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3 F.(20) 358 from the gatekeeper, and while the crossing the evidence the watchman failed or neglectwas open and unobstructed by the chains. ed to place the chains before the arrival of There was testimony introduced by the de- the train at the crossing at the time that the fendant in conflict with that of the plain- deceased, Zoila Ortega, was approaching tiff, but we think the evidence narrated was said crossing, you cannot find the defendant such that a jury might reasonably find the guilty of negligence with respect to such deceased was in the exercise of due care. chains in the absence of any evidence showBut, under the federal rule, the plaintiff was ing that the deceased, Zoila Ortega, knew of entitled to go to the jury without submis- the existence of such chains and relied upon sion of evidence of the deceased's due care, their being placed upon the approach of a for in the federal courts the burden of the train over said crossing." issue of contributory negligence is upon the The request was properly denied, for defendant. The question of law raised by there was evidence from which the jury the defendant's motion is not whether there might find that the deceased knew that was any evidence from which the jury might the defendant maintained chains and a find that the deceased was in the exercise watchman at the crossing and relied upon of due care, but whether, on all the evi- their being in' position upon the approach dence, no other conclusion could be drawn of a train over the crossing. The defendant than that she was guilty of contributory evidently takes this view of the situation, fault. Upon the latter question the evidence for in its brief it fails to make any reference was in conflict and was properly submitted to this requested instruction. to the jury.

[3] The next error complained of is the [2] The second request was:

refusal of the court to give instruction num"You are instructed that under the evi- bered 9, as follows: dence there was no legal obligation on the “You are instructed that there is no evipart of the defendant company to maintain dence in this case upon which you can base gates, chains, or other protective devices at a verdict of damages in favor of the plainthe crossing where and when the accident tiff.” occurred."

As previously pointed out, this action is On this branch of the case the defendant's brought under section 61 of the Code of contention is that, as a matter of law, the Civil Procedure by the plaintiff as sole and railroad company was under no obligation universal heir of his deceased daughter, to maintain gates or chains at the crossing Zoila, an adult. Section 61 gives à right unless the highway over which the railroad of action for the death of an adult person, crossed was an insular highway, and that it caused by the wrongful act or neglect of was not shown at the trial that the crossing another. to the heir or personal representawas a part of an insular highway. The

tive of such adult and provides that in such evidence, however, showed that the defend

action "such damages may be given as under ant bad undertaken to protect the public

all the circumstances of the case may be by establishing posts and chains to close the

just." The defendant's contention is that, crossing and had stationed a gatekeeper

under this statute, the damages are limited there to operate the chains upon the ap

to pecuniary losses sustained by the plaintiff proach of a train; that such protection was

from being deprived of the deceased's earnreasonable and necessary, and, being such, it was the company's duty to travelers to see

ings that he would have been legally entitled that the chains were in position and the

to if death had not occurred; in other words, crossing closed when a train was approach- that the plaintiff must show that he was ing. Having assumed this duty with respect legally entitled to some portion of the earnto the public. it is not now open to the de- ings of the daughter in order to establish a fendant to contend that the highway was not pecuniary loss. an insular one, and that it was under no T his is not the law. Statutes containing obligation to protect the crossing with posts similar provisions are quite common. Secand chains. The request was properly de- tion 377 of the Code of Civil Procedure of nied.

California and the provisions of the MonThe third request was:

tana Code and of Utah are practically the "You are instructed that the fact that the same. In Rogers v. Rio Grande Western R. company maintained chains and a watch- R. Co., 32 Utah, 367, 90 P. 1075, 125 Am. man at the crossing in question at the time St. Rep. 876, the Supreme Court, in disof the accident and that if you believe from cussing the question, said:

"In the case of the death of an adult titled, while, under a different relationship, child the recovery is limited to the probable the damages of the plaintiff may consist benefits the parents would have received dur- only in the loss of a prospective benefit to ing his lifetime from the deceased child. which he was not legally entitled, but of Such benefits are, however, not to be limited which he had a reasonable expectation of in all cases to mere contributions of money receiving, but for the wrongful death but may consist of the various elements that Michigan Central R. R. v. Vreeland, 227 U. enter into the domestic relations of parent S. 59, 70, 72, 33 S. Ct. 192, 57 L. Ed. 417, and child, living in one family, or other- Ann. Cas. 1914C, 176; Gulf, Colorado, etc., wise. In such cases the aim of the law is Ry. Co. v. McGinnis, 228 U. S. 173, 174, 33 to repair in a pecuniary way the loss sus- S. Ct. 426, 57 L. Ed. 785. tained by the parent.”

The evidence in this case showed that the In Bond v. Railroad, 159 Cal. 270, 113 P. daughter was about 26 years of age; that 366, 48 L. R. A. (N. S.) 687, Ann. Cas. she made her home with her father, though 1912C, 50, the court held:

away at work at the time of the accident; No damages can be given for pain or that, while out at work, she aided him finananguish inflicted on the deceased, but the cially by monthly money payments; and pecuniary loss for which recovery may be that, when she was at home, she assisted him had includes all pecuniary losses which the in the fields and in the home. There was, circumstances establish with reasonable cer- therefore, evidence in the case upon which tainty will be suffered by the beneficiary in to base å verdict of damages, and the rethe future because of the death.

quested instruction was properly refused. See, also, the following cases: Morgan The last request relied upon was: v. Railroad, 95 Cal. 510, 30 P. 603; Munro "You are instructed that, if you believe v. Reclamation Co., 84 Cal. 515, 24 P. 303, from the evidence that the whistle or bell 18 Am. St. Rep. 248; Sneed v. Marysville of the locomotive, or both, were sounded beCo., 149 Cal. 710, 87 P. 376, and Buttefore the train reached the crossing, so that Electric Co. v. Jones, 164 F. 308, 90 C. C. people exercising ordinary care could have A. 240, 18 L. R. A. (N. S.) 1205, and Alder heard such whistle or bell at or near such Co. v. Fleming, 159 F. 593, 86 C. C. A. 419, crossing, then defendant cannot be held to construing the Montana statute.

be negligent, although you may find from Franklin v. South Eastern Ry. Co., 3 the evidence that the chain was not placed." Hurlst. & Nor. 212, was a case where the This request is so indefinite that it might father sued for the death of a son, a young properly have been refused on that ground man earning good wages and well disposed alone. If it means that the defendant could to assist his father, and the court said: not be found to be negligent if the sole fault

“We do not say that it was necessary that of the defendant consisted in its failure to actual benefit should have been derived; a have the chain in place, it was clearly wrong. reasonable expectation is enough, and such The defendant in its brief argues that the reasonable expectation might well exist, court, by refusing to give the instruction, though, from the father not being in need, "deprived the railroad company of an opthe son had never done anything for him.” portunity to have the jury consider the con

And the Supreme Court, in construing the tributory negligence of the deceased, if it federal Employers' Liability Act (Comp. should find that the whistle and bell of the St. 88 8657-8665), under which damages locomotive was sounded before the train are limited to pecuniary losses, recognizes reached the crossing." If the request can that the measure of damages differs accord- be given such meaning, the defendant was ing to the relationship existing between the not harmed, as the court, in its charge, inparties plaintiff and decedent; that under structed the jury fully on the question of à certain relationship an action may be contributory negligence. maintained for the loss of services or sup- The judgment of the District Court is afport to which the beneficiary was legally en- firmed, with costs to the defendant in error.

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V.

361 3 F.(20) 361 KEITH V. JOHNSON,

the income of decedent's estates shall be (Circuit Court of Appeals, Second Circuitred subject to the income tax “and taxed to November 21, 1924,Int:grang

their estates

to be assessed to the

administrator." Section 5 No. 69.

Lup(Comp. St. § 6336e) of the same act proInternal revenue 7 - New York ranater vides that “in computing the net income in

tax paid deductible in computing taxable in the case of a citizen or resident of the Unitcome of estate.

5463.ed States” there may be deducted “taxes In determining the income tax on the estate of a decedent, under Revenue Act 1916, s paid within the year imposed

by 2(b), being Comp. St. 8 6336b, the tax paid by the authority of any state," which must the administrator of personal property under mean imposed on the citizen in question. the Transfer Tax Law of New York is deducti

Since there is no special section providing ble from the income of the estate for the year in which such tax is paid.

for deductions allowed to decedent's estates,

this section must cover these as well as livIn Error to the District Court of the ing persons. As section 2 (b) assesses the United States for the Eastern District of tax against the executor personally, he is New York; Marcus B. Campbell, Judge.

the “citizen or resident” of section 5 who Action by Emma B. Johnson, administra- may deduct the state tax. The case at bar trix of the estate of John B. Johnson, de- therefore turns on whether the New York ceased, against Henry P. Keith, late Collec- inheritance tax is “imposed” on him. At tor of Internal Revenue. Judgment for

least, if it is so imposed, section 5 covers plaintiff, and defendant brings error. Af

bim. That is a question of New York law,

and we are bound by the decisions of the firmed.

New York Court of Appeals on that quesFor opinion below, see 294 F. 964.

tion. Ralph C. Greene, U. S. Atty., of Brook- The New York inheritance tax is imposed lyn, N. Y. (Nelson T. Hartson and Thomas by section 220 of the Tax Law (Consol. 8. Lewis, Jr., both of Washington, D. C., Laws N. Y. c. 60) on "the transfer of propand Wm. A. De Groot, of Brooklyn, N. Y., erty.” This is ambiguous in respect of its of counsel), for plaintiff in error.

incidence, but section 224 enacts that the Sidney V. Lowell, of Brooklyn, N. Y. (B. tax shall be “a lien upon the property transMahler, Harrison Tweed, and Murray, Al- ferred

and the executors drich & Roberts, all of New York City, of of every estate so transferred shall be percounsel), for defendant in error.

sonally liable for such tax until its payBefore HOUGH and MANTON, Circuit ment.” We think that in principle under Judges, and LEARNED HAND, District this provision the tax is "imposed” on the Judge.

executor, and that it was so ruled in Home

Trust Co. v. Law, 204 App. Div. 590, 198 N. LEARNED HAND, District Judge. The Y. S. 710, affirmed in 236 N. Y. 607, 142 N. action is to recover from the collector of E. 303. There the New York inheritance taxes the amount of a tax paid under pro- tax was allowed as a deduction from the test. The defendant demurred to the com- New York income tax upon a decedent's plaint. The District Judge overruled the estate, under section 360 (subdivision 2), demurrer and gave judgment for the plain- which follows verbatim section 5 of the fedtiff. The case was thus:

eral· Revenue Act of 1916. Section 365 The defendant died on March 24, 1917, (subdivision 2) of the New York Income and the plaintiff, his administratrix, filed an Tax Law requires the executor to make the income tax return for the period of her ad- return, and section 369 makes him “subject ministration in that year, from March 26th to all the provisions of this article which to December 31st, deducting the inheritance apply to taxpayers," one of which (section tax paid tò the state of New York, which 351-b), makes the tax a debt against the extinguished the whole income. The deduc- taxpayer. While the Court of Appeals tion was disallowed, and the plaintiff was wrote no opinion, it seems to us necessary to taxed $30,985.53, which she was forced to assume that they regarded the inheritance pay. For the purposes of the case it is tax as “imposed” under section 360 (subdiagreed that all the intestate's estate may be vision 2), because that was the only section regarded as personal property.

which allowed the deduction. If so "imSection 2 (b) of the federal Revenue Act posed,” it must be a duty in personam, beof 1916 (Comp. St. § 6336b) declares that cause the income tax, as has been shown, is *Certlorari granted 45 S. Ct. 463, 69 L. Ed.

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a debt, and the inheritance tax, in form also the words "such other charges against the a debt, could not well be deducted unless it estate as are allowed by the laws of the juwas a debt likewise.

risdiction . . under which the estate Our own decision in Prentiss v. Eisner, is being administered.” It is quite true that 267 F. 16, following U. S. v. Perkins, 163 the reason given was that inheritance taxes U. S. 625, 16 S. Ct. 1073, 41 L. Ed. 287, were “taxes on the right of individual benecompels the same conclusion. There we held ficiaries," and for that reason not "charges that a legatee might not deduct the New that affect the estate as a whole,” Literally York inheritance tax from his income tax. the first clause quoted contradicts U. S. v. If neither he nor the executor may do so, the Perkins, supra, but the cases may be recontax must be solely in rem, a conclusion effec- ciled by understanding that the "charges" tively answered by section 224 above quot intended are only such as are imposed on the ed. The defendant insists that the contrary executor as successor stricti juris, like the is true, the New York inheritance tax being income tax itself, and not such as arise belevied on one entity, and the federal income cause he must distribute the estate, as is the tax on another; each being an "estate" of inheritance tax. There was reason to imthe decedent differently conceived. It is pute such a distinction to Congress, since true that the language of the statutes is not the income tax is collected yearly, while the wholly clear, but we prefer to follow the cus- inheritance tax is levied once and for all. tomary categories while that course is left Both sovereigns might well insist upon an open to us. An executor is vested with the exaction on the whole estate for the privilege personalty of the decedent, and here we are of its transfer. dealing only with personalty. While it is We express no opinion as to the result in true that the New York inheritance tax is the cases of realty, where the executor is made a lien, that may well be only for se- not the successor, or even in the case of specurity, and in any event personal taxes nor- cific legacies. mally create duties in personam, and the Judgment affirmed. executor or administrator is the natural person on whom to levy them.

U. S. v. Woodward, 256 U. S. 635, 41 S. Ct. 615, 65 L. Ed. 1131, in effect holds the same thing. There-the question was wheth

SUAREZ et al. v. SUAREZ. er the federal inheritance tax was deducti- (Circuit Court of Appeals, First Circuit. Jan. ble from income under section 214 of the

uary 6, 1925.) act of 1918 (Comp. St. Ann. Supp. 1919, §

No. 1582. 6336188), which was the same as section 5 of the act of 1916. The federal inheritance ".

1. Wills m661-Bequest held to have become

ineffectual for nonperformance of conditions. tax was by section 201 of the act of 1916

A resident of Spain by his will left one(Comp. St. § 633612b) imposed upon the third of his estate to son, to be selected by transfer of the "net estate of every dece- agreement or by lot, who should live in the famdent.” By section 205 (Comp. St. $ ily residence, subject to the obligation to pro63361/2f), the executor must file the return, yhd 633612.f) the executor must file the retum vide endowments to two of his sisters. Held,

that the essential condition of the bequest was by section 207 (comp. t. 8 035072h) ne the residence, to which the selection between must pay the tax, and by section 209 (Comp. the brothers was merely incident; that under St. § 6336127) it is made a lien. Thus the Spanish Code, 8 795, and Civ. Code Porto Rico, federal inheritance tax is like the New York $ 783, which provide that a compulsory condi

tion must be fulfilled by a legatee when ininheritance tax, unless there is a difference

formed thereof, the selected son was required between section 207 of the act of 1916 and to establish the residence within a reasonable gection 224 of the New York Tax Law. We time and that, where neither son had removed think that to say that the executor "shall

ir schoul from Porto Rico to the family residence in

Spain within 17 years after testator's death, pay” the tax is the same thing as to say that the bequest became ineffectual and the property he shall be "personally liable” for it. became subject to distribution between the

N. Y. Trust Co. v. Eisner, 256 U. S. 350. heirs. 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 2. Evidence Cum 66—Son and beneficiary of tes. 660, held that the New York inheritance tax tator presumed to learn provisions of will. was not a deduction in calculating the feder- The son of a testator, who was also a beneal inheritance tax. That case turned on the

ficiary under his will on a condition to be per

formed by him, may be presumed to have meaning of section 203 (a) (1) of the act learned the contents of the will soon after tesof 1916 (Comp. St. 8 63361/2d), especially tator's death.

Rico.

3 F.(20) 362 Appeal from the Supreme Court of Porto been filed, in which he was a defendant, and

his heirs were substituted for him. Suit in equity by Paz Alvarez Suarez

Suarez

,

Paz Alvarez Suarez, the appellee and against Marcial Suarez y Suarez and others. plaintiff below, who will be hereinafter Decree for complainant, and defendants ap

ignated as plaintiff, was one of the grand

daughters of the testator. In her complaint, peal. Affirmed.

filed in the District Court of San Juan, she Francis G. Caffey, of New York City alleged that the two sons. Marcial and Her. (Cay Coll y Cuchi, of San Juan, Porto Rico, minio, had neither agreed nor settled by lot and George W. Study and Bouvier, Caffey who was to receive the special bequest and & Beale, all of New York City, on the brief), neither had gone to live or reside in the for appellants.

homestead at Punil; that the permanent Before BINGHAM, JOHNSON, and AN

residence of Marcial was in Porto Rico and DERSON, Circuit Judges.

that of Herminio was also there until he changed his residence to the Republic of

Santo Domingo; that neither the said MarJOHNSON, Circuit Judge. This is an cial nor Herminio had constituted an enappeal from a judgment of the Supreme dowment in favor of their sisters, Tarsila Court of Porto Rico.

and Sirena, as directed by the testator in Juan Suarez Rodriguez died on June 2, said special bequest; that the greater part 1902, in Spain, testate. In his will, which

of the testator's estate was situated on the was made in 1893, he designated as his sole Island of Porto Rico, and prayed judgment and universal heirs his sons Marcial and Her

of the court declaring that none of the sons minio, three daughters, and the children of named in this special bequest had acquired & deceased daughter, and made the following any interest under it or, in the language of special bequest:

the prayer, that the special bequest "had be"It is the will of the testator to make a come ineffectual for the following reasons”; special bequest of a third of all his prop- and that the property included in it be diserty and rights and of another third of the tributed in equal parts among all the heirs same property, of which he may freely dis- of the testator. pose, to his said sons, Marcial, Candido and The defendants, appellants, in their anHerminio Suarez, the said bequest to be as- swer alleged generally that the complaint signed to the one of the three said sons who did not state a cause of action and denied shall live and reside in the testator's family that there had been no designation of the son residence at Punil; and for this purpose the who was to receive the special bequest, alsaid three sons shall agree upon the one to leging that, in accordance with its provireceive the special bequest or, if not, the mat- sions. Herminio and Marcial had cast. lots ter shall be settled by lot; and the favored

for the said special bequest and that Mard

for thes or selected one shall receive in fee the en- cial had won: also alleging that their resi. tire special bequest, the usufruct of the re- dence in Porto Rico was temporary and that spective third parts passing to those who it was the intention of th may be excluded from the said special be- cial Suarez, to return to Punil. Spain. to request, and the obligation falling on the one side permanently in the homestead there: selected by lot or agreement to provide for and that with such intention, he in como his sisters, Tarsila and Sirena, endowments with his brother Herminio, had repaired the equal to those given to the other sisters, Au- homestead. They also denied that they had rora and Justa, whether the said sisters mar- failed to

failed to provide an endowment for their ry or remain unmarried and whether they two sisters as required in said special belive with the brother who receives the spe- anest. cial bequest or elsewhere."

The trial court found that the plaintiff All three sons named in this special be- had introduced no evidence to show that the quest resided in Porto Rico at the date of designation of the heir to receive the special the execution of the will. Marcial has re- bequest had not been made by agreement or sided there ever since. Candido continued by lot, and rendered judgment dismissing his residence there until he died, prior to his the complaint. father, in 1901, unmarried; and Herminio The Supreme Court in its opinion disrelived there until he went to Santo Domingo garded the question raised by the assignand then to Madrid, Spain, where he died ment of errors from the District Court, in 1919, after the complaint in this case had which was whether the burden was on the

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