United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Plummer v. Cole, 178 U. S. 115, 44 L. ed. 998, 20 Sup. Ct. Rep. 829.

[For other cases, see Internal Revenue, III. h,

in Digest Sup. Ct. 1908.]

[No. 811.]

An estate tax, being likewise imposed on the transmission of property from the dead, but being laid immediately on the right to transmit, and not on the right to receive, is a toll taken from the property before it passes from the decedent, and is no part of that which passes to the personal representative for the payment of debts and distribution.

1921.

duties.

Knowlton v. Moorc, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747.

The only essential difference between an estate tax and a legacy or succession tax is that the former is imposed upon the right to transmit, and is taken out of what the decedent has to transmit, while the latter is imposed upon the right to receive, and is taken out of what the beneficiary would otherwise get. Ibid.

The right of the Federal government to impose death duties does not rest upon any power to regulate the descent or distribution of property, but rests on the independent general power to tax. United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Knowlton v. Moore, supra; Plummer v. Coler, 178 U. S. 115, 44 L. ed. 998, 20 Sup. Ct. Rep. 829; Snyder v. Bettman, 190 U. S. 249, 47 L. ed. 1035, 23 Sup. Ct. Rep. 803.

A legacy or succession tax, being imposed on the transmission of property from the dead, is a toll taken from the property transferred before it reaches the beneficiary, and is no part of that

People v. Bemis, 68 Colo. 48, 189 Pac.

The tax on the income of estates is plainly a tax on beneficiaries. When paid by the executor, it is paid for them. It is their incomes, either severally or collectively, upon which the tax rests. must be their taxes, and the estate tax Taxes, to be deductible, is not theirs.

United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073.

Mr. E. J. Smyer argued the cause and filed a brief for appellees:

1

The estate tax is a tax.

L. ed. 556; Pacific Ins. Co. v. Soule, Hylton v. United States, 3 Dall. 171, 7 Wall. 433, 19 L. ed. 95; United States 16 Sup. Ct. Rep. 1073; Knowlton v. v. Perkins, 163 U. S. 625, 41 L. ed. 287, Moore, 178 U. S. 41, 44 L. ed. 969, 20 190 U. S. 250, 47 L. ed. 1035, 23 Sup. Sup. Ct. Rep. 747; Snyder v. Bettman, Ct. Rep. 803; Cahen v. Brewster, 293 . S. 549, 51 L. ed. 310, 27 Sup. Ct. Rep. 174, 8 Ann. Cas. 215; Citizen's Sav. & L. Asso. v. Topeka, 20 Wall. 655, 22 L. ed. 461; Maillard v. Lawrence, 16 How. 251, 14 L. ed. 925; Harrison v. State, 102 Ala. 170, 15 So. 563; Henry v. United States, 251 U. S. 393, 64 L. ed. 322, 40 Sup. Ct. Rep. 185.

The estate tax imposed by the revenue law in force December 15, 1917, is a tax imposed on the transfer of the net estate of decedent.

Lederer v. Northern Trust Co. 262 Fed. 52; State ex rel. Smith v. Probate Ct. 139 Minn. 210, 166 N. W. 125; Re Knight, 261 Pa. 537, 104 Atl. 765; Corbin v. Townshend, 92 Conn. 501, 103 Atl. 647; Roebling's Estate, 89 N. J. Eq. 163, 104 Atl. 295.

For the purpose of administration, the title is vested in the personal representative to all personal property, choses in

action, and effects of the estate, and the personal representative may sell this personal property, collect debts owing to the estate, or sue to enforce collection, or to recover or protect the property, and exercise the same power of control and protection over this property as the deceased could have exercised if living.

Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Van Hoose v. Bush, 54 Ala. 352; Snodgrass v. Cabiness, 15 Ala. 160; Upchurch v. Norsworthy, 15 Ala. 705; Baldwin v. Hatchett, 56 Ala. 461; Waring v. Lewis, 53 Ala. 615; Hutchinson v. Owen, 59 Ala. 326; Nelson v. Stollenwerck, 60 Ala. 140.

As to real property, the personal rep resentative has the right and power to take possession of the same, intercept and collect the rents and income therefrom, and may sell the property, if necessary, for the payment of debts and charges against the estate.

Calhoun v. Fletcher, 63 Ala. 580; McCorkle v. Rhea, 75 Ala. 215; Nelson v. Murfee, 69 Ala. 599; Landford v. Dunklin, 71 Ala. 605.

The income from the estate during the year is collected by the personal representative, and belongs to the estate, and may be used in paying debts and charges against the estate (with the exception of income from specific legacies).

Hallett v. Allen, 13 Ala. 554; Myers v. Myers, 33 Ala. 85; Foscue v. Lyon, 55 Ala. 440; Walker v. Johnson, 82 Ala. 347, 2 So. 744; Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Jackson v. Rowell, 87 Ala. 685, 4 L.R.A. 637, 6 So. 95; Word v. Word, 90 Ala. 81, 7 So. 412; Thompson, Wills, § 347; Underhill, Wills, § 409.

A specific legacy is construed as segregated from the estate, and the legatee is entitled to the income from the death of testator, to be accounted for by the personal representative to the legatee after the lapse of the year.

Myers v. Myers, 33 Ala. 85; Gilmer v. Gilmer, 42 Ala. 9; Harper v. Bibb, 47 Ala. 547; Brown v. Grimes, 60 Ala. 647; Maybury v. Grady, 67 Ala. 147; Kelly v. Richardson, 100 Ala. 584, 13 So. 785; Graham v. DeYampert, 106 Ala. 279, 17 So. 355; Thomp. Wills, §§ 136140, 143; Rood, Wills, $$ 705-707; Underhill, Wills, §§ 405-408.

Fed. 52; Corbin v. Townshend, 92 Conn. 501, 103 Atl. 647; Roebling's Estate, 89 N. J. Eq. 163, 104 Atl. 295; People v. Northern Trust Co. 289 Ill. 475, 7 A.L.R. 709, 124 N. E. 662; State ex rel. Smith v. Probate Ct. 139 Minn. 210, 166 N. W. 125; Re Knight, 261 Pa. 537, 104 Atl. 765; Plunkett v. Old Colony Trust Co. 233 Mass. 471, 7 A.L.R. 696, 124 N. E. 265; Re Hamlin, 226 N. Y. 407, 7 A.L.R. 701, 124 N. E. 4.

In construing statutes, it is well settled that an exception in a statute amounts to an application of its provisions too all other cases not excepted, and excludes all other exceptions.

Bend v. Hoyt, 13 Pet. 263, 10 L. ed. 154; Equitable Life Assur. Soc. v. Clements (Equitable Life Assur. Soc. v. Pettus) 140 U. S. 226, 35 L. ed. 497, 11 Sup. Ct. Rep. 822; Arnold v. United States, 147 U. S. 494, 37 L. ed. 253, 13 Sup. Ct. Rep. 406.

The maxim, "expressio unius est exclusio alterius," is a universal maxim in the construction of statutes.

United States v. Arredondo, 6 Pet. 725, 8 L. ed. 560; Sturges v. Collector (Sturges v. Draper) 12 Wall. 19, 20 L. ed. 255; Arthur v. Cumming, 91 U. S. 362, 23 L. ed. 438; United States v. County Court, 99 U. S. 582, 25 L. ed. 331; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77.

The exception of a particular thing from the operation of the general wording of a statute shows that, in the opinion of the lawmakers, the thing excepted would be within the general words had not the exception been made.

Brown v. Maryland, 12 Wheat. 419, 6 L. ed. 678.

It is well settled that, in the construction of a law, its meaning must first be sought in the language employed. If that be plain, it is the duty of the court to enforce the law as written.

United States v. American Brewing Co. 251 U. S. 210, 64 L. ed. 229, 40 Sup. Ct. Rep. 139.

If there is a doubt as to liability for taxation, the construction is in favor of the exemption of the taxpayer, for a tax cannot be imposed without clear and express words for that purpose.

The estate tax is a charge against, and is paid by, the estate, the same as any other debt or charge against the estate.

against the estate by the authority of the United States. The excepting clause specifically enumerates what is to be excepted. The implication from the latter is that the taxes which it enumerates would be within the major clause were they not expressly excepted, and also that there was no purpose to except any others. Estate taxes were as well known at the time the provision was framed as the ones particularly excepted. Indeed, the same act, by §§ 400-410, expressly provides for their continued imposition and enforcement. Thus, their omission from the excepting clause means that Congress did not intend to except them.

The Act of 1916 calls the estate tax a "tax," and particularly denominates it an "estate tax." This court recently has recognized that it is a duty or excise, and is [635] imposed in the exertion of the taxing power of the United States. New York Trust Co. v. Eisner, 256 U. S. 345, ante, 963, 16 A.L.R. 660, 41 Sup. Ct. Rep. 506. It is made a charge on the estate, and is to be paid out of it by the administrator or executor, substantially as other taxes and charges are paid. It becomes due not at the time of the decedent's death, as suggested by counsel for the government, but one year thereafter, as the statute plainly provides. It does not segregate any part of the estate from the rest, and keep it from passing to the administrator or executor for purposes of administration, as counsel contend, but is made a general charge on the gross estate, and is to be paid in money out of any available funds, or, if there be none, by converting other property into money for the purpose.

Here the estate tax not only "accrued," which means, became due, during the taxable year of 1918, but it was paid before the income for that year was returned or required to be returned. When the return was made, the executors claimed a deduction by reason of that tax. We hold that, under the terms of the Act of 1918, the deduction should have been allowed. Judgment affirmed.

2. The omission of the state courts be

low to pass upon certain evidence or make findings of fact thereon, doubtless because, under their respective views of the applicable law, the facts referred to were immaterial, does not relieve the Federal Supreme Court, on writ of error, of the duty of examining the evidence for the purpose of and presumably would be found therefrom determining what facts reasonably might be by the state court if plaintiff in error's contention upon the question of Federal law should be sustained, and the facts thereby shown to be material.

[For other cases, see Appeal and Error, 2175– 2208, in Digest Sup. Ct. 1908.]

moneyed capital.

and national, at a higher rate than is im3. A state tax upon bank stock, state posed upon intangible personal property in general, including bonds, notes, and other evidences of indebtedness, violates the provisions of U. S. Rev. Stat. § 5219, that state taxation of shares in national banks "shall

not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state," where moneyed capital in the hands of individuals, invested in bonds, notes, and other evidences of indebtedness, comes into competition, relatively material in amount, in the loan market, with the moneyed capital of national banks.

[For other cases, see Taxes, I. b, 2, in Digest Sup. Ct. 1908.]

[No. 240.]

On what adjudications of state courts

On how and when questions must be raised and decided in a state court in order to make a case for writ of error from the Supreme Court of the United

The facts are stated in the opinion. Mr. Legh R. Page argued the cause, and, with Mr. E. Warren Wall, filed a brief for plaintiff in error:

The assessment was void because it was made directly against the bank itself, on its capital, surplus, and undivided profits in solido.

Com. ex rel. Moore v. P. Lorillard Co. Va., 105 S. E. 683; Cooley, Taxn. 3d ed. 598, 599; Kingfisher Bd. of Edu. v. Kingfisher, 5 Okla. 89, 48 Pac. 103; Montgomery County v. Tallant, 96 Va. 723, 32 S. E. 479.

The assessment at the rate of $1.40 on the hundred dollars valuation was at a higher rate than that imposed on other moneyed capital in the hands of individuals.

First Nat. Bank v. Chapman, 173 U. S. 205-216, 43 L. ed. 669-673, 19 Sup. Ct. Rep. 407; Merchants & Mfrs' Nat. Bank v. Penn, 167 U. S. 461-466, 42 L. ed. 236-238, 17 Sup. Ct. Rep. 829; Lionberger v. Rouse, 9 Wall. 468, 19 L. ed. 721; Amoskeag Sav. Bank v. Purdy, 231 U. S. 373-390, 58 L. ed. 274-281, 34 Sup. Ct. Rep. 114; Boyer v. Boyer, 113 U. S. 689, 28 L. ed. 1089, 5 Sup. Ct. Rep. 706; Mercantile Nat. Bank v. New York, 121 U. S. 138, 157, 30 L. ed. 895, 901, 7 Sup. Ct. Rep. 826.

Messrs. Henry R. Pollard and George Wayne Anderson, submitted the cause for defendant in error:

No Federal question was in issue in either of the courts below.

States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

As to review of questions of faet on writ of error to a state court-see note to Smiley v. Kansas, 49 L. ed. U. S. 546.

Marine Bank v. Fulton County Bank, 2 Wall. 252, 258, 17 L. ed. 785, 788; Newcomb v. Wood, 97 U. S. 581, 583, 24 Co. v. Central Transp. Co. 139 U. S. 62, L. ed. 1085, 1086; Pullman's Palace Car 2 Cyc. 661, 678; Union Bank v. Rich63, 35 L. ed. 69, 70, 11 Sup. Ct. Rep. 489; Nat. Bank v. Kentucky, 9 Wall. 353, 359, mond, 94 Va. 320, 26 S. E. 821; First 19 L. ed. 701, 702; United States v. American Bell Teleph. Co. 167 U. S. 224, 809; De Saussure v. Gaillard, 127 U. S. 264, 42 L. ed. 144, 162, 17 Sup. Ct. Rep. 216, 232, 233, 32 L. ed. 125, 131, 132, 8 Sup. Ct. Rep. 1053; Norton v. Whiteside, 239 U. S. 144, 153, 60 L. ed. 186, 190, 36 Sup. Ct. Rep. 97; Old Dominion Iron & Nail Works Co. v. Chesapeake & O. R. Co. 242 U. S. 623, 61 L. ed. 533, 37 Sup. Ct. Rep. 244; Castillo v. McConnico, 168 U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep. 229.

The record does not show, as it must of this court, that there is any ground affirmatively show, under the decisions to contend successfully that the taxing laws in force in the City of Richmond at the time of the assessment violative of U. S. Rev. Stat. § 5219, Comp. Stat. § 9784, 6 Fed. Stat. Anno. 2d ed. p. 796.

were

Amoskeag Sav. Bank v. Purdy, 231 U. S. 373, 58 L. ed. 274, 34 Sup. Ct. Rep. 114; Mercantile Nat. Bank v. New York, 121 U. S. 138, 154, 157, 30 L. ed. 895, 900, 901, 7 Sup. Ct. Rep. 826; Palmer v. McMahon, 133 U. S. 660, 667, 33 L. ed. 772, 775, 10 Sup. Ct. Rep. 324; First Nat. Bank v. Chehalis County, 166 U. S. 440, 454, 41 L. ed. 1069, 1075, 17 Sup. Ct. Rep. 629; First Nat. Bank v. Chapman, 173 U. S. 205, 214, 43 L. ed. 669, 673, 19 Sup. Ct. Rep. 407; Commercial Nat. Bank v. Chambers, 182 U. S. 556, 560, 45 L. ed. 1227, 1229, 21 Sup. Ct. Rep. 863; Jenkins v. Neff, 186 U. S. 230, 46 L. ed. 1140, 22 Sup. Ct. Rep. 905.

To maintain that all notes, bonds, and other evidence of indebtedness held by individuals constitute moneyed capital, as defined in § 5219 and by the decisions

On certiorari to state courts-see notes to Bruce v. Tobin, 62 L. ed. U. S. 123, and Andrews v. Virginian R. Co. 63 L. ed. U. S. 236.

On state taxation of national bankssee notes to Providence Bank v. Billings, 7 L. ed. U. S. 939; McHenry v. Downer, 45 L.R.A. 737; and Citizens' Nat. Bank v. Burton, 10 L.R.A.(N.S.)

947.