of and adjoining" his own land, but alleged that the accretions should be equitably divided between the owners of the old south bank of the river, and he claimed that upon his theory of an equitable division of the accretions Jane Stark would not be entitled to any share in the condemnation money. His theory was, as contended in the present case, that even though the lands in dispute were formed by accretions to the river bank, still, inasmuch as his lands extended around the southeast curve of the old river bank, his lines should be extended diagonally across Stark's accretions, and Stark's lines, instead of extending outwards toward the new bank of the river, should extend across the accretions awarded to the heirs of Anna B. Wood in the Fowler v. Wood Case, supra. The state of Kansas intervened in the suit, and, represented by the learned counsel who now appears for Meriwether, set up its claim to the condemnation money. The nature of its claim will be referred to presently. The special master appointed to find the facts and the law reported in 1908, finding Meriwether entitled to all the $22,000 condemnation money except the sum of $809.50, which the master concluded belonged and should be paid to Jane Stark; but he reserved the question of whether Meriwether's claim to that sum was in fact superior to hers. We assume that the point reserved was the one depending on the manner in which the ac

the mouth of the Kansas river; that later, souri river began anew to change its course, in the same year he returned to the place and that the lands were formed by accrewhen the water was lower, and that a sand | tions to the old south bank of the river as it bar was visible at the place marked "B" on existed prior to the accretions. He alleged the Coulter map; and that the bar "was at that Jane Stark was the owner of the actached to the bank all along that locality." | cretions attached to her land lying “just west Some of the plaintiff's witnesses spoke of the place as nothing more than a sand bank visible at low water, and explained the Coulter map as showing nothing more than a sand bar. The place on the map was marked "B" during the trial-not to indicate that it was an island, but to distinguish and identify the locality. In the findings the court refers to it on the Coulter map as "Island B," which never entirely washed away. The mere reference to it in the findings as an island does not, in our opinion, carry with it all the consequences which counsel contends for. In addition to the testimony of plaintiff's witnesses familiar with the river from the time the accretions first began to form, there was other evidence which fully justified the court in overruling the contention upon which counsel places such emphasis. The whole "insular theory," as far as it has any application to the facts respecting the manner in which the identical land in dispute was formed, has been time and again discredited by the courts in litigation in which Meriwether was a party and by which he acquired a large portion of the same tract of which that now in controversy forms a part. In a number of suits, some in the courts of this state and others in the federal courts, he filed verified pleadings denying that any of the land comprising the tract of which the Stark lands are a part was formed by accretions to either of the is lands which it is now claimed are shown on the Coulter map; on the contrary, he assert-cretions should be divided between Meriwethed and successfully maintained that the lands were and are accretions to the riprap bank. In much of the litigation he was strenuously opposed by the learned counsel who now represents him in this case, and who has with entire consistency and great ability vigorously maintained the insular theory.

er and Mrs. Stark. The report of the master was confirmed, and judgment rendered in Meriwether's favor against George W. Howe and the state of Kansas. The case came before the Circuit Court of Appeals on an appeal by the state. In the opinion of that court the statement of facts, after reciting the substance of Meriwether's cross-bill, proceeds as follows:

The trial court in the present case must have given considerable weight to the evidence introduced in the way of pleadings, "The state of Kansas in its cross-bill, after records, and judgments in the other litiga-making allegations similar to those of Merition. We referred briefly to those cases in the first opinion. We shall now quote more at length from the decision and findings in the case of State v. Meriwether, 182 Fed. 457, 106 C. C. A. 191, decided in 1910 by the Circuit Court of Appeals The controversy in that case arose in a suit against the county treasurer of Wyandotte county to establish the ownership of a fund of $22,000, deposited as condemnation money for the right of way of a railroad across lands including those now in dispute. Jane Stark, through whom plaintiff claims, and Meriwether, were parties. Meriwether filed a verified cross-complaint, in which he set forth his claims to the fund by reason of his ownership of most of the tract. He alleged that in 1888 the Mis

wether concerning the title and washing away nel, alleged that afterwards there appeared of the land and the change of the river's chanabove the surface of said stream, and within the channel of said stream, an island, which was on both sides of the state line at said point, and on the Missouri side of the main channel of said stream, of which island the state of Kansas was the owner by reason of its being formed upon and within the bed and channel toward the Kansas or right bank of said of said stream, which island gradually extended stream; also that another or other islands appeared in the bed of said stream on the Kansas side of the state line, and on the Missouri side of the main channel, or deeper part of the stream, which other island or islands also belonged to the state of Kansas for the same reasons, and that said islands by gradual accretion thereto became united and extended until they reached the Kansas bank. * * * And defendant says that the said land so condemned

was not an accretion to the mainland, or to any land owned by said Meriwether, or to any person through or under whom he claims, but that the same consisted of islands which formed and appeared in the channel of the Missouri river and accretions thereto, all of which belonged to this defendant, by reason of which fact this defendant is entitled to have and receive the said sum of $22,000. To this intervening cross-bill Meriwether filed an answer, in which he denied the insular theory of the state and reasserted his claim that the land condemned was formed by accretions to his riparian possessions." (Italics ours.) State of Kansas v. Meriwether, 182 Fed. 457, 459, 106 C. C. A. 191, 193.

Kansas, and secured, not only $21,000 condemnation money, but also title to a large tract of valuable land. His theory was supported by facts sworn to by him. He now asserts the facts to have been the exact contrary, and in order to defeat Stark sets up the claim that the lands in question were formed by accretions to islands. In litigation with the state and other parties he established by his own testimony and that of others that the so-called islands were mere "sand bar accretions" to the river bank.

The statement of facts then quotes the Having greatly profited by the process of blowing hot, he now, in order to profit again, language of the special master as follows: "A change in the bed of said river, caused by blows cold, calmly relying upon the reference a shallowing of the channel opposite the rip-in the trial court's findings to the locality in rapped bank, began to occur, and a sand bar question as an "island" that never washed accretion to said bank began to form after the spring rises in said river, and also a sand bar away. He seeks now to magnify the imporbegan to form on the northern and eastern side tance of the sand bar accretion by insisting of the channel as it then existed, and from that, when it was first visible, there ran bethence on said sand bar accretion and sand bar tween it and the riprap bank next to Fowextended north and east and substantially paral- ler's packing plant the main "channel of the lel with the south bank and increased in height and width, and, with their extension and growth, largest river in the world." In the former the channel of the river grew shallower and re- opinion we said that, if he was not estopped ceded in a northerly and easterly direction." to assert his present claim, perhaps he ought 182 Fed. 459, 106 C. C. A. 193. to be. The doctrine of equitable estoppel,

The opinion continues the statement of strictly speaking, never applies unless the one facts:

"He found that in the year 1889 the National Waterworks Company, an owner of land fronting on the river above that in question, constructed a dyke located about 1,600 feet upstream from the land in question; also that the city of Kansas City at about that time extended a sewer out into the new current of the river; that the effect of these constructions was to retard the flow of water around the point of land at the influx of the Kansas river, make it flow further northward, accelerate the accretion along the southern bank of the river, and increase the height, width, and length of the sand bar in the receding channel of the river; that as a result the channel receded further north and east until in the year 1891 or 1892 it ran, and has ever since continued to run, several hundred feet north of the land in question." 182 Fed. 459, 106 C. C. A. 193.

urging it shows that his position or rights have been prejudiced in some material way by the former attitude or conduct of the one sought to be estopped.

We

There was in evidence a letter written by Meriwether to Mrs. Stark in 1903, admitting she was entitled to the accretions in front of her land, but setting up a claim that the accretions should be equitably divided. He alleged the same thing in the condemnation suit wherein Mrs. Stark was a party. do not deem it necessary, however, to determine whether his conduct in these respects so far prejudiced the grantors of plaintiff, Stark, that the principle of equitable estoppel applies in strictness. "Whether the principle is described as equitable estoppel, quasi estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important." Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099, 1100. The foregoing excerpt is quoted with approval in Bank v. Jesch, 163 Pac. 150, and also the following from 10 R. C. L. 694:

We now quote from the opinion itself: "Because of this last-mentioned fact, among others, it is contended by learned counsel for the state that the land condemned was not an accretion to the shore, but was an isolated growth, an island rising from the bed of the river. We, however, are unable to agree to this. Not only did the special master and the trial court find against it, but, by reason of the claim that their findings are uncertain and inconclusive, we have examined the evidence, including several authentic topographical surveys and plats made between the years 1886 and 1892 while the land was forming, and from them all we are satisfied that the accretion theory is sustained by the proof and that the insular It is sufficient to say that, in view of all theory is not sustained. The fact that the land the facts stated, the claim that it became a along the new channel is a little higher in elevation than that which lies further inland, nearer physical impossibility for the lands in disto the riprapped bank, is a condition not incon-pute to have been formed by accretion to the sistent with the conclusion reached. The evi

"The doctrine of equitable estoppel is frequently applied to transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced.”

dence tends to show that in the process of land river bank does not impress this court; and formation by accretion it is not uncommon to it sees no reason to disturb the findings of find higher levels next to the channel and a the trial court to the effect that these lands recission to lower levels further inland." 182 belong to Stark, notwithstanding the referFed. 461, 106 C. C. A. 195. ence in the findings to the so-called "Island B."

Upon the theory that all these new-made lands were accretions to the riprap bank, The former judgment will be adhered to. Meriwether defeated the claim of the state of All the Justices concurring.

(99 Kan. 841)

STATE ▼. UNITED STATES TRUST CO.
OF NEW YORK (MERCHANTS' NAT.
BANK, Garnishee). (No. 21059.)
(Supreme Court of Kansas. Feb. 10, 1917.)

Pursuant thereto the Santa Fé stock belonging to her husband's estate has been transferred by the defendant trust company, and the question for review is whether the state is entitled to the tax under these circumstances. Pending the outcome of this action the sum in controversy has been deposited in TAX-a Topeka bank by negotiations of counsel for the parties.

(Syllabus by the Court.) TAXATION 878(2)-INHERITANCE POWER OF APPOINTMENT-STATUTES. Where the will of a testator who died before the enactment of the inheritance tax law (Laws 1915, c. 357) created a life estate in certain stocks of a Kansas corporation in favor of his widow, and bequeathed the remainder to such beneficiaries as might be named in a power of appointment created by his will and conferred upon his widow, the remainder thus taken is part of the testator's estate, and is specifically exempted from the payment of the inheritance tax by section 23 of the act, notwithstanding the power of appointment was exercised after the act took effect.

The first inheritance tax law of 1909 (chapter 248), repealed by chapter 330 of the Laws of 1913, has no bearing on the case. The present inheritance tax law (Laws 1915, c. 357), which took effect on April 10, 1915, governs, if the state's claim falls within its

terms.

The district court rendered judgment for the plaintiff on an agreed statement of facts, and the defendant appeals. Only the questions of law require our attention, and the chief and controlling one of these arises on Appeal from District Court, Shawnee the effect of section 23 of the act, which proCounty.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1701.]

Action by the State of Kansas against the United States Trust Company of New York, and Merchants' National Bank, garnishee. Judgment for plaintiff on an agreed state ment of facts, and defendant appeals. Reversed, with instructions to enter judgment for the defendant.

Blair, Magaw & Lillard, of Topeka, for appellant. S. M. Brewster, Atty. Gen., S. N. Hawkes, Asst. Atty. Gen., and John L. Hunt, of Topeka, for the State.

DAWSON, J. This is an action by the state to collect a sum of money alleged to be due under the inheritance tax law of 1915 upon the transfer of certain shares of stock in the Santa Fé Railway. The state's claim to the tax is thus founded: Simon Lavanburg, a citizen of New York, died in 1904, bequeathing a life interest in this stock and other property to his widow, and bestowing upon her the power of appointment of beneficiaries to enjoy the remainder of his estate after her death. To these beneficiaries to be named by her he bequeathed this remainder and provided for the disposition of that remainder if his widow failed to exercise the power of appointment. The will reads:

"Third. Upon the death of my said wife direct my executors to pay over the principal of such trust fund, or as much thereof as may then remain in their hands, to such corporations or individuals, and in such amounts, as my said wife may by her last will and testament direct, and I give, devise and bequeath the same accordingly.

vides:

"This act shall not apply to estutes of persons deceased prior to the taking effect hereof."

It seems clear that the Legislature intended that this statute was to operate prospectively. That would ordinarily follow, not because a retroactive effect could not be given, but that such construction is never given unless the legislative intent to do so is clear and unequivocal. Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028; City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768; Lightner v. Insurance Co., 97 Kan. 97, 102, 154 Pac. 227.

To whose estate did this Santa Fé stock

belong; to that of Simon Lavanburg who died long before the enactment of the inheritance tax law, or to that of his widow who died after its enactment? Undoubtedly the stock belonged to the estate of Simon. He disposed of it absolutely by his will-a life estate to his widow, and the remainder as

set forth above.

It is true that it was after the enactment

of the law of 1915 that Lavanburg's widow exercised the power of appointment, but it is not possible, without ignoring or minimizing the fair intendment of section 23, to find language in the statute to warrant the imposiItion of the tax upon the exercise of that power or upon the taking of the stock by the beneficiaries under its exercise. What language in the statute will bear that interpretation? Counsel for the state contend that section 1 of the act fixes the tax and section 2 fixes the liability of the executor to pay it. We do not thus read section 1. It merely provided that all property (of persons dying after the act takes effect) which passes by will or intestate succession, and gifts made in conSimon Lavanburg's widow, also a resident templation of death, with certain exceptions, of New York, died in May, 1915, and in her are liable to the tax in the specified classes will she exercised the power of appointment and percentages therein set forth. Section conferred upon her by her husband's will. 2 concerns the payment of the taxes due un

"In the event of the failure of my said wife to dispose of the whole or a part of said principal of said trust fund, then and in that case I direct my executors to divide the same in manner hereinafter provided."

der the act. Section 3 touches the proposition. It reads:

Read this statute as we may, we are turned back on every view to the "estate of the tes"In every case where there shall be a bequest tator," the "property" of the "testator" or or grant of personal estate made or intended to "donor," the "property" or "interest" of the take effect in possession or enjoyment after the death of the grantor, to take effect in posses- "donor" upon which the Legislature would sion or come into actual enjoyment after the ex- impose a tax before it will consent to the piration of one or more life estates or a term passing of the testator's or decedent's propof years, whether conditional upon the happening of a contingency or dependent upon the ex-erty to the beneficiary, and the act avowedly ercise of a discretion or subject to a power of does not care how it passes, whether by will, appointment or otherwise, the executor, admin-intestate succession, or by appointment. Not istrator or grantor may deposit with the county only does the act expressly exempt from its treasurer a sum of money sufficient in the opinion of the tax commission to pay all taxes which may become due upon such bequest or grants," etc.

Section 27 contains some definitions and rules of interpretation:

terms the estate and property of persons deceased before its enactment, but it must be held that it exempts every interest therein, § 27. Certainly a power of appointment-the right to designate a beneficiary of a bequest of property-is an interest in the property. In whose property is it an interest? Surely it is an interest in the property of the testator, of the person who created the power of appointment.

We are asked to hold that the tax is due because the property of one who died before the law was enacted now passes to a person named in a power of appointment created before the adoption of the act, but not exercised until after the act took effect. No fair inter

"The words 'estate' and 'property,' as used in this act, shall be taken to mean the real, personal and mixed property or interest therein of the testator, intestate, grantor, bargainor, vendor or donor which shall pass or be transferred to legatees, devisees, heirs, next of kin, grantees, donees, vendees, or successors, and shall include all personal property within or without the state. The word 'transfer,' as used in this act, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment in the manner herein prescribed. The word 'decedent,' as used in this act shall include the testator, in-pretation of the act will warrant this. One testate, grantor, bargainor, vendor or donor." cannot read the earlier and later decisions Another section somewhat pertinent reads: in New York and Massachusetts, based upon "Sec. 13. If a foreign executor, administrator earlier and later statutes of those states, or trustee assigns or transfers any stock in any cited and discussed in Ross on Inheritance national bank located in this state or in any Taxation, §§ 40, 78, 79, and in an instructive corporation organized under the laws of this state, owned by a deceased nonresident at the note in 33 L. R. A. (N. S.) 236, without feeling date of his death and liable to a tax under the that our Legislature intended to eliminate the provisions of this act, the tax shall be paid to probability of such controversies when it inthe county treasurer of the proper county at the time of such assignment or transfer; and corporated section 23 in the Kansas statute, if it is not paid when due, such executor, ad- a provision not found in other inheritance ministrator or trustee shall be personally liable tax acts, and one logically conflicting with the therefor until it is paid. inclusive language of the later New York and Section 3 relates to the estates of persons Massachusetts statutes (Laws of New York who have died since the enactment of the 1897, c. 284; Laws of Massachusetts 1909, statute, and the language “whether condition- c. 527) which purposely reach out to tax the al upon the happening of a contingency or taking of property under the exercise of the dependent upon the exercise of a discretion power of the donee notwithstanding the propor subject to a power of appointment or other- erty belonged to the estates of persons who wise" is a dependent and qualifying phrase died before the adoption of the inheritance which relates to the bequests and grants tax laws of those states. The plain, unmade by the grantor and which take effect after the grantor's death. The shares of stock sought to be taxed are of that nature, except that they pertain to an estate of one who died prior to the enactment. The bequest of the remainder of them was to take effect according to the will of Simon "after the expiration of one or more life estates or a term of years," as the statute reads, and were "dependent upon the exercise of a discretion" and "subject to a power of appointment." STATE v. ATCHISON, T. & S. F. RY. CO. And section 27 declares that: (No. 21051.)

The word "property'

to mean the testator

interest

or donor.
shall

equivocal terms of section 23 intend that the act of 1915 should not affect, either directly or indirectly, the estates of persons who died before its enactment.

The judgment is reversed, with instructions to enter judgment for the defendant on the agreed statement of facts. All the Justices concurring.

(99 Kan. 831)

shall be taken (Supreme Court of Kansas. Feb. 10, 1917.)

of the

The word (Syllabus by the Court.) 'transfer' include the 1. TAXATION 861 passing of property [of the testator] or any in- TRANSFER OF STOCK-STATUTE. * * * by terest therein

* gift or

INHERITANCE TAX
In 1912 a Kansas statute was in force im-

appointment in the manner herein prescribed." posing a tax upon legacies and successions,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes