that the bill does not show irreparable injury; that the securities have been transferred to the parties; and that specific performance will not be decreed in Pennsylvania of contracts for the sale of stocks and chattels. We find ourselves quite unable to agree with any of these conclusions. We have already considered the averment of uncertainty and indefiniteness in the terms of the contract. We have endeavored to show that there is nothing indefinite or uncertain about it, but that its terms are plainly and clearly expressed, and we cannot conceive of any reason why they cannot be specifically performed. The subsequent sale and delivery of the securities to other parties, in disregard of the earlier contract with the plaintiff, is not of the least consequence as a defense, most especially when the bill avers that those parties had knowledge of the prior contract with the plaintiff, and they are made parties to the bill and are asked to be enjoined. We do not discover any want of mutuality in the contract. If the vendor had performed his part of the contract, and the vendee had refused to take the securities upon tender of them being made, we know of no reason why specific performance could not be decreed against the plaintiff. We are not referred to any authority holding such a doctrine. Certainly, an action for damages would lie, in which the whole contract value of the securities could be recovered, and that is a sufficient reply to the allegation of "want of mutuality." In Jennings v. McComb, 112 Pa. St. 518, 4 Atl. 812, we said: "The principle that contracts must be mutual, must bind both parties or neither, does not mean that in every case each party must have the same remedy for a breach by the other. Covenants may lie against one, where only assumpsit can be maintained against the other. Grove v. Hodges, 55 Pa. St. 504." In the note in 22 Am. & Eng. Enc. Law (1st Ed.) p. 940, it is said: "The mutuality required is that which is necessary for creating a contract enforceable on both sides in some manner, but not necessarily enforceable on both sides by specific performance."

The contention that the contract is uncertain, because the amount of the interest on the mortgage bonds and the car-trust notes is not stated, and the amount of the floating debt of the company is not given, and therefore the contract does not disclose how much money is to be paid for the securities, is of no force. The amount to be paid is fixed and definite ($160,000). There is no amount to be deducted unless the vendor defaults in his agreement to pay the interest on the bonds and note, and the principal and interest of the floating debt, and such default is not to be presupposed. But, if it occurs, the vendor can show what the amounts to be deducted are, and thus these amounts can be rendered certain, and that is certain which can be made certain. The only other contention of any importance is the one that bills

in equity will not lie in Pennsylvania for the specific performance of contracts for the sale of chattels. While this is true as a general rule, it is not true where the articles sold are of such a nature that they cannot be purchased in the market. This contract is for the sale and purchase of almost the whole of the bonds and stock of this particular company. These securities cannot be had nor obtained except under and by force of this particular contract. They cannot be bought in the general market, because they do not exist. Outside of this contract, there are but 2,000 shares of stock and $8,000 of bonds; hence it is not possible for the plaintiff to obtain the bonds and stocks which the defendant Walworth agreed to sell him, except by the specific performance of this contract. This consideration constitutes a well-established exception to the general rule which denies specific performance to executory contracts for the sale of chattels. This whole subject was discussed in the opinion of this court delivered by Clark, J., in the case of Goodwin Gas-Stove & Meter Co.'s Appeal, 117 Pa. St. 514, 12 Atl. 736, and the exception to the rule, as above stated, was clearly recognized and enforced. On page 534, 117 Pa. St., and page 738, 12 Atl., it is said in the opinion: "The same general principles govern in contracts for the sale of stocks of this character as in the sale of other personal property. If the breach can be fully compensated, equity will not interfere; but when, notwithstanding the payment of the money value of the stock, the plaintiff will still lose a substantial benefit, and thereby remain uncompensated, specific performance may be decreed. Wat. Spec. Perf. Cont. § 19. * The doctrine has in some cases been carried to this extent that, if a contract to convey stock is clear and definite, and the uncertain value of the stock renders it difficult to do justice by an award of damages, specific performance will be decreed."

The case of Foll's Appeal, 91 Pa. St. 434, cited for the appellee, has no application. The decision was founded upon the special and highly exceptional facts stated in the opinion, which do not appear in this case. Moreover, there were but 15 shares involved in that controversy, and there were several hundred more shares in the hands of other persons, which were susceptible of purchase. It nowhere appears on the record of this case that there is anything contrary to public policy in specifically executing this contract. The sufficiency of that reason for the decision of Foll's Appeal may well be questioned. To the writer, it is not at all sufficient; but the other reason, that there was other stock open to purchase, was of controlling force. In the present case, however, the contention founded upon a supposed public policy adverse to the acquisition of control by any one interest is altogether inapplicable. The public policy of a state is certainly indicated by its legislation. In Re Carpenter's Estate, 170

Pa. St. 203, 32 Atl. 637, we said: "How can there be a public policy leading to one conclusion when there is a positive statute directing a precisely opposite conclusion? * There can be no public policy which contravenes the positive language of a statute." In Van Steuben v. Railroad Co., 178 Pa. St. 367, 35 Atl. 992, we said: "The public policy of a state is to be deduced from the general course of legislation and the settled adjudications of its highest courts." By our act of April 23, 1861 (P. L. 410), and its supplements of March 17, 1869 (P. L. 11), February 17, 1870 (P. L. 31), and May 16, 1861 (P. L. 702), railroad companies were fully authorized to lease, make traffic contracts with, or purchase, the stock, bonds, etc., of other railroad companies; and these laws, and the numerous decisions under them, most clearly favor the existence of a public policy sanctioning all transactions of that character. In the case of Bald Eagle Val. R. Co. v. Nittany Val. R. Co., 171 Pa. St. 284, 33 Atl. 239, it was said by our Brother Dean in the opinion: "The right of one road to lease, make traffic contracts with, or consolidate with, connecting roads, not parallel or competing, has not for 34 years been doubted, that we know of. The act of April 23, 1861, expressly confers such right, and the constitution does not affect it, except to prohibit the consolidation and leasing of parallel and competing lines. The rights of connecting roads under that act have been recognized many times since the adoption of the constitution of 1874, and that contracts for through business, both freight and passenger, between connecting railroads and shippers, are not only not ultra vires, but, on the contrary, have for their basis sound business principles, and special contracts may be made with a special class of shippers to secure business. *** It is not seldom those who have reaped benefits from a contract such as this seek to escape its obligations by taking refuge in that assumed turpitude which, on grounds of public policy, avoids the contract; but here-and it is a gratification to us to say it-the parties to this contract violated no law, restrained not others from engaging in business, did nothing of evil example or detrimental to public morals. Therefore there is no public policy which, in the absence of express legislative enactment, makes void this contract." The act of April 23, 1861 (P. L. 410), contains the following provision: "That it shall and may be lawful for any railroad company created by and existing under the laws of this commo.. wealth, from time to time to purchase and hold the stock and bonds or either, of any other railroad company or companies, chartered by or of which the road or roads is or are authorized to extend into this commonwealth." In the face of such legislation, it is idle to talk of a purchase of the bonds and stocks of one railroad company by another being contrary to the policy of the law.

It is almost unnecessary to add that there

is nothing on this record showing, or tending to show, that the York Southern Railroad is a parallel or competing line with the Northern Central Railway.

With reference to the contention that there is an adequate remedy at law, and that the bill does not show an irreparable injury, it is enough to say that, under the case disclosed by the bill, the plaintiff has no remedy at law, and that the plaintiff's injury is necessarily irreparable in every equitable sense, if the plaintiff does not acquire the bonds and stock which it purchased, and avers its readiness and willingness to pay for. It was these bonds and stock which it bought, and which it had a perfect legal right to buy. If it cannot have them, its injury is necessarily irreparable, because it loses the very subject-matter of its contract. A money consideration, even if it could be obtained, is no substitute. The assignments of error are all sustained.

The decree of the court below is reversed, and the demurrer is overruled. The defendants are ordered to answer the bill under penalty of a decree pro confesso, and the record is remitted for further proceedings, the costs to be paid by the defendants.

In re COXE'S ESTATE. Appeal of COXE et al. (Supreme Court of Pennsylvania. Oct. 6, 1899.)

COLLATERAL INHERITANCE TAX-REMAINDERS.

Under Act May 6, 1887 (P. L. 79) § 3, providing that in case of a devise or bequest to collateral relatives, liable to the collateral inheritance tax, to take effect in possession or come into actual enjoyment after a life estate, the tax on such estate shall not be payable, nor interest begin to run thereon, till the person liable therefor shall come into actual possession of such estate, by termination of the life estate, and the tax shall be assessed on the value of the estate at the time the right of possession accrues to the owner as aforesaid: provided, the owner of any personal estate shall make a full return of the same within a year of decedent's death, and within such time secure the payment of the tax, and in case of failure so to do the tax shall be immediately payable,-there is no duty to make such return, or liability for immediate payment for failure thereof, except where the person who will take on the death of the life tenant can be positively identified immediately after testator's death, and the personal estate can be fully described, which is not the case where the property is left to trustees for the benefit of one for life, and after her death to others absolutely or for life, or, they being dead, to certain others, or to persons whom they may appoint by will.

Appeal from orphans' court, Luzerne county.

In the matter of the estate of Eckley B. Coxe, deceased. From a decree holding Eckley B. Coxe, Jr., and others, liable for a collateral inheritance tax, they appeal. Reversed.

A. H. McClintock and S. P. Wolverton, for appellants. L. A. Watres and James H. Torrey, for appellee.

GREEN, J. The entire contention in this case arises upon the reading of the third section of the act of May 6, 1887 (P. L. 79). In another form the cause was before us in Re Coxe's Estate, 181 Pa. St. 369, 37 Atl. 517, and an interpretation was then announced which is very material to the disposition of the present controversy. In that case it was contended on behalf of the commonwealth that the executors were the proper persons to make payment of the collateral inheritance tax upon all of the estate which was given by the will to collaterals, but not to take effect until after the death of the wid

We held that the executors were not the proper persons to be required to make present payment of the tax, because the estates subject to the tax were estates in remainder, which could not take effect until after the death of the life tenant, and the executors are not the persons primarily charged with the payment of the tax, either present or future. We also held that the word "owner," employed in the second proviso of the third section to designate the person who was charged with the duty of making a return to the personal estate subject to the tax, and give security for its ultimate payment, excluded the executors from the category of those who were subject to that duty, and that it had the same meaning as the words "person liable," or person "who shall come into actual possession," which appear in the first clause of the third section. In order to fully appreciate the import of this decision, and its relevancy to the present contention, it will be well to quote the full text of the third section. It is as follows: "In all cases where there has been or shall be a devise, descent or bequest to collateral relatives or strangers, liable to the collateral inheritance tax, to take effect in possession, or come into actual enjoyment after the expiration of one or more life estates, or a period of years, the tax on such estate shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate, by the termination of the estates for life or years, and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid." Before quoting the words of the proviso of the section, it is desirable to pause a moment to consider the plain meaning of the foregoing words. It is perfectly clear that those persons who do not take their estates until after the determination of a preceding life estate are not subject to any liability for the tax until they come into actual possession of their estates. The act says "the tax on such estate shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate." If the tax shall not be payable until that event, it does not arise, it has no beginning, and hence the commonwealth has no title to it and cannot de44 A.-17

mand its payment until the estate itself "comes into actual possession" of the person entitled. And such coming into actual possession must be "by the termination of the estates for life or years." And again, and in the same direction, it is positively provided that "the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid"; that is, although the estate in remainder may have had a definite value at the time of the death of the testator in the case of a will, or of the grant in case of a deed, it is not that valuation that is to be the test of the tax, but the valuation of the estate at the time it comes into possession. This is the plain, actual, common-sense meaning of the words we are considering, and this meaning is not at all impaired by the language of the proviso which we now quote: "Provided that the owner shall have the right to pay the tax at any time prior to his coming into possession, and in such cases the tax shall be assessed on the value of the estate at the time of the payment of the tax, after deducting the value of the life estate or estates for years. And provided further that the tax on real estate shall remain a lien on the real estate on which it is chargeable until paid. And the owner of any personal estate shall make a full return of the same to the register of wills of the proper county within one year from the death of the decedent, and within that time enter into security for the payment of the tax to the satisfaction of such register; and in case of failure so to do the tax shall be immediately payable and collectible."

The first proviso relates only to the case in which the owner desires to pay the tax before he comes into possession, and has no application here. It is under the second proviso only that the present contention arises. On its face and upon its plain meaning this proviso can only have application to the ordinary case of a devise or bequest to a per son who is named and can be positively identified "owner" immediately after the death of the testator, and also when the "personal estate" which is subject to the tax can be fully described, because the return of the estate must be made by the "owner" within one year after the death of the decedent, and the estate must then be described in return. Of course, the great majority of cases are of this character, and the duty, and the person who is to perform it, can be readily indicated. But where it is impossible that the "owner" who ultimately takes the estate can be known, or where, from the peculiar character of the estate to be charged, it cannot be identified within the year, the proviso becomes incapable of application, and the consequence of immediate payment of the tax does not result. It must be borne in mind that this consequence is merely an imposed penalty for the nonperformance of the duty prescribed by the proviso. It is in contravention of the pro

vision contained in the enacting part of the third section, which specifically declares that the tax "shall not be payable nor interest begin to run thereon" until after the termination of the life estate. Being, therefore, a penalty for the violation of a statutory duty, the law which imposes it must be strictly construed.

99

In endeavoring to ascertain whether the penalty has been incurred in the present case, it is indispensable to know who is the person that is to perform the duty, the violation of which is punished by making the tax immediately payable. In Re Coxe's Estate, supra, we decided that it was not the executors who were to make the return, and we so decided for the reason that they were not the owners of the estate to be charged. Our Brother Mitchell, delivering the opinion in that case, said, "By section 3 of the act of May 6, 1887 (P. L. 79), the tax on estates in remainder is not payable 'until the person or persons liable for the same shall come into actual possession of such estate by the termination of the estates for life or years.' After reciting the proviso the opinion proceeds: "It is under this last clause that the commonwealth claims that the tax in the present case is now collectible, and the learned court below has held that the executors are the owners liable for its payment. This construction, however, cannot be sustained without doing violence to the letter as well as the plain intent of the statute. The tax is not payable until the person liable for the same 'shall come into actual possession.' This cannot possibly mean any one but the remainder-man, for he is the only one to come into actual possession by the termination of the precedent estate for life or years. And in the proviso, which adds that 'the owner shall have the right to pay the tax at any time prior to his coming into actual possession,' the 'owner' must for the same reason be the remainder-man, for he is 'the person liable for the same,' and the only one who is to come into possession. And when, in the second proviso, 'the owner of any personal estate' is directed to make a full return of the same, and enter security for the payment of the tax, and in case of failure to do so the tax is to become immediately payable, the 'owner' meant is the same person as in the preceding clauses,-the person liable to pay, and the person who is to come hereafter into actual possession; i. e. the remainderman. The intent of the statute is to charge the beneficiary of the estate, and whether the phrase used is 'person liable,' or person who 'shall come into actual possession,' or 'owner' it always means the same person,the remainder-man. It is to him alone that the commonwealth must look for present pay:ment of tax on property, whether real or personal, the actual possession or enjoyment of which is postponed by an intervening period of life or years."

It will be perceived at once that the fore

going is an absolute adjudication that the only person who can be charged with the duty of making the return is the owner who is to come into actual possession of the estate to be charged, after the determination of the precedent life estate. If, in the present case, we can now know who those owners are, we can readily determine who are to perform the duty. But, on the other hand, if we cannot now know who those owners are, then it is impossible to decide who shall make the return, and the second proviso of the third section is incapable of application. The solution of the question requires only an examination of the will of the testator, to learn, if we can, who are the persons who are to take the collateral estates in remainder after the determination of the life estate of the widow. These are described, or rather defined, at much length, and by varying circumstances and conditions, in the will. The testator had no children, and left no lineal descendants. He had two living brothers, and children of two deceased brothers. To the brothers living and dead he gave nothing. Those were not named in the will. The living brothers were made executors, and to them he gave the whole residue of his estate, upon trust to pay over the entire income to his widow during her life. After her death the executors are to hold the estate in trust for all the nephews and nieces, children of the brothers named, "who shall have been living at the time of my death, and the lawful issue, living at the time of my death, of any nephew or niece who shall then be dead, leaving such issue, their heirs, executors, and administrators; the said nephews and nieces to take per capita, and not per stirpes, and the issue of any deceased nephew or niece to take among them such share only as their parent would have taken if he or she had been living at the time of my death, and to take such shares per stirpes, and not per capita." By subsequent provisions he directed that the share of any nephews who at the death of his widow had attained the age of 25 years should "vest in possession" absolutely; that the share of any nephew who had not, at the death of his widow, attained the age of 25 years, should be held in trust until he attained that age, and should then vest in possession; that the share of any male descendant of a nephew or niece should at the death of testator's widow vest in such descendant of such nephew or niece, if he had then attained the age of 21 years, otherwise it should be held for him until he did attain such age, and then vest absolutely. The shares of any nieces, and of the female descendants of nephews or nieces, entitled, the testator directed, should be held in trust for them during their lives, and only the net income of their shares should be paid to them, the principal to be paid after their deaths to the children of such as left children, or to the appointees by will of such as died and left wills, or to the right heirs of such as died and left no wills. Then

follows another provision, directing that, wherever in his will the testator had directed the payment of income or any portion of his estate bequeathed upon any trust, only one-half of such income derived from rents or royalties on coal mines should be paid out, and the other half should be retained by the executors, and be considered as capital to represent the exhaustion of the land due to the mining of coal therefrom, and the principal thus resulting should be held upon the same trusts as were provided for the other parts of his estate. Bearing in mind now that the only persons who are liable to pay the tax are those who are the owners of the estates subject to the tax at the time of the death of the widow, how is it possible now to say who those persons are, or who they will be? The widow may live many years. She is said to have an expectancy of 15 years, but may live far beyond that time. The time of her death is absolutely uncertain, and whether those who would be entitled if she were to die at this time will be alive when she dies is just as uncertain. They may all be then dead, or some may be dead and some living. Of those who may then be dead, some may have appointed by will the persons who shall take their shares of the estate; others may die intestate, and then only the right heirs of such, under the intestate laws of Pennsylvania, will be entitled to take. Who those persons may be it is beyond the wildest conjecture to determine. It is sufficient to say, as to all of the persons who will be legally entitled to take the collateral estates in remainder under the will of this decedent, that it is utterly and absolutely impossible to say at this time who they will be or may be, or whether any one of those who have been ordered to pay this tax will ever receive a single dollar of the estate upon which it is charged. It is the actual possession of the estate which alone creates the liability to pay the tax, and that liability does not arise until after the termination of the life estate, under the express and positive terms of the act. If the decree now made by the court below should stand, it may easily occur that the tax will all be paid by persons who may never receive a single penny of the estate, and that those who do receive the estate will never have paid a penny of tax. A conclusion so absurd and so grossly unjust ought never to be reached by a judicial sentence, unless in the stress of a dire necessity which cannot possibly be avoided. It is a satisfaction to know that there is no such necessity nor any sort of statutory requirement which demands such a ruling in this case. The commonwealth will receive the whole of this tax, beyond all question, and will receive it at the very time when by her own law she has ordained that it shall be paid. The persons entitled to the estate cannot receive it without the payment of the tax. It is the sworn duty of the executors to deduct the tax when paying over the share of the estate to which each party is entitled,

and to pay the tax thus received over to the commonwealth. So far as the nieces are concerned, the injustice of the decree is still more glaring and oppressive. Four of them have been decreed to pay each $5,990.97, as the collateral inheritance tax upon their shares of the estate, when in point of fact they are absolutely excluded by the will from ever receiving any portion of the estate other than the mere income of their shares. The principal is to be paid either to their appointees or their right heirs. As to all of the persons who have now been ordered to pay the tax, they will be obliged to pay it out of their own estates, if they have any, when the law manifestly contemplates and provides that it shall be paid out of the estate when receiv ed.

Another difficulty of quite a serious nature grows out of the character of the estate left by the decedent. The remainder-men are only subject to the tax upon its valuation at the time they received it. The present valuation shows that $200,000 of it consists of coal leases in which the testator was lessor. By the time of the widow's death it is entirely possible these leases will have become valueless by reason of the exhaustion of the coal. The same is true as to the common and preferred shares of the Cross Creek Coal Company and the notes of that company, amounting in the aggregate to upwards of $300,000. What will these be worth when the widow dies? Nobody can possibly tell, and hence the present valuation may be very largely impaired when the time arrives at which alone the estate is to be valued for the present taxation.

The precise question involved in the present controversy does not appear to have been before us at any time heretofore. The nearest approach to it is the case of In re Coxe's Estate, supra, and the reasoning upon which that decision was founded seems to lead directly to our present conclusion. In the state of New York, where the collateral inheritance tax law is very similar to our own, the court of appeals appears to have reached the same conclusion as is expressed in this opinion. In Re Curtis, 142 N. Y. 219, 36 N. E. 887, in Re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281, and in Re Hoffman's Estate, 143 N. Y. 327, 38 N. E. 311, various aspects of this subject were presented; and the decisions made were upon the theory that the tax could not be imposed until after the determination of the precedent life estates, and then only upon that which came to the ultimate remainder-man. The facts were not the same in all the cases, nor were the questions precisely the same, but the controlling principle expressed was as above stated. In Re Roosevelt's Estate, Bartlett, J., in the opinion, said: "It is not to be assumed that the legislature intended to compel the citizen to pay a tax upon an interest he may never receive, and the reasonable construction of this statute leads to no such unjust result. It does not