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states have no such laws as are found in our said Section 25 of the Act of 1917. In Gleason and Otis on Inheritance Taxation (2 Ed.) page 267, it is said:

“It was formerly the rule in New York and still is in many states to postpone the taxation of the remainder until the expiration of the intermediate estate. [McLemore v. Raines' Estate, 131 Tenn. 637, 176 S. W. 109; State ex rel. Hale v. Probate Court, 100 Minn. 192, 110 N. W. 865; Matter of Cager, 111 N. Y. 343, 18 N. E. 866; Matter of Hoffman, 143 N. Y. 327, 38 N. E. 311.]

“d. Presently Taxable.

“By Chapter 76, L. 1899, the rule was changed in New York so as to provide for the present taxation at the highest possible rate of all contingent remainders, with a refund in case a lower rate ultimately proves to be due. This statute has been copied in many states and is held constitutional. [People v. Lowenstein, 284 Ill. 126, 119 N. E. 917; Matter of Vanderbilt, 172 N. Y. 69, 64 N. E. 782; Matter of Brez, 172 N. Y. 609, 64 N. E. 958; Matter of Kennedy, 93 App. Div. 27, 86 Supp. 1024.]

“The taxation is against the trustees who take the legal title. Order of Surrogate affirmed without opinion. [Matter of Guggenheim, 189 N. Y. 561, 82 N. E. 1127.]”

In the case of Matter of Zorowski, 213 N. Y. 1. c. 116, it is said:

“The different statutes hereinbefore referred to contain evidence of a constant effort of the Legislature to enlarge the class of transfers immediately taxable upon the death of the transferror. The question of the Legislature's power in that regard was set at rest by the decision of this court in Matter of Vanderbilt (supra). In one aspect it may be unjust to the life tenant to tax at once the transfer, both of the life estate and of the remainder though contingent, and it may seem unwise for the State to collect taxes which it may have to refund with interest, but those considerations are solely for the Legislature, who are to judge whether they are more than offset by the greater certainty which the State thus has of receiving the tax ultimately its due under the statute.

State Treasurer v. Trust Co.

However unwise or unjust it may seem in a particular case like this for the State to collect the tax at the highest rate when in all probability the remainder will vest in a class taxable at the lowest rate, it is the duty of this court to give effect to the statute as it is written."

The italics are ours, and it will be noticed that the decision was made after the State of New York had amended its law, so as to read practically as our Section 25 of the Act of 1917 reads.

To like effect is case of Matter of Parker, 226 N. Y. 262, as well as other New York cases that might be cited.

Illinois has the same provision in substance, and the courts of that State have upheld it. [People v. Lowenstein, 284 Ill. 1. c. 132.] In this case they are discussing Section 25 of the Illinois Act, which is almost identical with our Section 25 of the Act of 1917. The Illinois court follows the reasoning of the New York court. To like effect is People v. Byrd, 253 Ill. 223, whereat it is said that their statute was borrowed from New York.

Under our ruling in McClintock v. Guinotte, 275 Mo. 298, the State had the right to name the conditions of the transfer and succession, and had the right to require the trustee in this case, the holders of the legal title, to pay the taxes at once, and this without a return payment of the excess taxes in the end, had such been done. The fairer method would be to provide for a return of the excess, and most of the statutes so provide. But of this portion of the statute later.

From it all, it appears that (to say the least) the probate court followed the statute in fixing the rate, and in fixing the time of payment. Appellants' first contention must be ruled against them.

II. The plan of attack in this case has been in the form of pointing out alleged inconsistencies in the Act of 1917. We have just dealt with one of them in the first portion of the opinion. It is urged that the remainder

State Treasurer v. Trust Co.

men (as they call the beneficiaries of this trust) Refund.

14. can never have the benefit of a refund of the excess taxes paid, if the class which ultimately gets the fund is entitled to pay at a less rate than the highest rate. This for the reason, as they say, Section 12 of the act only allows two years in which to make application for re-payment. Section 12 reads:

“When any tax shall have been paid erroneously to the State Treasurer it shall be lawful for him, on satisfactory proof of said erroneous payment, to refund and pay to the executor, administrator, or trustee, person or persons who paid the same the amount of such tax so erroneously paid; Provided, that all applications for the refund of said tax shall be made within two years from the date of the said payment.”

A sentence in Section 25 reads: “Such return of over-payment shall be made in the manner provided by Section twelve of this act, upon the order of the court having jurisdiction."

Section 12, supra, clearly has reference to an erroneous payment of a tax as a whole, and not to an excess payment provided for by Section 25 for the emergencies of that section. The parties named in Section 12, to whom re-payment is to be made, are all in ésse, and can make their application within two years. This two-year provision in said Section 12 is in the nature of a statute of limitations. The parties must proceed within two years or be barred. The two years begins from the time they were entitled to the refund. If it was an erroneous payment they were entitled to an immediate refund. In other words, their claims for refund arose immediately upon the payment of the erroneous tax.

When we examine the sentence from Section 25, quoted, supra, it will be noticed that it only provides for a repayment of an over-payment “in the manner provided for in Section 12 of this act." That manner is upon satisfactory proof. Under Section 25 no claim arises at the time of payment, but only at the time when it is determined to what particular class the fund goes.

State Treasurer v. Trust Co.

A reasonable construction of these two provisions is, that as to the claims for excess payment of taxes under Section 25, the parties would have the two years from the date it becomes settled that there was an excess payment of taxes. This harmonizes this alleged conflict.

But beyond all this, there is a deeper question. The State had the right to fix its own terms as to the transfer of this property. [State ex rel. McClintock v. Guinotte, 275 Mo. 298.] Section 25 and throughout the Act of 1917, the word “transfer” or “transferred” is used. Under the McClintock Case, supra, the State had the right to say that where a testator so makes his will that it is uncertain as to what class will take, then the tax shall be fixed for that transfer, at the rate payable by the class, of the uncertain classes named in the will, which would pay the highest rate. For the purpose of the tax the State could make property transferred in this manner a class to itself, and fix the highest rate as suggested above, without any provision for repayment of the excess. The foregoing are our views, but they may not be called for upon the record before us.

We feel that the two sections can be harmonized in the manner first suggested above, and that there is no just complaint against the law. It should be added that both New York and Illinois have similar troubles in their statutes, and the courts of those states have ruled that the statutes are valid, and referred the complainants to the Legislature for relief. [See the New York and Illinois cases, supra.]

III. The third exception filed in the probate court, relied upon here, is two-fold. First, it is said that it is a tax upon the transfer of property, but not in accordance with the Act of 1917. It is in exact accord with the

provisions of that act, as we have said in our When Determined. first sub-division of this opinion. The courts

throughout the country differ as to when the tax shall be determined and paid upon contingent remainders, but they all agree that such interests (what

293 Mo.-36

Carr v. Auto Supply Co.

ever their uncertainties and contingencies) can be charged with an inheritance tax by the State. These differences in the opinions, as we have said, are occasioned by differences of the statutes. Under statutes worded as is ours the assessment and payment are made

at once, and the courts having before them such statutes · have upheld them.

The latter portion of this third exception (contrary to the allegation in the first portion) charges that the tax is one upon property and not upon the transfer of

property. Of course if it were a tax upon propProperty y erty it could not stand. This whole matter is

covered by the McClintock Case, supra, and the cases therein cited, as well as by the other cases cited herein, and we need not re-argue the question. The mere fact that there are contingencies as to the ultimate beneficiaries does not change the situation.

The judgment should be affirmed, and it is ordered. All concur.

Tax.

LUKE CARR, Appellant, v. ST. LOUIS AUTO SUP

PLY COMPANY.

Division One, April 8, 1922. 1. CONCURRENT NEGLIGENCE: Each Wrongdoer Liable. Con

current negligence, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrong. ful acts or omissions of two or more persons acting independently, and all such persons are ordinarily liable therefor. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage.

- Conflicting Instructions. Where the instruction to the Jury, given by the trial court for the plaintiff, correctly embodied the law of concurrent negligence as applied to the evidence in the case, it was reversible error for the court to give for defendant an instruction to the effect that notwithstanding they found defendant negligent as charged, still, if the immediate cause of the injury

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