On the other hand it has been decided that a valid policy is not avoided by the cessation of the insurable interest, even as against the insurer, unless so provided by the policy itself. Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457. And expressions more or less in favor of the doctrine that we adopt are to be found also in Etna Life Ins. Co. v. France, 94 U. S. 561. Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591. It is enough to say that while the court below might hesitate to decide against the language of Warnock v. Davis, there has been no decision that precludes us from exercising our own judgment upon this much debated point. It is at least satisfactory to learn from the decision below that in Tennessee, where this assignment was made, although there has been much division of opinion, the Supreme Court of that State came to the conclusion that we adopt, in an unreported case, Lewis v. Edwards, December 14, 1903. The law in England and the preponderance of decisions in our state courts are on the same side.

Some reference was made to a clause in the policy that "any claim against the company arising under any assignment of the policy shall be subject to proof of interest." But it rightly was assumed below that if there was no rule of law to that effect and the company saw fit to pay, the clause did not diminish the rights of Grigsby as against the administrators of Burchard's estate.

Decree reversed.

MR. JUSTICE LURTON took no part in the decision of this case.

Opinion of the Court.

222 U.S.

UNITED STATES v. FIDELITY TRUST COMPANY.

APPEAL FROM THE COURT OF CLAIMS.

No. 280. Argued November 15, 1911.-Decided December 4, 1911.

A legacy to pay over net income to the legatee in periodical payments during the legatee's life on which the legatee has received several payments of income is not a contingent beneficial interest, but a vested life estate; and taxes paid on the value of such a legacy under the War Revenue Act of June 13, 1898, c. 448, 30 Stat. 448, 464, cannot be recovered under § 3 of the act of June 27, 1902, c. 1160, 32 Stat. 406. Vanderbilt v. Eidman, 196 U. S. 480, distinguished. Congress will be presumed to use familiar legal expressions in their familiar legal sense.

45 Ct. Cls. 362, reversed.

THE facts are stated in the opinion.

Mr. Assistant Attorney General Harr, with whom The Solicitor General was on the brief, for the United States.

Mr. Paul Fuller, with whom Mr. Barry Mohun was on the brief, for appellees.

Mr. A. R. Serven, Mr. H. T. Newcomb, Mr. Morris F. Frey and Mr. R. W. Joyce also filed a brief for appellees.

Mr. George P. Montague, by leave of court, filed a brief as amicus curiæ.

The Attorney General, with whom Mr. Barton Corneau was on the brief, in opposition to motion to dismiss or affirm.

Mr. JUSTICE HOLMES delivered the opinion of the court.

This is a suit to recover a portion of a succession tax paid under the act of June 13, 1898, c. 448, 30 Stat. 448,

464; the action being based on the act of June 27, 1902, c. 1160, § 3, 32 Stat. 406, which provides for refunding "so much of said tax as may have been collected on contingent beneficial interests which shall not have become vested prior to July first, nineteen hundred and two.". The petitioner, appellee, was residuary legatee under a will, in trust to hold the fund 'either as at present invested or in such securities as to my said trustee may be deemed safe,' and to pay over the net income to the testator's niece 'in quarterly payments during all the period of her natural life.' On June 8, 1900, the appellee made a return to the collector of internal revenue, stating that the value of the residuary estate was $120,303.94, and that of a specific legacy of silverware &c. to the niece, $500. With the aid of mortuary tables, the rate of interest being assumed to be four per cent, the clear value of the legacies to the niece was fixed at $74678.68, and an inheritance tax of $5600.90 was assessed upon it, which was paid on August 16, 1900. Up to July 1, 1902, the date fixed by the statute, the petitioner had paid to the niece $17027.59 income from the residue, and had delivered to her the specific legacy valued at $500. The tax on these sums at the rate of taxation was $1314.59, which, deducted from the whole tax paid, leaves $4286.31, to recover which this suit is brought. The appellees had judgment in the Court of Claims. 45 C. Cls. 362.

The words 'which shall not have become vested,' quoted above, mean the same as 'absolutely vested in possession or enjoyment' in a later clause ending the tax on contingent interests unless so vested before July 1, 1902. Vanderbilt v. Eidman, 196 U. S. 480, 500. On this ground it is argued at great length that only so much of the life interest of the niece as she had received before the date mentioned had vested in the sense of the clause. We are of opinion that this argument cannot be maintained. The interest of the niece was not a contingent right to income as

it should accrue in her lifetime, it was a vested life estate in a fund, changing in investment at the discretion of the trustee, but retaining its equitable identity. Objections like those that are made to treating a life estate as a present unity in the enjoyment of the life tenant might be made to the similar treatment of absolute ownership in fee. In actual life a fee can be enjoyed only minute by minute, but, although eternal in theory of law, by the same theory at every moment it is all and wholly in the owner's hands. The statute does not invite speculation in a new nomenclature, or attempt to reach profounder conceptions than those familiar to the law. When it speaks of interests absolutely vested in possession we presume that it uses familiar legal expressions in their familiar legal sense. It deals in terms with the interest, that is, the legal unit of right, not with the money received before a given moment. No better example of such an interest could be given than a life estate in a fund, the enjoyment of which actually has begun; none that more clearly and absolutely excludes the qualification 'contingent' in the sense of the law. Vanderbilt v. Eidman, 196 U. S. 480, concerned a life estate in remainder, which, whether the remainder was technically vested or contingent, Ibid. 501, 502, was not vested in possession or enjoyment. It was assumed that the tax was payable in a case like this. Ibid. 488, 495.

Decree reversed.

222 U.S.

Opinion of the Court.

SANDOVAL v. RANDOLPH.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 4. Submitted October 26, 1911.-Decided December 4, 1911.

A principal betrayed by his agent into paying for property an excess over the price for which the agent obtains it may declare in assumpsit without relying upon fraud and deceit in an action for damages.

An agent who makes a secret profit in the execution of his agency may be compelled to disgorge in an action upon implied promise.

Where one agrees to act as agent to purchase property at not exceeding a specified price, he cannot avail of an unexpired option antedating the employment to purchase the property at a less price himself and make the difference.

An agreement to sell at a price paid with right of redemption within a specified period with further agreement not to redeem if an additional sum be paid within that period simply amounts to an option. 11 Arizona, 371, affirmed.

THE facts are stated in the opinion.

Mr. Henry S. Van Dyke and Mr. Frank P. Flint, with whom Mr. G. Bullard was on the brief, for appellants.

Mr. Eugene S. Ives for appellee.

Memorandum opinion by direction of the court. By MR. JUSTICE LURTON.

Action for money had and received for the use of the plaintiff. A jury was waived and there was judgment for plaintiff upon a special finding of fact. This judgment was affirmed by the court below, the court holding that there was evidence supporting the findings of fact, and that when VOL. CCXXI-11