, at Huntington. shown by the gross proceeds derived from Plaintiff in error was plaintiff and defend- the sale thereof by the producer (except ant in error defendant in the District Court, as hereinafter provided), which tax shall and will be so referred to herein.

be equal in amount to two-fifths of one per The action is in assumpsit to recover from centum of the value of the articles as so asthe defendant the sum of $3,004, being the certained. amount of the privilege tax assessed against “If any person liable for any tax under the plaintiff by virtue of the provisions of paragraph (a) shall ship or transport his chapter 110 of the Acts of the General As- products, or any part thereof, out of the sembly of West Virginia of 1921 (chapter state, and before making sale of such prod31a, Barnes’ Code 1923), commonly known ucts, shall further manufacture, transform, as the "Gross Sales Act," on 323,000 tons or consume the same, the value of the prodof coal mined by the plaintiff from its own ucts or articles in the condition or form in mines in the state of West Virginia, from which they existed when transported out of June 30, 1921, to December 31, 1922, and the state, shall be the basis for the assessused in the operation of its engines and ment of the tax imposed in said paragraph; business without the state.

and the tax commissioner shall prescribe

the business of mining coal for benefit or It is a concessuum in this case that the advantage,” and that particularly is this plaintiff owns large tracts of coal lands in true of the word "profit” in the sense in the counties of Mingo and McDowell, W. which it is used, as it is a word of variable Va., and that it maintains regularly equip- meaning and of wider significance, sustainped mines and produces a large annual ton- ing the contention made. nage of coal for use in the operation of its While these suggestions are interesting, railroad within and without the state of they do not impress us as persuasive in deWest Virginia, and that the said railroad termining the construction to be placed upcompany did not mine or produce coal save on this act, which is within itself clear, for its own use in its railroad business. It plain, and unambiguous. The levying of is further conceded that the railroad com- the tax was upon those engaged or continupany was not authorized to engage in the ing within the state in the business of minmining of coal for sale or for profit, noring and producing coal "for sale” or “for did it do so.

profit.” This clearly indicated the persons Plaintiff insists that what it does in the against whom the tax was to be assessed. mining of coal comes within neither the let- The profit had relation to the sale, and the ter nor spirit of the provisions of the act meaning of the word "profit,” read in that in question, assessing the tax, which is that light, is as shown by Webster: "The excess "there is hereby levied, and shall be collect- of the price received over the cost. of proed an annual privilege tax upon every per- ducing and handling or of producing and son engaging or continuing, within this marketing particular goods." The followstate, in the business of mining or produc- ing cases : Rogers-Ruger Co. v. McCord, ing for sale, or for profit, any coal,” etc. 115 Wis 261, 91 N. W. 685; Burdett v. This language makes it entirely clear that Estey (C. C.) 3 F. 566, 569; and Rubber the tax in question was imposed upon per- Co. v. Goodyear, 9 Wall. 788, 19 L. Ed. 566 sons engaged in the business of producing —tend to support this interpretation, and "for sale," or "for profit,” coal or other in the light of the explicit language used no minerals, and has no application to those doubt exists in our mind that the tax assessproducing coal not "for sale" or "for prof- ed has no application to coal produced as it,” but as an incident to some other legiti- in the present case. We have, of course, mate business in which the coal is used. The not lost sight of the fact that in some cirbusiness of mining and producing coal for cumstances the word “profit” may have a sale, or for profit, is a very large and im- broader signification. Herbert v. Shanley portant one, certainly in the state of West Co., 242 U. S. 591, 37 S. Ct. 232, 61 L. Ed. Virginia, and is well recognized as such, and 511. from which large revenue is derived by the The meaning to be placed on the latter state. Had it been the intention and pur section of the act above quoted (the second pose of the Legislature to make the levy ex- paragraph of section 2 of paragraph A), tend to persons or corporations producing relating to products transported without the coal for their own exclusive purposes, and state, does not militate against the views for use in their business alone, it would herein expressed, or serve to sustain the dedoubtless have said so. Certainly it could fendant's contention, as that portion of the have so stated, and did not do so; and in act applies only to persons who are liable the absence of this action on the part of the to the tax assessed in the first paragraph of law-making power, the construction asked the act, and hence coal transported beyond to be placed upon the act by this court the limits of the state, against which there would be tantamount to the court's levying was no tax assessed, would not be liable as the same tax prescribed against those min- claimed. ing and manufacturing coal "for sale or The plaintiff insists that the tax is in"for profit” as a business, against those who valid because it is in violation of the comare not so engaged, but are otherwise us- merce clause of the Constitution as creating ing their private property in and about a burden on interstate commerce. We do their own exclusive business.

not feel that this question need be passed Counsel for the defendant in error insist on in this case, since in our view the act in that this view is perhaps a narrow one to question levies no tax against property such take of this statute, and of the meaning of as is here involved. the words "for sale” and “for profit” as The judgment of the District Court will used in the act, and contend that the lan- be reversed, with costs. guage should have a broader and more ex- Reversed.

SHIRK V. LEE.

of “into as many parts as there may from (Circuit Court of Appeals. Fourth Circuit. time to time be children of mine living or December 20, 1924.)

represented by issue or in default of issue No. 2290.

by a widow, so long as she remains the wid

ow of either of my sons, the issue or in de1. Descent and distribution om 17-Wills my fault of issue the widow taking his, her or

-Heir at law is not seized of property, title their parent's or husband's shares respecto which is vested in trustee.

tively and at his discretion either to apply Under the law of Maryland, an heir at law of a testator, who devised real estate in trust,

for the support of or to pay to each of is not seized of any interest therein which he my children or their issue or in default of can devise by will while the title is in the trus issue, widow, who may be of age, his, her tee, and on reverter only those who are heirs or their own share of such income for his. of the original testator at that time can claim.

her or their own use and to apply so much 2. Wills 7-Will of heir at law held to con. of the income of such of said children or isvey no interest in estate held in trust.

sue as may be under age to his, her or their A testatrix devised real and personal prop- maintenance and education and the residue erty in trust, the income to be divided equally between her three sons or the survivor or sur

to accumulate for such child, children or isvivors of them, the issue, or, lacking issue, the sue, until he, she or they shall respectively widow, of one deceased to take his share, and reach the age of majority and when and as after the death of all the sons, and on the

so soon as all my children be dead and the youngest of their issue reaching majority, the estate to be divided among such issue and the youngest on their issues shall become OL widow, if any surviving, of a son leaving no age, then in trust to divide the principal issue, the issue or widow taking the share of or capital of my estate into so many parts the deceased father or husband. The sons died, as there may then be children of mine repand on the death of the last one there were no

resented by issue or widow. Such issue or issue nor widow of either surviving, but one son, who had previously died, left a widow, to in default of issue, widow, taking it or their whom he devised and bequeathed his residuary parent's or husband's share and to assign, estate, and on her death she devised and be transfer or set over to each his, her or their queathed her residuary estate to complainant.

pro rata share with his or their respective Held, that complainant took no interest in the P estate of the first testatrix, but that estate, be accumulations to hold to him, her or them, cause of the resulting intestacy, passed to her his, her or their heirs or assigns forever." then heirs at law.

The will named the trustee as executor also.

Mrs. Norris left surviving her three chilAppeal from the District Court of the dren, all sons, John, Septimus, and OctaviUnited States for the District of Maryland, us. The income was accordingly divided at Baltimore; Morris A. Soper, Judge. into three parts, and each of the sons re

Suit in equity by David M. Shirk against ceived one-third of it until the death in DeS. Cassandra Lee, individually and as ex- cember, 1891, of Septimus; but he was surecutrix of the will of Octavius J. Norris, vived by a widow, Laura 0. Norris, who redeceased. Decree for defendant, and com- ceived one-third of the income until her plainant appeals. Affirmed.

death in May, 1907. For a few months

thereafter the net income was equally dividW. Conwell Smith, of Baltimore, Md.,

ed between John and Octavius. The forfor appellant.

mer died in August, 1907, without leaving John L. G. Lee, of Baltimore, Md., for

either widow or descendants. For the next appellee.

16 years Octavius, in accordance with the Before WOODS, WADDILL, and ROSE, provisions of his mother's will, retained all Circuit Judges.

the income for his own use. In October,

1923, he, too, passed away, and neither widROSE, Circuit Judge. The controversy ow nor issue survived him. As there was in this case concerns property or the pro- no one left who could claim under the will ceeds of property which at the time of the of the original testatrix, an intestacy manideath in 1865 of Cassandra Norris, a resi- fested itself. dent of Harford county, Md., belonged to [1,2] Septimus at the time of his death her. By her will she devised and be- was a resident of Pennsylvania. By his queathed to her son, Octavius J. Norris, his will, after making some trifling legacies, he heirs and personal representatives, certain left all the residue of his estate, real and real and personal property in trust, to personal, to his wife, Laura 0., absolutely. farm, improve, manage, sell, invest, and She in turn left a will, by which, after makreinvest, and to divide the net income there- ing certain legacies and exercising certain

8 F.(20) 256 powers of appointment having no relation feated by the interposition of trustees to to the property here in controversy, she de- take the legal estate, instead of devolving it vised and bequeathed all the residue of her directly upon parties to take the beneficial estate, real and personal, to her nephew, estates under the power," and that the esDavid M. Shirk, plaintiff below, appellant tate, “becoming vested by way of reverter, here. The defendant and appellee is the ex- can only be claimed by those who could, at ecutrix and residuary devisee and legatee the time of such reverter, show themselves of Octavius. The plaintiff by his bill asked to be heirs to the original donor of the powthat the defendant account for the trust re- er"_"the intermediate heirs of such donor posed in Octavius, and that she be required not having been so seized as to render them to transfer and pay over to him the share new stocks of inheritance." The learned of Septimus in the trust property. He does counsel for the plaintiff argues that the not claim to be an heir at law to the orig- holding in that case cannot be logically recinal testatrix, Cassandra Norris, and, be- onciled with much which was said and decause he does not, the defendant says he cided by the same court in cases preceding has no interest in her estate.

and following it. Nevertheless, so far as Both sides agree that, in the absence of we know, it has never been in terms overany disposition by any one of the sons of ruled, or indeed even so much as criticized, the original testatrix of his interest as heir by the court which made it. at law in her estate, the property would The old common-law rule which the plainnow go to those persons who at the death tiff invokes is a highly technical one. This, of Octavius were her heirs, and that no one perhaps, is especially true when, as in the would be entitled to claim any interest in case before us, there is nothing to show that that property as the heir of any one of her there was any conscious purpose on the part sons. The plaintiff, however, contends that of Septimus to dispose of any part of his the result is different when, as here, one of mother's estate or any interest in it. His the sons by will left all that he could devise intention to do so is deduced from his gento some one not an heir at law of his moth- eral devise of all the residue of his estate. er. In plaintiff's view, it has been settled It is not questioned that such language is for centuries that such a devise amounts to as effective to dispose of whatever possibilitaking a wnstructive seizin of the devisor's ty of reverter of his mother's estate is willshare in the estate to which he is at the able by him as if he had made specific mentime an heir. Defendant replies that such tion of it; but that it may do so, and may is certainly not the case in Maryland, when in consequence change the stock of descent, the devise by the heir at law is made or at- is an illustration of how artificial is the rule tempted to be made at a time when the le- upon which the plaintiff relies, namely, gal title to the ancestor's estate is in a trus- that such a devise amounts to taking a coutee, as in this case she says it was. The structive seizin of the estate. learned judge below was of this opinion, Plaintiff contends that the distinction and accordingly dismissed the plaintiff's made by the Court of Appeals of Maryland bill.

rests upon a narrow basis. True enough, The learned, able, and industrious coun- but the doctrine upon which he must persel for the plaintiff does not deny that upon force put his case is in itself purely techthe facts his case is indistinguishable from nical. Under such circumstances, we see no that of Conner v. Waring, 52 Md. 732, in occasion to differ with the highest court of which the Court of Appeals spoke through the state as to a rule of law controlling the the mouth of the late Judge Alvey. It was descent of real property within it, even if, there said that the result for which the ap- for the purposes of the argument only, it be pellant in that case contended, as does the assumed that we are at liberty to do so. plaintiff in this, had been "altogether de- Affirmed.

3 F.(20)–17

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PENIX V. SLOAN et al.

fred McKnight, of Fort Worth, Tex., Penix, (Circuit Court of Appeals, Fifth Circuit. De

Miller & Perkins, of Mineral Wells, Tex., cember 4, 1924.)

and Capps, Cantey, Hanger & Short, of No. 4278.

Fort Worth, Tex., on the brief), for plain

tiff in error. 1. Trial 76_Responsive answer admissi. R. E. Taylor and J. L. Lackey, both of ble where question is not objected to.

Wichita Falls, Tex. (Taylor & Taylor, of It is not error to overrule an objection to Wichita Tolle To

Wichita Falls, Tex., H. M. Muse, of Hena statement by a witness which was responsive to a question not objected to.

rietta, Tex., and Will C. Austin, of Fort

Worth, Tex., on the brief), for defendants 2. Evidence na 179(1), 186(6)-Parties held

in error. entitled to prove signature to deed not pro. duced and not in their possession; tracing of Before WALKER and BRYAN, Circuit signature to deed held admissible as second- Judges, and DAWKINS, District Judge. ary evidence. Where the genuineness of the signature to

WALKER, Circuit Judge. The defenda deed was in issue, and the deed was not produced, and it did not appear that it had ever ants in error, the heirs at law of Isaac been in the possession of plaintiffs, it was Sayles, deceased, and the administrator of permissible for them to prove the appearance his estate recovered

e his estate, recovered judgment in an action of the signature by secondary evidence, and

of of trespass to try title to described land, such it was admissible.

a suit being the substitute under the law of

Texas for the common-law action of eject3. Evidence Om 343(3)-Certified copy of record of deed held admissible under statute.

ment. The answer of the plaintiff in error Under Vernon's Sayles' Ann. Civ. St. Tex.

to the petition showed that he claimed the 1914, art. 7749. providing that in trespass to land under an alleged deed of said Isaac try title "it shall not be necessary for the plain. Sayles to J. L. Hynote dated January 29, tiff to deraign title beyond a common source, 1920, and filed for record on or about Feband proof of a common source may be made by

ruary 17, 1921, in the county in which the the plaintiff by certified copies of the deeds showing a chain of title to the defendant eman- land sued for is located. The respective ating from and under such common source," parties are herein referred to as plaintiffs certified copies of the record of such deeds are and defendant. admissible.

In the trial of the case the following was 4. Trespass to try title Om 40(4) -Burden of disclosed: At least three days before the proof of genuineness of deed, stated.

commencement of the trial, the defendant Under the provision of Vernon's Sayles' filed among the papers of the suit a certified Ann. Civ. St. Tex. 1914, art. 7749, that a cer.

' copy of a recorded instrument purporting tified copy of a deed in defendant's chain of ti

spass to try

to be a deed to the land in question by Isaac title for the purpose of showing a common Sayles to J. L. Hynote, that instrument source of title, shall not be evidence of title bearing date January 29, 1920, and purin defendant unless offered in evidence by him, portině to have been aplanowledged before

porting to have been acknowledged before and article 3700, providing that any instrument duly recorded shall be admitted in evidence W. B. Hale, a notary public, and filed for without proof of its execution unless the oppo- record on February 17, 1921; and the plainsite party or some one for him shall file an af- tiffs, within three days before the trial, fidavit stating that he believes such instrument filed an affidavit of their counsel. stating to be forged, where a plaintiff files such affidavit in relation to a deed in defendant's chain that he believed such instrument to be a forof title, the subsequent introduction of a certi- gery. Said W. B. Hale died about Febfied copy of such deed by plaintiff for the sole ruary 11, 1920. Isaac Savles died on June purpose of showing a common source of title 7. 1920. The defendant claimed under an does not relieve defendant of the burden of

alleged deed to him from J. L. Hynote dated proving its genuineness.

December 27, 1921. There was no evidence In Error to the District Court of the tending to pr

tending to prove that Hynote was in posUnited States for the Northern District of

session of the land at any time. The land Texas; James Clifton Wilson, Judge.

was in possession of Isaac Sayles during

his lifetime under a deed to him which purAction at law by Hyman J. Sloan, ad- ported to convey a fee-simple title. At the ministrator of the estate of Isaac Sayles, time of the alleged purchase of the land by deceased, and others, against W. H. Penix. the defendant from Hynote. the land was Judgment for plaintiffs, and defendant in the possession of a tenant under a rentbrings error. Affirmed.

al contract with the administrator of the Alfred McKnight, of Fort Worth, Tex. estate of Isaac Sayles. The original of the (T. P. Perkins, of Mineral Wells, Tex., Al- alleged deed to Hynote was not produced.

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