To the same effect are Knights of Honor v. Nairn, 60 Mich. 44, 26 N. W. 826, and Coyne v. Bowe, 23 App. Div. 261, 48 N. Y. Supp. 937, affirmed in 161 N. Y. 633, 57 N. E. 1107. The case of Henderson v. Modern Woodmen, 163 Mo. App. 186, 146 S. W. 102, recognized the same rule, but held that it had been waived in that case. In Stemler v. Stemler (S. D.) 141 N. W. |ficiary named in the certificate, which the 780, the request for a change in beneficiary by-laws provided should be still in force." was delivered to the local clerk, who mailed it to the Head Clerk on the same day. The assured died on that day. Two days later the Head Clerk received the request and issued a new certificate before he knew of the death. In considering the identical by-law now in question the court say: "There was no delivery of the old certificate to the Head Clerk, or issuance of a new one, during the lifetime of the insured member, and the certificate was therefore in full force and effect at the time of the death of the insured, and the right of the plaintiff to the proceeds of said original benefit certificate, immediately upon such death, became vested in plaintiff, and it was thereafter beyond the power of the Modern Woodmen to change or affect such vested right of plaintiff by revocation of the old and issuance of a new certificate in which defendant was designated as beneficiary." In Kemper v. Modern Woodmen, 70 Kan. 119, 78 Pac. 452, the request for a change in beneficiary was mailed to the Head Clerk February 13th, and was received by him February 16th. The assured died February 15th. The by-law as it then existed provided that the change should not be effective until the delivery of the new certificate. The court say: "It was competent for the assured to contract with the society of which he was a member that no change in his certificate respecting the beneficiary should take effect until the new certificate should be delivered to him. He did so agree, and we are merely upholding the stipulations in his contract when we decide that there can be no recovery against the society on a certificate never delivered. One party to a contract cannot annul its conditions without the consent of the other. As held in the case last quoted from (Coyne v. Bowe [23 App. Div. 261] 48 N. Y. Supp. 937) the contract ought to be sanctioned, as it makes certain who the beneficiary is, and prevents complications and difficulties arising in determining the rights of conflicting claimants. This was the undoubted purpose in making the bylaw under consideration." Under the contract between John Hyland and the association, the old certificate remained in full force and effect, unless a new one were issued within his lifetime. The request for the new certificate was not presented in time to reach the Head Clerk before his death. At his death the plaintiff was still the beneficiary, and her right to the proceeds of the certificate then vested. The ruling of the trial court was correct, and the order appealed from is affirmed. TIERNEY v. MODERN WOODMEN OF (Supreme Court of Minnesota. Feb. 6, 1914.) of new trial, plaintiff appeals. Affirmed. PER CURIAM. This case involves the same certificate considered in Hughes v. Modern Woodmen, 145 N. W. 387, filed herewith. Plaintiff, the daughter of the assured, brought this action in the district court of Hennepin county to recover thereon. The trial court found that she was not the beneficiary thereunder, and directed judgment for defendant. She made a motion for a new trial, which was denied, and she appealed. The case is controlled by the decision in the Hughes Case, and the order appealed from is affirmed. STATE ex rel. SMITH, Atty. Gen., v. PROBATE COURT OF RAMSEY COUNTY et al. (Supreme Court of Minnesota. Feb. 6, 1914.) (Syllabus by the Court.) TAXABLE TRANSFER. Acting under a power of appointment in a will executed by his mother in Kentucky, a testator residing in Minnesota' exercised the powof Tennessee, as the beneficiaries. The prop er in his will, naming his nephews,_residents erty which was the subject of this exercise of the power was indebtedness of corporations and individuals secured by bonds and mortgages which were at the time of the testator's death and for many years had been in the custody of a resident of Kentucky. It is held it was the exercise of the power of appointment that constituted the transfer of the property, and not its creation. In Counsman v. Modern Woodmen, 69 Neb. 710, 96 N. W. 672, 98 N. W. 414, the assured 1. TAXATION (§ 878*) - INHERITANCE TAXdied after the request for a change in beneficiary had been delivered to the clerk of the local camp and before it had been received by the Head Clerk. The court say: "It would seem that the death of the assured, Counsman, before the presentation, even, of this requirement for a change of beneficiaries, which was refused when presented because of its noncompliance with the bylaws of the association, effectually prevented his desire in this respect from taking effect, and caused the right to the fund to vest upon his death, eo instanti, in the beneFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1700, 1701; Dec. Dig. § 878.*1 2. TAXATION (8 878*) - INHERITANCE TAXTAXABLE TRANSFER-APPOINTMENT. Under the Inheritance Tax Law of this state (Gen. St. 1913, § 2271), the appointment, when made, is a taxable transfer in the same manner as though the property to which such appointment relates belonged absolutely to the donee of the power, and had been bequeathed or devised by the will. Therefore this case is treated as though the testator had actually owned the property, and had bequeathed it to his nephews. distributed according to the laws of Kentucky. William Heron was at the time of his mother's death, and still is, a resident of the state of Tennessee. George S. Heron was then, and until his death, a resident of the state of Minnesota, living in St. Paul. The trustee was, and still is, a resident of Kentucky. George S. Heron died May 10, 1912, [Ed. Note. For other cases, see Taxation, leaving real and personal property in RamCent. Dig. §§ 1700, 1701; Dec. Dig. § 878.*] sey county. At the time of his death the cor3. TAXATION (§ 868*) — INHERITANCE TAX-pus of the entire trust estate was $104,870.05. SITUS OF PROPERTY. It consisted entirely of personal property, As between debtor and creditor, the situs bonds and mortgages, all in the possession of of a debt is the domicile of the creditor. But he may give it a situs elsewhere, and it may be taxed under the laws of the state where the evidences of indebtedness are deposited. But our statute imposes a tax upon the transfer of the property, and not upon the property itself. The transfer, having been made in this state by a resident thereof, is taxable here, although the actual situs of the property was at the time of the testator's death in Kentucky, and although such transfer may be subject to a tax in Kentucky. the trustee in Kentucky. George S. Heron died testate. After making certain specific bequests, the will gave to the testator's brother William, during his lifetime, one-half of "what would be my share, if living, of the income derived from the estate of my deceased mother." Upon the death of William, the will provided that "my said interest in my said mother's estate shall pass to and be vested in my nephews, Shirley S. Heron and William Edgar Heron, sons of my said broth residuary clause, in which these nephews were named as beneficiaries, in equal shares. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 88 1685-1687; Dec. Dig. § 868.*1 Certiorari by the State, on relation of Lyn-er, in equal shares forever." There was a don A. Smith, as Attorney General, to review an order of the Probate Court of Ramsey County determining the amount of the inheritance tax to be paid by the legatees of George S. Heron, deceased. Order of probate court reversed, with directions. Lyndon A. Smith, Atty. Gen., and Wm. J. Stevenson, of St. Paul, for appellant. Charles P. Hall, of Red Wing, for respondents. BUNN, J. Certiorari to review an order of the probate court of Ramsey county determining the amount of inheritance tax to be paid by the legatees of George S. Heron, deceased. The undisputed facts appear from the return of respondents to the writ, and are as follows: The question is whether this exercise by George S. Heron of the power of appointment given to him by the will of his mother was a transfer of property that is taxable under the inheritance tax law of this state. The probate court held that it was not. Our statute, Laws 1905, c. 288, as amended by Laws 1911, c. 372 (G. S. 1913, § 2271), provides in section 1: "A tax shall be and is hereby imposed upon any transfer of property, real, personal or mixed, or any interest therein, or income therefrom in trust or otherwise, to any person, in the following cases:" * (1) "When the transfer is by will or by the intestate laws of this state from any person dying possessed of the property while a resident of this state." (2) "When a transfer is by will or intestate law, of property within the state or under its jurisdiction and the decedent was a nonresident of the state at the time of his death." (3) Relates to transfers in contemplation of death. shall More than 15 years ago Sarah Heron, a resident of Kentucky, died, leaving a will which was probated in that state. By this will the testatrix gave to her executor, in trust for the use and benefit of her two sons, William and George S., the residue of her estate. The trustee was given the management and control of the property, with power to sell and reinvest the proceeds. The income of the trust estate the testatrix bequeathed to her two sons, to be paid to them equally as it was collected by the trustee. She gave to these sons the right of disposing of, by will, the entire trust estate. Each was given the right to make his will, disposing of, as he might choose, one moiety of said trust estate. If both died intestate, the entire trust estate was to descend and be distributed ac-erty to which such appointment relates becording to the laws of Kentucky. If one son should die testate and the other intestate, the moiety of the one dying testate was to descend as he should direct by his will, and the remaining moiety should descend and be (4) When tax to be imposed. (5) "Whenever any person exercise a power of appointment derived from any disposition of property made either before or after the passage of this act, such appointment when made shall be deemed a taxable transfer under the provisions of this act in the same manner as though the prop longed absolutely to the donee of such power and had been bequeathed or devised by such donee by will," etc. [1] 1. George S. Heron by his will clearly exercised the power of appointment created by the will of his mother. It is the exercise | that the domicile of the owner is deemed the of the power of appointment which affects the transfer, gives the grantee the property, and not its creation. The language of the statute is that "such appointment when made shall be deemed a transfer." The authorities are uniform on this point. Matter of Dows, 167 N. Y. 227, 60 N. E. 439, 52 L. R. A. 433, 88 Am. St. Rep. 508; Matter of Fearing, 200 N. Y. 340, 93 N. E. 956; Matter of Delano, 176 N. Y. 486, 68 N. E. 871, 64 L. R. A. 279; Chanler v. Kelsey, 205 U. S. 471, 27 Sup. Ct. 550, 51 L. Ed. 882; Attorney General v. Upton, L. R. 1 Ex. 224. [2] Had the property transferred by this exercise of the power by Heron been real estate in Minnesota, or personal property having its actual situs in the state, there can be no doubt that the transfer would be taxable under our statute. The statute says that such appointment shall be deemed a transfer taxable under the provisions of the act "in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will." We must treat the case, therefore, as though the bonds and mortgages which constituted the corpus of the trust estate, though in the actual custody of a nonresident, belonged absolutely to George S. Heron, and he had bequeathed them to his nephews. Matter of Cooksey, 182 N. Y. 92, 74 N. E. 880; Matter of Fearing, 200 N. Y. 340, 93 N. E. 956. situs of his personal property "is not allowed to be controlling in matters of taxation. Thus corporeal personal property is conceded to be taxable at the place where it is actually situated. A credit, which cannot be regarded as situated in a place merely because the debtor resides there, must usually be considered as having its situs where it is owned-at the domicile of the creditor. The creditor, however, may give it a business situs elsewhere; as where he places it in the hands of an agent for collection or renewal, with a view to reloaning the money and keeping it invested as a permanent business." In the Bristol Case, in which the Jefferson Case was upheld and followed, Mr. Chief Justice Fuller said: "Personal property, as this court has declared again and again, may be taxed, either at the domicile of its owner, or at the place where the property is situated, even if the owner is neither a citizen nor a resident of the state which imposes the tax." It is doubtless true, under these decisions, that the state of Kentucky could and probably has taxed this property, and also that it has not been taxed in Minnesota. And it is probably true, the bonds being deposited in Kentucky, that Kentucky could tax a transfer of the property by its Minnesota owner. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, 34 L. R. A. 232, 55 Am. St. Rep. 640; Matter of Lord, 186 N. Y. 549, 79 N. E. 1110; Lord v. Glynn, 211 U. S. 477, 29 Sup. Ct. 186, 53 L. Ed. 290. But this is not controlling. The question is whether the transfer in Minnesota by the owner residing in Minnesota escapes the tax because the evidences of indebtedness are not in the state. Though there can be no suspicion in the instant case of any attempt to evade the inheritance tax law, it is easy to see how an owner of bonds could easily do so, if we held this transfer not taxable. He might deposit his securities in a bank or strong box located in some state or country that had no inheritance tax law, and thus escape the payment of the tax. In Ross on Inheritance Taxation, § 173, the author says: "In a majority of the states, the personal property of a resident decedent is held subject to the inheritance tax law of the state, although actually situated in another state, where it may also be taxed by the statutes of that state. Oth [3] 3. Heron was a resident of Minnesota, and exercised the power of appointment here. Treating the indebtedness evidenced by these securities as the absolute property of Heron, as, under the statute, we must for the purposes of this case, their situs as between the debtor and the creditor was the domicile of the latter. State Tax on Foreign-Held Bonds, 15 Wall. 300, 21 L. Ed. 179; Matter of Bronson, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632; Matter of Fearing, 200 N. Y. 340, 93 N. E. 956. It is well settled, however, that in modern times the old rule, that the situs of personal property is the domicile of the owner, "has yielded more and more to the lex situs, the law of the place where the property is kept and used." Pullman's Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613. For the purposes of taxation, the law may separate personal property from the person of its own-erwise stated, personal property within the er, and give it a situs of its own. Tappan v. Merchants' National Bank, 19 Wall. 490, 22 L. Ed. 189; Savings Society v. Multnomah County, 169 U. S. 421, 18 Sup. Ct. 392, 42 L. Ed. 803; New Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ct. 110, 44 L. Ed. 174; Bristol v. Washington County, 177 U. S. 133, 20 Sup. Ct. 585, 44 L. Ed. 701; In re Jefferson, 35 Minn. 215, 28 N. W. 256, 2 Notes on Minnesota Reports, 872. As stated by Chief Justice Gilfillan in the Jefferson Case, the rule jurisdiction of a foreign state is subject to the inheritance tax at the place of the decedent's domicile. This is on the theory that the tax imposed upon the transmission of the property is governed by the law of the domicile of the owner." The cases cited by the author fully support the text. Appeal of Gallup, 76 Conn. 617, 57 Atl. 699; Appeal of Hopkins, 77 Conn. 644, 60 Atl. 657; Frothingham v. Shaw, 175 Mass. 59, 55 N. E. 623, 78 Am. St. Rep. 475; McCurdy v. McCurdy, 197 Mass. 248, 83 N. E. 881, 16 L. R. A. (N. | personal property situated within its borders S.) 329, 14 Ann. Cas. 859; Matter of Swift, and owned by a nonresident, and at the 137 N. Y. 77, 32 N. E. 1096, 18 L. R. A. 709; same time taxing a transfer by a resident of Estate of Lines, 155 Pa. 378, 26 Atl. 728; property that has its actual situs in another Estate of Hartman, 70 N. J. Eq. 664, 62 Atl. state, under the fiction of "mobilia sequuntur 560. personam," especially when the same transfers may be taxed under the laws of the state where the decedent had his domicile, in the one case, and of the state where the property was situated when he died, in the other. But, as said by Justice Holmes, these inconsistencies infringe no rule of constitutional law. It is for the Legislature, and not the courts, to remove these "inconsistencies." We note that the inheritance tax law of Massachusetts provides that property of a resident of the commonwealth which is not therein at the time of his death is not taxable under the provisions of the act, if it is legally subject in another state or country to a tax of like character and amount. We are obliged to hold, under the language of our statute and the decisions referred to, that the transfer by Heron of the bonds and mortgages in Kentucky was taxable here. The case of Matter of Hull, 111 App. Div. 322, 97 N. Y. Supp. 701, affirmed by the Court of Appeals on the opinion of the Appellate Division, 186 N. Y. 586, 79 N. E. 1107, is almost identical in its facts. In so far as Matter of Thomas, 39 Misc. Rep. 136, 78 N. Y. Supp. 981, supports the respondent here, it must be considered as overruled by the Hull Case. The Swift Case is notable because Judge Gray, who wrote the opinion, argued quite persuasively that the law in reality imposed a tax on the property of the decedent, and not on the transfer, and therefore that the tax was only enforceable as to property which, at the time of its owner's death, was within the territorial limits of the state. But the other members of the court were of the contrary opinion, and the decision was that a transfer of personal property by a resident decedent was subject to the tax, whether situated within or without the state. And the cases are quite unanimous in holding to the doctrine that an inheritance tax is not a tax on the property, but a tax on the transfer, or right of succession. State v. Bazille, 97 Minn. 11, 106 N. W. 93, 6 L. R. A. (N. S.) 732, 7 Ann. Cas. 1056. In Appeal of Hopkins, supra, the Supreme Court of Connecticut, in speaking of the statute of that state, said: "The act is framed in view of the principle that personal property is bequeathed by will, and is descendible by inheritance, according to the law of the domicile, and that the disposition, distribution of, and succession to, personal property; wherever situated, is to be governed by the laws of that state where the owner had his domicile at the time of his death." The New Jersey Court, in Estate of Hartman, supra, holds that the situs of personal property of a testator, for the purposes of the inheritance tax, is his domicile at the time of his death, no matter LEWIS v. CHICAGO GREAT WESTERN if its actual situs is in another state. The court observes that the result of its decision would be, in the case before it, "the requirement of the payment of two taxes, of like character, by the same legatees for the right of succession to the gifts of the testatrix," but says that "this unfortunate situation cannot control the determination of the questions presented." So in Blackston v. Miller, 188 U. S. 189, 23 Sup. Ct. 277, 47 L. Ed. 439, Mr. Justice Holmes, after saying that no one doubts "that succession to a tangible chattel may be taxed wherever the property is found," though it may also be taxed by the law of the domicile, observes that "it may be regretted, also, that one and the same state should be seen taxing on the one hand according to the fact of power, and on the other, at the same time, according to the fiction that, in successions after death, mobilia sequuntur personam and domicile governs the whole. But these inconsistencies infringe no rule of constitutional law." We readily agree that it may be regretted that this state should be seen taxing "according to the fact of power" the transfer of The order of the probate court of Ramsey county is reversed, with directions to -enter an order in accord with this opinion. R. CO. (Supreme Court of Minnesota. Feb. 6, 1914.) (Syllabus by the Court.) Evidence in an action by a railroad brakeman to recover damages for injuries received from being caught between the engine tender and the end of certain poles projecting from a car which he had just uncoupled, or was uncoupling, held insufficient to sustain a verdict in his favor, in that thereunder it was merely conjectural whether the accident was due to have involved liability on defendant's part, or some movement of the engine, which would from the settling of the poles or cars, which would not. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*] Appeal from District Court, Ramsey County; Frederick M. Catlin, Judge. Action by James Lewis against the Chicago Great Western Railroad Co. Verdict for plaintiff. From denial of its alternative motion for judgment or new trial, defendant appeals. Reversed, and new trial granted. Briggs, Thygeson & Everall, of St. Paul, for appellant. Barton & Kay, of St. Paul, for respondent. PHILIP E. BROWN, J. Defendant appeals from an order denying its alternative motion for judgment or new trial, after verdict for plaintiff returned in an action to recover damages for personal injuries. There is little dispute on the facts, and none as to the following: On November 26, 1912, and previously, plaintiff was a freight brakeman in defendant's employment; his run being between Austin and Hayfield, in this state. A flat car loaded with poles had remained on defendant's side track in Austin for several days prior to the date stated. Its load had shifted forward, so that some of the poles projected over one end. Plaintiff was familiar with this car and the condition of its load. In the evening of the day mentioned, pursuant to his duties, he coupled the car into a train, next to the engine. In order to do this, and to connect the air hose, he had to get under the ends of the poles. Later the train, including this car in the position stated, was moved out, plaintiff accompanying it, and arrived at Mayville, the next station, about 10 o'clock p. m.; the night being very dark. When the train arrived there, two cars were standing on the side track. Pursuant to orders, plaintiff cut out the pole car from the train by uncoupling and disconnecting the air at the rear end. The engine and car then moved forward, plaintiff accompanying them, and backed slowly in on the siding, until the car came in contact with the forward car already there. Plaintiff gave the engineer a stop signal, who there upon applied the air and brought the engine and car to a stop, and plaintiff, for the purpose of leaving the car on the siding, stepped in between it and the tender, turned the angle cocks, and disconnected the air, whereupon his head was caught between the tender and projecting poles, thus occasioning the injuries complained of. 1. The complaint charged negligence in the condition of the poles, and also that defendant moved the engine and car, shoving them closer together, while plaintiff was in the position stated, thus causing the accident; but the court submitted the latter ground only. The sufficiency of the evidence to sustain the verdict being challenged, a somewhat fuller statement thereof relating to the occurrence is necessitated. The side track was level at the place of the accident. The engine and car were equipped with air brakes, and to accomplish the switching movement the engineer started the engine in backward motion, then shut off the steam and "drifted in," using the air for control; the speed, when backing, being three or four miles an hour, and there being but slight jar when the cars came together. The stop was made by applying the air brakes on engine and car, the engine remaining set for fur ther backward movement, wherefore, if any motion thereafter occurred, it would have been towards the car. The effect of the setting of the brakes, however, was to hold the engine and car steady and leave them standing where they stopped, and the engineer contemplated that the next movement after detaching the car would be forward. An invariable rule required the setting of brakes on cars left on sidings. At the time of the accident, the rear brakeman was near the rear end of the car, but was not called as a witness. Plaintiff testified, at folio 47 of the paper book, that the train movement coupled the car to the other two, and there was no testimony to the contrary. No witness testified to seeing the accident, or to any movement of the engine, cars, or poles after the stop. It seems probable that plaintiff's injury could have resulted from either, and all other causes are apparently eliminated. Plaintiff's case rests upon the theory that the engine moved, and claims such was established by the circumstances disclosed; while defendant argues to the contrary, claiming also that the accident probably resulted from a slack movement of the cars occurring after plaintiff went between the car and tender, or else from some shifting of the poles, or in any event that the cause was left to mere conjecture. The engineer testified positively that the engine remained stationary after the stop. Plaintiff's version in this connection was that "by some unknown movement" his head was caught between a pole and the back of the tank, thus held from 15 to 20 seconds, and then released; doubtless meaning, by the expression quoted, nothing more than that he Aside from medical did not know the cause. experts, these two were the only witnesses sworn. The applicable law has frequently been declared by this court, as follows: Causal connection between the negligence claimed and the injury need not be proved by direct evidence, but the proofs must be something more than merely consistent with plaintiff's theory of how the accident occurred. "If the circumstantial evidence in any case furnishes a reasonable basis for the inference by the jury of the ultimate fact that the alleged negligence was the cause of the injury complained of, it is sufficient proof of a causal connection to support the verdict;" while, on the other hand, if the question of negligence in the premises is left conjectural, no recovery can be had. Moores v. Northern Pac. Ry. Co., 108 Minn. 100, 121 N. W. 392; Healy v. Hoy, 115 Minn. 321, 132 N. W. 208; La Pray v. Lavoris, 117 Minn. 152, 134 N. W. 313; Murphy v. Twin City Taxicab Co., 122 Minn. 363, 142 N. W. 716. And the latter result likewise follows where more than one possible cause is shown, any one of which might have produced the harm, but there are no circumstances pointing to the one which would involve liability on defendant's part |