3 F.(2d) 358 from the gatekeeper, and while the crossing was open and unobstructed by the chains. There was testimony introduced by the defendant in conflict with that of the plaintiff, but we think the evidence narrated was such that a jury might reasonably find the deceased was in the exercise of due care. But, under the federal rule, the plaintiff was entitled to go to the jury without submission of evidence of the deceased's due care, for in the federal courts the burden of the issue of contributory negligence is upon the defendant. The question of law raised by the defendant's motion is not whether there was any evidence from which the jury might find that the deceased was in the exercise of due care, but whether, on all the evidence, no other conclusion could be drawn than that she was guilty of contributory fault. Upon the latter question the evidence was in conflict and was properly submitted to the jury. [2] The second request was: "You are instructed that under the evidence there was no legal obligation on the part of the defendant company to maintain gates, chains, or other protective devices at the crossing where and when the accident occurred." On this branch of the case the defendant's contention is that, as a matter of law, the railroad company was under no obligation to maintain gates or chains at the crossing unless the highway over which the railroad crossed was an insular highway, and that it was not shown at the trial that the crossing was a part of an insular highway. The evidence, however, showed that the defendant had undertaken to protect the public by establishing posts and chains to close the crossing and had stationed a gatekeeper there to operate the chains upon the approach of a train; that such protection was reasonable and necessary, and, being such, it was the company's duty to travelers to see that the chains were in position and the crossing closed when a train was approaching. Having assumed this duty with respect to the public, it is not now open to the defendant to contend that the highway was not an insular one, and that it was under no obligation to protect the crossing with posts and chains. The request was properly denied. The third request was: "You are instructed that the fact that the company maintained chains and a watchman at the crossing in question at the time of the accident and that if you believe from the evidence the watchman failed or neglected to place the chains before the arrival of the train at the crossing at the time that the deceased, Zoila Ortega, was approaching said crossing, you cannot find the defendant guilty of negligence with respect to such chains in the absence of any evidence showing that the deceased, Zoila Ortega, knew of the existence of such chains and relied upon their being placed upon the approach of a train over said crossing." The request was properly denied, for there was evidence from which the jury might find that the deceased knew that the defendant maintained chains and a watchman at the crossing and relied upon their being in position upon the approach of a train over the crossing. The defendant evidently takes this view of the situation, for in its brief it fails to make any reference to this requested instruction. [3] The next error complained of is the refusal of the court to give instruction numbered 9, as follows: "You are instructed that there is no evidence in this case upon which you can base a verdict of damages in favor of the plaintiff." As previously pointed out, this action is brought under section 61 of the Code of Civil Procedure by the plaintiff as sole and universal heir of his deceased daughter, Zoila, an adult. Section 61 gives a right of action for the death of an adult person, caused by the wrongful act or neglect of another, to the heir or personal representative of such adult and provides that in such action "such damages may be given as under all the circumstances of the case may be just." The defendant's contention is that, under this statute, the damages are limited to pecuniary losses sustained by the plaintiff from being deprived of the deceased's earnings that he would have been legally entitled to if death had not occurred; in other words, that the plaintiff must show that he was legally entitled to some portion of the earnings of the daughter in order to establish a pecuniary loss. This is not the law. Statutes containing similar provisions are quite common. Section 377 of the Code of Civil Procedure of California and the provisions of the Montana Code and of Utah are practically the same. In Rogers v. Rio Grande Western R. R. Co., 32 Utah, 367, 90 P. 1075, 125 Am. St. Rep. 876, the Supreme Court, in discussing the question, said: "In the case of the death of an adult child the recovery is limited to the probable benefits the parents would have received during his lifetime from the deceased child. Such benefits are, however, not to be limited in all cases to mere contributions of money, but may consist of the various elements that enter into the domestic relations of parent and child, living in one family, or otherwise. In such cases the aim of the law is to repair in a pecuniary way the loss sustained by the parent." In Bond v. Railroad, 159 Cal. 270, 113 P. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50, the court held: No damages can be given for pain or anguish inflicted on the deceased, but the pecuniary loss for which recovery may be had includes all pecuniary losses which the `circumstances establish with reasonable certainty will be suffered by the beneficiary in the future because of the death. See, also, the following cases: Morgan v. Railroad, 95 Cal. 510, 30 P. 603; Munro v. Reclamation Co., 84 Cal. 515, 24 P. 303, 18 Am. St. Rep. 248; Sneed v. Marysville Co., 149 Cal. 710, 87 P. 376, and Butte Electric Co. v. Jones, 164 F. 308, 90 C. C. A. 240, 18 L. R. A. (N. S.) 1205, and Alder Co. v. Fleming, 159 F. 593, 86 C. C. A. 419, construing the Montana statute. Franklin v. South Eastern Ry. Co., 3 Hurlst. & Nor. 212, was a case where the father sued for the death of a son, a young man earning good wages and well disposed to assist his father, and the court said: "We do not say that it was necessary that actual benefit should have been derived; a reasonable expectation is enough, and such reasonable expectation might well exist, though, from the father not being in need, the son had never done anything for him." And the Supreme Court, in construing the federal Employers' Liability Act (Comp. St. §§ 8657-8665), under which damages are limited to pecuniary losses, recognizes that the measure of damages differs according to the relationship existing between the parties plaintiff and decedent; that under a certain relationship an action may be maintained for the loss of services or support to which the beneficiary was legally en titled, while, under a different relationship, the damages of the plaintiff may consist only in the loss of a prospective benefit to which he was not legally entitled, but of which he had a reasonable expectation of receiving, but for the wrongful death. Michigan Central R. R. v. Vreeland, 227 U. S. 59, 70, 72, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Gulf, Colorado, etc., Ry. Co. v. McGinnis, 228 U. S. 173, 174, 33 S. Ct. 426, 57 L. Ed. 785. The evidence in this case showed that the daughter was about 26 years of age; that she made her home with her father, though away at work at the time of the accident; that, while out at work, she aided him financially by monthly money payments; and that, when she was at home, she assisted him in the fields and in the home. There was, therefore, evidence in the case upon which to base a verdict of damages, and the requested instruction was properly refused. The last request relied upon was: "You are instructed that, if you believe from the evidence that the whistle or bell of the locomotive, or both, were sounded before the train reached the crossing, so that people exercising ordinary care could have heard such whistle or bell at or near such crossing, then defendant cannot be held to be negligent, although you may find from the evidence that the chain was not placed." This request is so indefinite that it might properly have been refused on that ground alone. If it means that the defendant could not be found to be negligent if the sole fault of the defendant consisted in its failure to have the chain in place, it was clearly wrong. The defendant in its brief argues that the court, by refusing to give the instruction, "deprived the railroad company of an opportunity to have the jury consider the contributory negligence of the deceased, if it should find that the whistle and bell of the locomotive was sounded before the train reached the crossing." If the request can be given such meaning, the defendant was not harmed, as the court, in its charge, instructed the jury fully on the question of contributory negligence. The judgment of the District Court is affirmed, with costs to the defendant in error. 461 KEITH V. JOHNSON. KEITH V. JOHNSON (Circuit Court of Appeals, Second ranted. November 21, 1924: No. 69. 361 the income of decedent's estates shall be 2677ed512, executor or 5 Lup(Comp. St. § 6336e) of the same act proInternal revenue 7- New York transfer 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. C463.ed States" there may be deducted "taxes paid within the year imposed by In determining the income tax on the estate of a decedent, under Revenue Act 1916, § 2(b), being Comp. St. § 6336b, the tax paid by the administrator of personal property under the Transfer Tax Law of New York is deductible from the income of the estate for the year for deductions allowed to decedent's estates, in which such tax is paid. In Error to the District Court of the United States for the Eastern District of New York; Marcus B. Campbell, Judge. Action by Emma B. Johnson, administratrix of the estate of John B. Johnson, deceased, against Henry P. Keith, late Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error. firmed. Af For opinion below, see 294 F. 964. Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Nelson T. Hartson and Thomas H. Lewis, Jr., both of Washington, D. C., and Wm. A. De Groot, of Brooklyn, N. Y., of counsel), for plaintiff in error. Sidney V. Lowell, of Brooklyn, N. Y. (B. Mahler, Harrison Tweed, and Murray, Aldrich & Roberts, all of New York City, of counsel), for defendant in error. Before HOUGH and MANTON, Circuit Judges, and LEARNED HAND, District Judge. LEARNED HAND, District Judge. The action is to recover from the collector of taxes the amount of a tax paid under protest. The defendant demurred to the complaint. The District Judge overruled the demurrer and gave judgment for the plaintiff. The case was thus: The defendant died on March 24, 1917, and the plaintiff, his administratrix, filed an income tax return for the period of her administration in that year, from March 26th to December 31st, deducting the inheritance tax paid to the state of New York, which extinguished the whole income. The deduction was disallowed, and the plaintiff was taxed $30,985.53, which she was forced to pay. For the purposes of the case it is agreed that all the intestate's estate may be regarded as personal property. Section 2 (b) of the federal Revenue Act of 1916 (Comp. St. § 6336b) declares that "Certiorari granted 45 S. Ct. 463, 69 L. Ed. —. the authority of any state," which must this section must cover these as well as liv- At The New York inheritance tax is imposed by section 220 of the Tax Law (Consol. Laws N. Y. c. 60) on "the transfer of property." This is ambiguous in respect of its incidence, but section 224 enacts that the tax shall be "a lien upon the property transferred and the executors of every estate so transferred shall be personally liable for such tax until its payment." We think that in principle under this provision the tax is "imposed" on the executor, and that it was so ruled in Home Trust Co. v. Law, 204 App. Div. 590, 198 N. Y. S. 710, affirmed in 236 N. Y. 607, 142 N. There the New York inheritance E. 303. tax was allowed as a deduction from the New York income tax upon a decedent's estate, under section 360 (subdivision 2), which follows verbatim section 5 of the federal Revenue Act of 1916. Section 365 (subdivision 2) of the New York Income Tax Law requires the executor to make the return, and section 369 makes him "subject to all the provisions of this article which apply to taxpayers," one of which (section 351-b), makes the tax a debt against the taxpayer. While the Court of Appeals wrote no opinion, it seems to us necessary to assume that they regarded the inheritance tax as "imposed" under section 360 (subdivision 2), because that was the only section which allowed the deduction. If so "imposed," it must be a duty in personam, because the income tax, as has been shown, is a debt, and the inheritance tax, in form also a debt, could not well be deducted unless it was a debt likewise. Our own decision in Prentiss v. Eisner, 267 F. 16, following U. S. v. Perkins, 163 U. S. 625, 16 S. Ct. 1073, 41 L. Ed. 287, compels the same conclusion. There we held that a legatee might not deduct the New York inheritance tax from his income tax. If neither he nor the executor may do so, the tax must be solely in rem, a conclusion effectively answered by section 224 above quoted. The defendant insists that the contrary is true, the New York inheritance tax being levied on one entity, and the federal income tax on another; each being an "estate" of the decedent differently conceived. It is true that the language of the statutes is not wholly clear, but we prefer to follow the customary categories while that course is left open to us. An executor is vested with the personalty of the decedent, and here we are dealing only with personalty. While it is true that the New York inheritance tax is made a lien, that may well be only for security, and in any event personal taxes normally create duties in personam, and the 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 whether the federal inheritance tax was deductible from income under section 214 of the act of 1918 (Comp. St. Ann. Supp. 1919, § 63368g), which was the same as section 5 of the act of 1916. The federal inheritance tax was by section 201 of the act of 1916 (Comp. St. § 63362b) imposed upon the transfer of the "net estate of every dece dent." By section 205 (Comp. St. 8 63361⁄2f), the executor must file the return, by section 207 (Comp. St. § 633612h) he must pay the tax, and by section 209 (Comp. St. § 63362j) it is made a lien. Thus the federal inheritance tax is like the New York inheritance tax, unless there is a difference between section 207 of the act of 1916 and section 224 of the New York Tax Law. We think that to say that the executor "shall pay" the tax is the same thing as to say that he shall be "personally liable" for it. N. Y. Trust Co. v. Eisner, 256 U. S. 350, 41 S. Ct. 506, 65 L. Ed. 963, 16 A. L. R. 660, held that the New York inheritance tax was not a deduction in calculating the federal inheritance tax. That case turned on the meaning of section 203 (a) (1) of the act of 1916 (Comp. St. § 63362d), especially the words "such other charges against the estate as are allowed by the laws of the jurisdiction under which the estate is being administered." It is quite true that the reason given was that inheritance taxes were "taxes on the right of individual beneficiaries," and for that reason not "charges that affect the estate as a whole." Literally the first clause quoted contradicts U. S. v. Perkins, supra, but the cases may be reconciled by understanding that the "charges" intended are only such as are imposed on the executor as successor stricti juris, like the income tax itself, and not such as arise because he must distribute the estate, as is the inheritance tax. There was reason to impute such a distinction to Congress, since the income tax is collected yearly, while the inheritance tax is levied once and for all. Both sovereigns might well insist upon an exaction on the whole estate for the privilege of its transfer. We express no opinion as to the result in the cases of realty, where the executor is not the successor, or even in the case of specific legacies. Judgment affirmed. SUAREZ et al. v. SUAREZ. (Circuit Court of Appeals, First Circuit. January 6, 1925.) No. 1582. 1. Wills 661-Bequest held to have become ineffectual for nonperformance of conditions. Held, A resident of Spain by his will left onethird of his estate to son, to be selected by agreement or by lot, who should live in the family residence, subject to the obligation to prothat the essential condition of the bequest was vide endowments to two of his sisters. the residence, to which the selection between the brothers was merely incident; that under Spanish Code, § 795, and Civ. Code Porto Rico, § 783, which provide that a compulsory condition must be fulfilled by a legatee when informed thereof, the selected son was required to establish the residence within a reasonable time and that, where neither son had removed from Porto Rico to the family residence in Spain within 17 years after testator's death, the bequest became ineffectual and the property became subject to distribution between the heirs. 2. Evidence 66-Son and beneficiary of testator presumed to learn provisions of will. The son of a testator, who was also a beneficiary under his will on a condition to be performed by him, may be presumed to have learned the contents of the will soon after testator's death. 3 F.(2d) 362 Appeal from the Supreme Court of Porto Rico. Suit in equity by Paz Alvarez Suarez against Marcial Suarez y Suarez and others. Decree for complainant, and defendants appeal. Affirmed. been filed, in which he was a defendant, and his heirs were substituted for him. Paz Alvarez Suarez, the appellee and plaintiff below, who will be hereinafter designated as plaintiff, was one of the granddaughters of the testator. In her complaint, filed in the District Court of San Juan, she alleged that the two sons, Marcial and Herminio, had neither agreed nor settled by lot who was to receive the special bequest and neither had gone to live or reside in the homestead at Punil; that the permanent Francis G. Caffey, of New York City (Cay Coll y Cuchi, of San Juan, Porto Rico, and George W. Study and Bouvier, Caffey & Beale, all of New York City, on the brief), for appellants. Before BINGHAM, JOHNSON, and AN- residence of Marcial was in Porto Rico and DERSON, Circuit Judges. JOHNSON, Circuit Judge. This is an appeal from a judgment of the Supreme Court of Porto Rico. Juan Suarez Rodriguez died on June 2, 1902, in Spain, testate. In his will, which was made in 1893, he designated as his sole and universal heirs his sons Marcial and Herminio, three daughters, and the children of a deceased daughter, and made the following special bequest: "It is the will of the testator to make a special bequest of a third of all his property and rights and of another third of the same property, of which he may freely dispose, to his said sons, Marcial, Candido and Herminio Suarez, the said bequest to be assigned to the one of the three said sons who shall live and reside in the testator's family residence at Punil; and for this purpose the said three sons shall agree upon the one to receive the special bequest or, if not, the matter shall be settled by lot; and the favored or selected one shall receive in fee the entire special bequest, the usufruct of the respective third parts passing to those who may be excluded from the said special bequest, and the obligation falling on the one selected by lot or agreement to provide for his sisters, Tarsila and Sirena, endowments equal to those given to the other sisters, Aurora and Justa, whether the said sisters marry or remain unmarried and whether they live with the brother who receives the special bequest or elsewhere." All three sons named in this special bequest resided in Porto Rico at the date of the execution of the will. Marcial has resided there ever since. Candido continued his residence there until he died, prior to his father, in 1901, unmarried; and Herminio lived there until he went to Santo Domingo and then to Madrid, Spain, where he died in 1919, after the complaint in this case had that of Herminio was also there until he changed his residence to the Republic of Santo Domingo; that neither the said Marcial nor Herminio had constituted an endowment in favor of their sisters, Tarsila and Sirena, as directed by the testator in said special bequest; that the greater part of the testator's estate was situated on the Island of Porto Rico, and prayed judgment of the court declaring that none of the sons named in this special bequest had acquired any interest under it or, in the language of the prayer, that the special bequest "had become ineffectual for the following reasons"; and that the property included in it be distributed in equal parts among all the heirs of the testator. The defendants, appellants, in their answer alleged generally that the complaint did not state a cause of action and denied that there had been no designation of the son who was to receive the special bequest, alleging that, in accordance with its provisions, Herminio and Marcial had cast lots for the said special bequest and that Marcial had won; also alleging that their residence in Porto Rico was temporary and that it was the intention of the defendant, Marcial Suarez, to return to Punil, Spain, to reside permanently in the homestead there; and that, with such intention, he, in company with his brother Herminio, had repaired the homestead. They also denied that they had failed to provide an endowment for their two sisters as required in said special bequest. The trial court found that the plaintiff had introduced no evidence to show that the designation of the heir to receive the special bequest had not been made by agreement or by lot, and rendered judgment dismissing the complaint. The Supreme Court in its opinion disregarded the question raised by the assignment of errors from the District Court, which was whether the burden was on the |