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6. Appeal and error 978(1)-Denial of new [of motion for a new trial questions which trial, because there was no evidence that might have been raised at the trial. It is peanuts delivered corresponded to sample, the general rule that the disposition of a held to present no question of law. motion for a new trial rests in sound judicial discretion. The action of the trial judge

Where question as to sufficiency of evidence to show that peanuts delivered corresponded to sample could have been raised by request on such a motion will not be set aside unfor instruction, denial of new trial because less it amounts to an abuse of judicial disthere was no evidence that they were suitable cretion or excess of jurisdiction or some simraises no question of law. ilar gross error.

7. Appeal and error 1004 (3)-Inclusion of unauthorized items in verdict held not to taint validity of jury's action.

Apparent inclusion in verdict of items for cartage, storage, insurance, and demurrage, deducted as total by judge from verdict, as condition on which plaintiff could retain verdict for its balance, held not to manifest such mistake, error, misunderstanding, dereliction of duty, or abuse of trust by jury, as to taint validity of its action.

[4, 5] The judge in the case at bar made no rulings of law nor findings of fact. He simply denied the motion provided the plaintiff remitted the stated amount. It is manifest that a denial of the motion in respect to its grounds that the verdict was against the evidence and the weight of the evidence, and against the law, that it was excessive and contrary to the law as to damages, opens to the defendant no question of law at this stage of the case. The ground that there

Exceptions from Superior Court, Suffolk was no evidence that the peanuts were suitCounty; R. W. Irwin, Judge.

Action of contract by W. R. Grace & Co. against Shaghalian's, Inc., to recover price of 20 tons of ungraded peanuts. Verdict for plaintiff. Defendant's motion for new trial was denied, on condition of plaintiff's remittitur, and defendant excepts. Exceptions overruled.

R. H. Oveson, of Boston, for plaintiff. W. B. Grant, of Boston (H. E. Whittemore, of Boston, on the brief), for defendant.

able for the purpose for which they were understood to be used by the defendant also presents no question of law at present. That question of law could have been raised by appropriate request for an instruction to the jury. Moreover, the only evidence that that purpose was made known to the plaintiff came from the defendant. The agent who made the sale for the plaintiff denied that he knew that purpose. The instruction to the jury on this point was sufficiently favorable to the defendant.

run."

[6] The same observations apply to the RUGG, C. J. This is an action of con- contention that there was no evidence that tract to recover the price of twenty tons of the peanuts delivered corresponded to the 1919 crop fair average quality ungraded sample. Moreover, it appears that the sample Chinese shelled peanuts. The peanuts were shown at the time of sale was a "type samsold by written contract. The defendant re-ple," defined to mean "a sample of a previous fused to accept or receive them on the ground crop showing how the peanuts generally that they did not correspond to a "type sample" shown at the time the contract was made. The case was tried to a jury. No exceptions were saved by the plaintiff at the jury trial. The verdict was in favor of the plaintiff in the sum of $4,175.29. The defendant thereupon filed a motion for a new trial on numerous grounds. One of these was founded on a calculation to the effect that the verdict as returned must have included specified items for cartage and storage, insurance, demurrage and handling charges aggregating a certain amount. The judge denied the motion for a new trial, provided the plaintiff would remit that amount, which it did.

[7] The apparant inclusion in the verdict of certain items deducted as a total by the judge from the verdict, as the condition on which the plaintiff could retain the verdict for its balance, did not manifest such mistake, error, misunderstanding, dereliction of duty or abuse of trust on the part of the jury as to taint the validity of its action as a whole as matter of law. The judge had seen the witnesses and the jury and watched the course of the trial. He was in a better position than anybody else to reach a right conclusion on the point whether the verdict ought to stand or be set aside in its entirety. No error of law or abuse of sound judicial discretion is revealed on this record in the disposition made by the judge of the motion for a new trial.

[1-3] The defendant thereupon filed this bill of exceptions touching the disallowance of its motion for a new trial. It is familiar law that a party cannot raise on a hearing Exceptions overruled.

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

(146 N.E.)

AMERICAN MFG. CO. v. COMMON

WEALTH.

(Supreme Judicial Court of Massachusetts.

Suffolk. March 6, 1925.)

1. Taxation 376 (3) - To require value of property in another state to be deducted from corporate franchise, tax must be actually levied on property; "subject to."

To require deduction under St. 1909, c. 490, pt. 3, § 41, providing that there shall be deducted from value of corporate franchise value of property in another state, and "subject to" taxation therein, tax must be actually levied on property in another state; "subject to" meaning that property actually bears financial burden thereby indicated.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Subject to.]

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mestic corporation, "the value of its property situated in another state and subject to taxation therein." The petitioner owned merchandise located in New York on April 1, 1918, the value of which the tax commissioner declined to deduct from the value of its corporate franchise as otherwise determined according to law. The precise question is whether that merchandise was in New York "subject to taxation" within the meaning of those words in said section 41, third.

Prior to the enactment of St. 1903, c. 437, $ 72, no deduction was allowed in computing the value of the franchise of a domestic corporation as a basis for the excise tax, on account of the value of its personal property actually situated in another state or foreign country, whether there taxed or not. The last-cited statute first introduced into our tax law the words of deduction found in said

2. Taxation 117-Franchise tax of New section 41, third. That deduction was limitYork held to be tax on income itself.

New York corporation franchise tax, though in name and form a franchise tax, is in substance, tendency, and practical operation a tax

on income itself.

3. Taxation 376 (3)—Merchandise of domestic corporation situated in New York held not subject to taxation there, within statute as to deduction from franchise value.

Merchandise of domestic corporation situated in New York held not subject to taxation in New York, within St. 1909, c. 490, pt. 3, § 41, providing that there shall be deducted from value of corporate franchise value of its property situated in another state, and subject to taxation therein.

4. Taxation-Tax on income from property is in essence a tax on property.

A tax on income derived from property is in essence a tax on the property.

ed (1) to tangible property; and (2) to property subject to taxation in that other state. There has been a progressive tendency in our statutes imposing excise taxes on domestic corporations, to deduct from the value of the franchise for tax purposes the value of property otherwise taxed. See, for review of such statutes, New England & Savannah Steamship Co. v. Commonwealth, 195 Mass. 385, 81 N. E. 286, 11 Ann. Cas. 678. In most, if not all, of those provisions the operative words have authorized such deduction only when the other property is otherwise "subject to taxation." These words bear an implication that, since such other property acother form according to its fair value, that tually bears its burden of taxation in some chise value to the end that the corporation value ought to be deducted from the fran

be not to that extent made liable to double

Reserved and Reported from Supreme Ju- taxation. Indeed, the history of the develdicial Court, Suffolk County.

opment of the corporation franchise tax law indicates that avoidance of double taxation Petition by the American Manufacturing was the legislative purpose impelling the sucCompany against the Commonwealth of Massachusetts for abatement of excise tax as-wealth v. Hamilton Manuf. Co., 12 Allen, 298; cessive deductions authorized. Commonsessed for year 1918. Petitioner excepted to findings of fact, and case was reserved and reported. Exceptions overruled; petition dismissed.

Mass. 80; Farr Alpaca Co. v.
Fireman's Ins. Co. v. Commonwealth, 137
Common-

wealth, 212 Mass. 156, 98 N. E. 1078. This
purpose has been to avoid an actual double
taxation in fact and not a theoretical pos-

C. H. Walker, of Boston, for petitioner. A. Lincoln, Asst. Atty. Gen., for the Com-sibility of double taxation. Deduction of the monwealth.

RUGG, C. J. [1] This is a petition under St. 1909, c. 490, pt. 3, § 70, by a Massachusetts corporation for the abatement of an excise tax assessed upon it for the year 1918. The petitioner was subject to a tax upon its corporate franchise under St. 1909, c. 490, pt. 3, 88 39-43. It is provided by said section 41, third, that there shall be deducted from the value of the corporate franchise, as there defined and ascertained, of a do

value of shares of stock in a foreign corporation, which bears its full burden of taxation on all its property when located in some other state, never has been allowed. Money on deposit in a bank in another state and there actually taxed, is not allowed as a deduction. So, also, accounts, receivable from debtors resident in and payable in another state, are not allowed as a deduction.. Simplex Electric Heating Co. v. Commonwealth, 227 Mass. 225, 116 N. E. 501.

The words "subject to," in describing title

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-51

to property, followed by such words as "mortgage," "lien," or "other incumbrance" mean that the property actually bears the financial burden thereby indicated. It was Isaid with reference to this section of the statute in Bellows Falls Power Co. v. Commonwealth, 222 Mass. 51, 63, 109 N. E. 891, Ann. Cas. 1916C, 834:

"The context in which these words occur in our tax law, and its other general provisions, demonstrate that these words refer to the kind of property which, if owned by an individual and situated and taxed in another state, would be exempt from taxation here." Simplex Electric Heating Co. v. Commonwealth, 227 Mass. 225, 229, 116 N. E. 501.

All these considerations lead to the conclusion that, in order to require the deduction under said section 41, third, there must be actually levied upon the property situated in another state a tax under its taxation

laws.

[2] The further question arises whether

this merchandise of the petitioner situated in New York was thus "subject to taxation" in that state. During 1918 there was in force in New York a franchise tax levied upon corporations such as the petitioner for the privilege of "exercising their franchises in this state in a corporate or organized capacity." Such a corporation was required to file a report stating the amount of its net income for the last preceding fiscal or calendar year. The allocation of net income to New York, in the case of corporations doing business both in that state and elsewhere, was made in the main upon a basis of the proportion which certain assets, regarded as having a situs or origin in New York, bore to the corporation's total like assets wherever located. Corporations taxable under that law were given complete exemption from taxation, state and local, upon or in respect to their personal property situate in New York, so far as here material. Franklin Mills Corp. v. Collins, 109 Misc. Rep. 1, 178 N. Y. S. 65; affirmed on opinion below, by the Appellate Division in 193 App. Div. 925, 184 N. Y. S. 944, and by the Court of Appeals in 232 N. Y. 502, 134 N. E. 547. Though in name and form a franchise tax, the corporation income tax law has been held to be, in substance, tendency, and practical operation, a tax upon the income itself. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48, 129 N. E. 202; motion for reargument denied, 231 N. Y. 516, 132 N. E. 870; petition for writ of certiorari denied, 256 U. S. 702. Upon the findings of the single justice the cases just cited are taken as the law of New York. Compare Bass, Ratcliff & Gretton, Ltd., v. State Tax Commissioner, 232 N. Y. 42, 133 N. E. 122; Id., 266 U. S. 271, 45 S. Ct. 82, 69 L. Ed. -; Northern Finance Corp. v. Law, 236 N. Y. 286, 140 N. E. 700.

[3, 4] Upon these facts, the merchandise of the petitioner was not "subject to taxation" in New York. Manifestly, it is not taxed directly, but is expressly exempted from taxation. The franchise tax upon the income of the corporation bears no direct relation to the value of the merchandise in New York. The value of that merchandise is a factor in calculating the net income upon which the franchise tax is based. The franchise tax is not upon the income derived from the merchandise located in New York. That income is merely a part of the net income upon which the tax is assessed. It is quite possible under the law of New York that a franchise tax might be levied on a corporation which may have derived no income from its New York property or business. A tax upon income derived from property is in essence a tax upon the property. Opinion of Justices, 220 Mass. 613, 624, 108 N. E. 570. But that principle has no relevancy to the facts of this record. The franchise tax upon the petitioner in New York for the privilege of there doing business is too remote from the income of its merchandise situated in New York to permit the conclusion that the merchandise is there "subject to taxation," as those words are used in said section

41, third.

Petitioner's exceptions overruled. Petition dismissed, with costs.

HEDGE v. STATE STREET TRUST CO. et al. .(Supreme Judicial Court of Massachusetts. Norfolk. March 2, 1925.)

1. Wills 449-Intent to dispose of all property presumed, and will so construed, if possible.

There is a general presumption that one making will intends to dispose of all his property, and construction of will resulting in partial intestacy will not be adopted, unless plainly required.

2. Wills 629-Law favors vested rather than contingent estates in construction of wills.

The law favors creation of vested rather than contingent estates, and those created by will will be regarded as vesting at once, unless opposite intent of testator clearly appears. 3. Wills 534-Existence of life estate in testatrix's daughter held not to deprive her of vested remainder.

A life tenant may be a remainderman in estate after his life estate, and fact that testatrix's daughter was life tenant held not to deprive her of vested remainder.

4. Wills 534-Will creating life estate with remainder to testatrix's three children held to create vested interest in such children, though one of them was life tenant.

Where will gave to testatrix's daughter life estate in certain property, with provision that,

(146 N.E.)

if it became necessary or expedient to dispose of such property, then proceeds should be equally divided between testatrix's three children, held, such children took vested remainders, and that on death of daughter, who was life tenant, her estate was entitled to one-third of property.

Appeal from Probate Court, Norfolk County; McCoole, Judge..

In the matter of the estate of Lucy W. Heath, deceased. From a decree of the probate court, on petition of Eadith H. Hedge for distribution of proceeds, the State Street Trust Company and Harold Williams, Jr., as executors of Eadith Heath, and Charles Heath appeal. Reversed, with directions.

Harold Williams, Jr., of Boston, for appellant trustees.

H. D. White, of Boston (F. S. White, of Boston, on the brief), for appellant Heath.

L. M. Lombard, of Boston, for appellee.

CARROLL, J. Lucy W. Heath died in February, 1899. She was survived by her husband and three children, Ada, Charles and Eadith. By her will she left to her daughter Eadith "the use and improvements of my estate at Cohasset, Massachusetts, during her life, subject, however, to the life interest of my husband, Charles Heath. But if it should become necessary or expedient at any time to dispose of said Cohasset estate, then I direct the proceeds thereof be divided equally between my three children, Ada, Charles and Eadith." The will was admitted to probate in March, 1899. The husband of the testatrix died in February 16, 1905. Ada married Thomas Doliber, and died January 3, 1910, leaving to her husband all her interest in this property. He died in 1912, by will giving to his surviving children born of the marriage with Ada his interest in the Cohasset real estate devised to him by his wife. The children of Ada and Thomas Doliber are Eadith H. Hedge and Margaret E. Robinson. The daughter of Lucy W. Heath, Eadith Heath, retained the use of the Cohasset estate during her life. She died February 16, 1923, unmarried, leaving a will in which the State Street Trust Company and Harold Williams, Jr., were named as executors and trustees. They have duly qualified as such. Charles Heath (the son of Lucy W. Heath), Eadith H. Hedge and Margaret E. Robinson (daughters of Ada Doliber) are now living. The land has been sold by a commissioner, and the proceeds are held by him, subject to the determination of the court as to the rights of the parties therein. In the probate court a decree was entered directing that one-quarter of the proceeds should be paid to Eadith H. Hedge, one-quarter to Margaret E. Robinson, and one-half to Charles H. Heath. The trustees under the will of Eadith Heath and Charles Heath appealed.

[1] The life estate to the husband of Lucy W. Heath, as well as the life estate to her daughter Eadith, have now ended, and the question to be decided is, To whom are the proceeds of the estate to be distributed. The testatrix, Mrs. Heath, intended to dispose of her entire property and not to die intestate. There is a general presumption that when one makes a will, it is his intention to dispose of all his property and leave no intestate estate. A construction of a will resulting in intestacy is not to be adopted unless plainly required. Ames v. Ames, 238 Mass. 270, 276, 130 N. E. 681; Bates v. Kingsley, 215 Mass. 62, 63, 102 N. E. 306; Miller v. Idaho Industrial Institute, 222 Mass. 188, 110 N. E. 274; Shattuck v. Stickney, 211 Mass. 327, 333, 97 N. E. 774.

[2] As she desired to dispose of her entire estate, the testatrix directed that "if it should become necessary or expedient at any time to dispose of said Cohasset estate, then I direct the proceeds to be divided equally between my three children, Ada, Charles and Eadith." The law favors the creation of vested, rather than contingent estates, and those given by will should always be regarded as vesting at once, unless it clearly appears from the language of the will that it was the intention of the testator that the estate should be contingent upon some future event. Blume v. Kimball, 222 Mass. 412, 110 N. E. 1036; Whitman v. Huefner, 221 Mass. 265, 108 N. E. 1054; Gibbens v. Gibbens, 140 Mass. 102, 3 N. E. 1, 54 Am. Rep. Darling v. Blanchard, 109 Mass. 176, Where the remainder is to the children of the testatrix, as in the case at bar, the presumption that a vested rather than a contingent estate was created as strengthened. Whitman v. Huefner, supra; Mullaney v. Monahan, 232 Mass. 279, 283, 122 N. E.. 387. There is nothing in the will indicating that a contingent remainder was intended, and nothing to indicate the naming of a class where the survivors would inherit. The testatrix mentioned each of her three children by name, and the property was to be divided equally between Ada, Charles and Eadith. We do not consider Towne v. Weston, 132 Mass. 513, in conflict with this principle.

453;

177.

[3] The word "then," following the statement "if it should become necessary or expedient at any time to dispose of said Cohasset estate," refers merely to the time at which the distribution of the proceeds is to take effect, and not to the time for determining the person in whom the estate is to vest. The word "then" is used conjunctively; it means "in that case or in that event." Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70, 73, 83 N. E. 307; Dove v. Torr, 128 Mass. 38. A life tenant may be a remainderman in an estate, after his life estate, and the circumstance that Eadith was the life

tenant does not deprive her of the vested remainder. "There is nothing inconsistent or repugnant in the gift of a life estate with a remainder to a life tenant, even though such remainder can never come into the possession of the remainderman." Cushman v. Arnold, 185 Mass. 165, 169, 70 N. E. 43; Jewett v. Jewett, 200 Mass. 310, 317, 86 N. E. 308. In our opinion, Bragg v. Litchfield, 212 Mass. 148, 98 N. E. 673, Jones v. Gane, 205 Mass. 37, 91 N. E. 129, and similar cases, are not authorities supporting a different conclusion. The testatrix in the case at bar did not make a gift to a surviving spouse with a specific provision made to the donee; she was disposing of her entire estate, and gave to each of her three children, by name, an equal share in the remainder. She wanted her property to go to her own children. did not mean to discriminate against Eadith. She intended that she should have a life estate in the Cohasset property and participate in the remainder. Her interest was vested,

She

and whenever the estate was disposed of, whether during her life or after her death, she was entitled, if living, or her estate after her death, to share in the remainder. The testatrix created by her will a vested remainder in each of her three children. It follows that the proceeds of the property

should be divided among them.

[4] The decree of the probate court is reversed. A decree is to be entered, distributing the proceeds of the property, one-third to Charles Heath, one-third to the estate of Eadith Heath, and one-third to Eadith H. Hedge and Maragaret E. Robinson. Costs, as between solicitor and client, and the fees of the commissioner as stated in the decree of the probate court, are to be allowed. The disbursements of counsel are also to be allowed in the discretion of the probate court. Ordered accordingly.

MCBRIDE, County Treasurer, v. UNIVERSITY CLUB. (No. 18826.)

(Supreme Court of Ohio. March 3, 1925.)

(Syllabus by the Court.)

Courts 240 Suit, under statute, to recover back taxes illegally collected, is "action at law" within Constitution, and is not appealable to Court of Appeals; "chancery case."

A suit brought under the provisions of section 12075, General Code, to recover back taxes illegally collected, is an action at law and not a chancery case, within the purview of section 6, art. 4, of the state Constitution as amended in 1912. Nor is such an action appealable to the Court of Appeals under that section of the Constitution.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, ActionAction at Law.]

Error to Court of Appeals, Cuyahoga. County.

Suit by the University Club against Ralph C. McBride, County Treasurer. Judgment for plaintiff. The Court of Appeals dismissed defendant's appeal on motion of plaintiff, and defendant brings error. Affirmed.-[By Editorial Staff.]

In the court of common pleas of Cuyahoga county the University Club filed its petition against the county treasurer, styled "petition for money only." Pursuant to the precipe the summons was likewise indorsed, together with the amount claimed.

The University Club under the terms of a certain lease, with an option for purchase, had exercised the latter and obtained a deed in fee to the premises. This deed contained certain restrictions, among others one requiring the premises to be used for club or residence purthe county auditor assessed the premises for poses until 1936. The petition alleged that

valuation as if the same were unrestricted and available for business or commercial purposes, at $2,000 per foot, whereas their true value in money under the restrictions was only $600 per foot. The county auditor certified his valuation to the county treasurer

for collection. The club tendered to the county treasurer a certain amount which it claimed to be due legally for one-half the taxes, protesting against the payment of the balance upon the claim that the assessment was illegal. Later a complaint was filed with the county auditor against the valuation made under the auspices of the county auditor, asking for its reduction. Hearing was had before the county board of revision, and, later, before the tax commission of the state, wherein the club obtained no relief. Soon thereafter plaintiff paid, under protest, the balance of the tax levied against the premises upon the valuation made by the county auditor, together with interest and penalty. The petition alleges further that in arriving at its true value in money the auditor failed to take into consideration all matters affecting the value of the premises. The prayer asks that the court find the true value of the premises and that the plaintiff have judgment against the treasurer in the sum of $7,179.37, with interest, this being the amount of excess taxes and penalty paid by the club under its protest, and claimed to be illegal.

In the trial court a demurrer to the petition was overruled. An answer having been filed the case was submitted on the pleadings and evidence, and judgment was rendered in favor of the plaintiff for the amount claimed in the petition, with interest. The county treasurer thereupon appealed the cause to the Court of Appeals. That court dismissed the appeal on motion of the University Club, whereupon error was prosecuted to this court.

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