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law. The appraiser found that at the time Commerce which had been set apart to Mrs. of testator's death he was the owner of 100 Mary D. Price, widow of testator, as a basis shares of stock, par value, of the Memphis upon which collateral inheritance tax, or any Trust Company, and also owned 100 shares part thereof, could be assessed. (2) The of stock in the National Bank of Commerce, court erred in refusing to consider the inalso at par value. The value of all this debtedness of $12,539, due by Bem Price to stock was assessed by the appraiser at $34,- Tennessee creditors, in estimating the col. 000. The appraiser was asked the following lateral inheritance tax due on his estate or question: "Question 4. In answer to ques- any part thereof. tion 2 you say that the Tennessee property of In support of the first assignment of error this estate amounted to $34,000, and in an- counsel for the Memphis Trust Company swer to question 3 you say you only apprais- | propounds the proposition that there can be ed for taxation $17,000, or rather you only no claim for collateral inheritance tax upon found $17,000 subject to taxation. Explain the stock in the Bank of Commerce, because why you only found this amount subject to that has been selected by, and has become taxation, and not the whole $34,000. Ans. the property of, the widow, and under the The $34,000 referred to in question 2 was the provision of the collateral inheritance tax total valuation of the Tennessee property be- law of 1893 property inherited by or belonging to this estate, and by the terms of queathed to the widow is exempt. the will of Bem Price one-half of this prop- It is undoubtedly true that under the act erty went to his wife, namely $17,000. Un- of 1893 property passing to the widow from der the collateral inheritance tax law any the testator is not subject to collateral inproperty left to or inherited by the wife of heritance tax, for the plain reason that the the deceased from the deceased's estate is widow is exempt from its provisions. But not subject to collateral inheritance tax. the contention is that the widow had no Now, by the will of Bem Price, one-balf his right to elect under the will and its codicils property went to his wife, and he did not

to take any particular portion of decedent's designate any particular parts of the prop- property after the payment of specific legerty to go to her, and as he gave no election acies and devises. As already seen, testaof the kind she was to have, I assume she, tor made specific bequests to his wife, and of course, took one-half of this $34,000 worth

then a general bequest of one-half of the in Tennessee property; consequently only the residuary property. The argument is that, half left to collaterals was subject to taxa- if the testator had intended that his widow tion, and I therefore only appraised half for should have the right to make selection of taxation, and so reported."

one-half of the remainder of his property, he The circuit judge, who heard the cause would have so directed in his will. This inwithout the intervention of a jury, found

tention, it is claimed, is excluded by the that Bem Price, resident of the state of Mis

specific bequests and the general bequest of sissippi, died, leaving an estate in Tennessee, one-half of the remainder of the estate. It which, from report of appraiser, appeared to is further insisted that the fact that the exbe of value of $34,000, "and it appearing that

ecutor permitted the widow to take the Naunder the will of said Bem Price one-half of

tional Bank of Commerce stock as her share his entire estate (exclusive of specific be

of the residuary estate did not bind the esquests and legacies to his wife) was devised tate, or relieve the executor of the payment and bequeathed to his wife, Mary D. Price, of collateral inheritance tax on this stock. and the other one-half to said collateral rel- The argument seems to be based upon the atives and strangers in blood mentioned in

following language in the act of 1893, namesaid will, it is therefore adjudged by the ly: “And all owners of such estates and all court that said estate pay a collateral in- executors and administrators, and their sureheritance tax of 5 per cent. on one-half of ties, shall only be discharged from liability the valuation of said estate, or $17,000, for the amount of such taxes and duty, the amounting to the sum of $850, together with settlement of which they may be charged with, fee of $127.50 to W. B. Eldridge, attorney for by having paid the same over for the use of R. A. Speed, together with the costs of this

the State as hereinafter directed.” Shannon's cause." The court declined to allow exemp- Code, 8 724; section 1, c. 174, p. 347, Acts 1893. tion of $12,739 on the debts due by the es- Counsel then cites section 10, c. 174, p. 350, tate of Bem Price in the state of Tennessee, Act 1893, which provides as follows: "Whenthough the court recites the fact that such ever any foreign executor or administrator debts existed and were Tennessee debts. The or trustee shall assign or transfer any stock, court further found that the setting apart to or loans in this state standing in the name of Mary D. Price, wife of testator, of the stock decedent, such tax shall be paid, on transfer in the Bank of Commerce, did not exempt thereof, to the clerk of the county court said stock, or any part thereof, from liability where such transfer is made; otherwise the for the collateral inheritance tax. The Mem- corporation or person permitting such transphis Trust Company, as executor, appealed fer shall become liable to pay such tax.” from this decree, and has assigned the fol- Shannon's Code, & 735. It is therefore the lowing errors: (1) The court erred in esti- contention of the state that, as Bem Price mating the stock in the National Bank of left property in the state of Tennessee, con

sisting of 100 shares of stock in the National amounted to $236,810. The residue of his Bank of Commerce, and 100 shares of stock estate was given to his executors, upon trust in the Memphis Trust Company, it was the for the benefit of his two brothers. The duty of the executor, when the National charitable bequests were to foreign corporBank of Commerce stock was turned over to ations, and persons to whom legacies were Mrs. Mary D. Price, widow, to pay to the given were residents of Great Britain, with county court clerk collateral inheritance tax the exception of two, who resided in this based upon the value of one-half of said country. He left no debts here. His will stock, as under the will only one-half of said was proven in England in June, 1890, and stock could go to the widow, and this prop- afterwards, as a result of an action brought erty was clearly divisible in kind. It is in the courts of this state (New York) by further argued that the widow could make the executors, was established here, and letno selection of property she wished to take, ters testamentary were issued thereon to nor could the executor assent to allotment of John Arthur Jones, one of the executors such specific property so chosen. Act 1893, named, and also a resident of Great Britain. p. 317, c. 174, § 1, and Act 1893, p. 146, C. He applied to the surrogate of the county of 89, § 7, provides as follows: "All estates- New York for the appointment of an appraisreal, personal and mixed, of every kind er for the purpose of appraisement under the whatsoever, situated within this state, laws of this state imposing a tax upon gifts, whether the person or persons dying seized legacies, and collateral inheritances. It apthereof be domiciled within or out of this peared that by the will the legacies were to state, passing from any person who may die be paid within three months of testator's seized or possessed of such estates, either by death free of duty; that a portion of the will or under the intestate laws of this state, amount given as legacies had already been or any part of such estate or estates or in- paid in Great Britain out of the estate there, terest therein transferred by deed, grant, together with the duties imposed on legacies bargain, gift or sale, made in contemplation by the law of that country, and that the of death, or intended to take effect in posses- property in this country consisted, among sion or enjoyment after the death of the other things, in stocks and bonds of corporgrantor or bargainor to any person or per- ations of this and other states, which securisons, or to bodies corporate or politic, in ties were deposited in this state at the time trust or otherwise, other than to or for the of testator's death. use of the father, mother, brother, sister, the On these facts the Court of Appeals of New wife or widow of a son, or husband of a York, in the midst of its opinion, said: "In daughter, or any child or children adopted the present case the property which testator as such in conformity with the laws of the died possessed of in Great Britain is largely State of Tennessee, husband, wife, children, in excess of the amount given by him in leg. and lineal descendants born in lawful wed- acies. Some portion of that has already been lock of the person dying seized and possessed paid from the English estate, and the executhereof, shall be subject to a duty or tax of tor has declared his determination of approfive dollars on every hundred dollars of the priating that part of testator's property to clear value of such estate or estates so pass- their payment, so that the American estate ing, and at and after the same rate for any shall constitute the residuary estate disposed less amount, to be paid to the use of the state," of by the will in favor of the testator's brothetc. So it is very clear, and counsel concede This he may rightly do, and thus save the proposition, that no property passing to the estate from the payment of the succession the widow under the provisions of this act is taxes imposed by our laws. The fact of such subject to the payment of collateral inheri- an appropriation will, of course, appear upon tance tax; but the main contention of coun- his accounting. If the executor determines sel for the state is that under the residuary to pay the legacies from the English estate, clause of this will the wife has no right to the American estate is thereby freed from make a selection of specific property left in the burden of the special taxes, the imposithe residuary estate. This question arose in tion of which depends upon the fact of a sucthe Matter of James, 144 N. Y. 6, 38 N. E. cession by the legatee to some property which 961. In that case the question arose on a is within the state. If the American estate construction of the collateral inheritance tax is appropriated to persons who are within the law of New York, which is substantially sim- exempted degrees of relationship to testator, ilar to the Tennessee act of 1893. The facts the right to claim the tax from executor is were that at the time of his death in Africa gone. It does not lie with the officers of the testator was a citizen of the Kingdom of state to say in such a case which part of tesGreat Britain, and was domiciled there. By tator's property shall be appropriated to the his last will, which he had made at the place payment of the legacies. The law is not arof his domicile, he disposed of a very large bitrary in its application. It is simply absoestate. He left property in Great Britain, lute in its requirements, when the precise which was valued at $147,630, and property case arises which it was framed to meet; and in this country, which was valued at $2,303,- where, as here, the case is not presented of 472.53. He gave legacies to collateral rela- an appropriation of any part of the American tives and charities, which in the aggregate estate in payment of legacies to foreign legatees, this special tax law can not and should Bank of Commerce, amounting to $7,500, was not apply.”

ers.

secured to the Bank of Commerce by 80 It will be seen from the excerpt of the opin- shares of stock in the Bank of Oxford, belong. ion that the New York case bears a striking ing to Bem Price, which was deposited as colanalogy in some of its essential features to lateral. None of this security was used or the case now under consideration. The rea- exhausted in paying the debt." soning of the court commends itself to our Again, this witness was asked: "What per judgment, and without further elaboration cent. or part of this whole estate were the we hold that the executor of the estate of Bank of Commerce stock and the Memphis Bem Price had a right, upon the election of Trust Company stock? Ans. 1244 per cent., the widow, to transfer to her the stock in or one-eighth." the National Bank of Commerce in payment It may be conceded as sound law that debts of her one-half interest in the residuary es- must be deducted from the aggregate value tate; provided, of course, it was taken at a of the estate before it can be ascertained fair valuation as compared with the balance what amount is subject to the inheritance tax. of the residuary estate wherever situated. Callahan v. Woodbridge, 171 Mass. 595, 51 N. The stock in the Memphis Trust Company, E. 176; Matter of King, 172 N. Y. 616, 64 N. amounting to $14,000, which, under the will, E. 1122. The Tennessee act of 1893, already goes to collateral kindred and strangers in quoted supra, provides that the tax should blood, is clearly subject to the tax.

be levied on the clear value of the estate so The second assignment is that the court passing. should have allowed, as against any collat- It is the net value of the share of the estate eral tax imposed on the stock in the Memphis inherited by or devised to the collateral kinTrust Company, and valued by the appraiser dred that is subject to the tax. In the presat $14,000, the indebtedness of $12,539 due ent case one of the debts due Tennessee credcreditors in the state of Tennessee. It is well itors was an individual debt of the testator, to understand in the first place whether there and the other an indebtedness of a partnerare any debts outstanding in this state which ship wherein he owned a two-thirds interest. are due from the estate of Bem Price, and Both debts have been paid, and were paid the character of that indebtedness. We find before the institution of the tax proceedings this matter explained in the deposition of herein. It does not appear that the individMr. John H. Watkins, vice president of the ual debt was discharged with Tennessee asMemphis Trust Company, as follows: "Q. sets, and we have no concern with the partState what debts, if any, were due by the es- nersbip debt, since that was discharged with tate of Bem Price to creditors in the state of firm assets. We infer that the individual in'Tennessee. Ans. At the time of the death of debtedness of Bem Price to the National Bem Price he was indebted to the National Bank of Commerce for $7,539 was paid with Bank of Commerce in the sum of about $7,- Mississippi assets, since the appraiser found 539. He also owed the National Bank of that the entire value of the estate in TennesCommerce the sum of $5,000. This last item see was $34,000, and that amount still rewas two-thirds of a debt of $7,500 due by the mained intact for distribution when the apfirm of Price & Price, of which he was a praisement was made. member, and in which he had an interest of In addition to this, if the executor sought two-thirds, being responsible, of course, for to deduct debts due Tennessee creditors from two-thirds of its debts. These debts have the shares of the estate passing to the collatbeen paid off, and the estate of Bem Price eral kindred, it was incumbent on it to show now owes no debts to creditors in Tennessee." they were discharged with Tennessee assets. Again, the witness was asked: "Did the gen- This fact does not appear in the record. We eral estate of Price pay the firm debts, or concur with the circuit judge in disallowing were they paid out of his individual estate? these debts as credits on the stock of the Ans. The firm of Price & Price was solvent, Memphis Trust Company appraised for taxand it paid the indebtedness of $7,500 to the ation at $14,000. We nonconcur with the cirBank of Commerce, of which amount $5,000 cuit judge in his holding that the setting was owned by Bem Price. The individual apart of the stock in the Bank of Commerce estate of Bem Price did not pay this $7,500." to the widow did not exempt said stock, or

Again, the witness was asked: "What rela- any part thereof, from liability for the coltionship did this Tennessee debt of $12,539.00 lateral inheritance tax. We hold that the bear to his entire indebtedness? Ans. About part of said stock so set apart to the widow 50 per cent. Q. For this debt did the Bank is exempt from said tax. We think the fee of Commerce have any security? If so, what allowed the attorney for the county court was it? Was it exhausted before other prop- clerk was altogether proper and reasonable. erty was used in paying these two debts? For the reasons stated herein, the judg. Ans. The indebtedness of Price & Price to the ment of the circuit court is affirmed.

the home of the sendees, which was 31 miles McCAUL V. WESTERN UNION TELE- in the country, and was delivered there at GRAPH CO.

4 p. m. (Supreme Court of Tennessee. June 18, 1905.) Mrs. McCaul, the sender of this message, TELEGRAPHIS MESSAGES DELIVERY DE

knew the sendees lived at that distance from LAY-NEGLIGENCE.

Trenton, but she failed to communicate the Where plaintiff sent a telegram to a rela- fact to the operator at Sikeston, and also tive, asking that money be wired for the transportation of the body of her dead son, and,

failed either to pay, or guaranty payment, though the addressees of the message resided

for the extra service required in its deliv3.5 miles in the country from destination of the ery to the home of the sendees. message, plaintiff did not inform the sending

The record shows that while this telegram agent of such fact, nor arrange for immediate delivery at the addressees' residence, the tele

was thus delivered after the banking hours graph company, on receiving the message after observed in Trenton, yet, if application had hours, when it had no messengers available to been made to the officers of the bank, with deliver it, was not guilty of negligence in fail

which Mrs. McCaul did business, either by ing to deliver the message until the next day.

[Ed. Note.–For cases in point, see vol. 45, herself or Mr. Hugh McCaul, during the Cent, Dig. Telegraphs and Telephones, $ 33.]

evening of the 19th, that they would have

immediately wired the sum asked for to the Error to Circuit Court, Gibson County;

bank in Sikeston. No application, however, Levi S. Woods, Judge.

was made to these officers until the followAction by Jennie McCaul, by next friend,

ing day, when the money was at once transagainst the Western Union Telegraph Com

mitted, reaching Sikeston, however, too late pany. From a judgment in favor of defend

to answer the purpose of the sender of the ant, plaintiff brings error. Affirmed.

message. It was then found the body of W. W. Powers and Harwood & Wade, for young McCaul was so far advanced in decay plaintiff in error. Deason, Rankin & Elder that it would be dangerous to undertake to and Shields, Cates & Mountcastle, for de- carry it to Gibson county, so it was buried fendant in error.

at or near Sikeston.

Upon these facts the trial judge said to BEARD, C. J. The plaintiff in error. a the jury, in substance, that the obligation of married woman, living in Gibson county, the defendant in error was to transmit and Tend., was notified by telegram from Sikes- attempt to deliver, without unreasonable deton, Mo., where her young son was visiting, lay, this message to the sendees, or one of that he had been accidentally wounded. On them, at Trenton; that there was no obligathe receipt of this intelligence she left for tion resting on the company to send it out that place, reaching the bedside of her son to the home of the sendees, 312 miles in the on the 17th of November, 1903. The day aft- country; and, if they found that diligence er her arrival, be died. Desiring to take his was used in an effort to deliver at Trenton, body back to her home for interment, but then they should find for the defendant. lacking the means to do so, after his death We think this instruction was correct. she prepared and caused to be delivered to the money which was paid by the sender the operator of the Western Union Tele- at Sikeston was for the service of transmisgraph Company at Sikeston, for transmission sion and delivery at Trenton. If it should to Trenton, Tenn., the following message: be held, in the absence of all knowledge on

“11-18–1903. Dated--Sikeston, Missouri- the part of the operator at Sikeston that the 18, To Mrs. M. C. McCaul, c/o Hugh McCaul, sendees lived 342 miles from the place to Trenton, Tennessee. Have bank wire bank which it was directed, the company was to be of Sikeston $50.00, my son Hugh dead here. held liable for lack of prompt delivery at the [Signed] Jennie McCaul."

residence of the sendees, then it might be so On delivering this telegram to the operator equally held, if it had happened that these at Sikeston, there was paid to him the reg- sendees resided 10 miles, or even a greater ular tariff rate of 25 cents for its transmis- distance, from there. Such a holding would sion to Trenton, to which place it was at impose an unreasonable burden on the comonce started over the wires of the defendant pany, especially in view of the fact that the company, reaching there about 7:10 o'clock telegram on its face, as we think, implied of the evening of the 18th. When received, that the sendees, one or both, were to be as there was no messenger service from 7 found in Trenton. P. m. to 7 a. m., the telegram was put on It is an easy matter for the sender to profile, by the operator receiving it, to be sent vide for the delivery of his telegram, whatout the following morning.

ever may be the distance of the sendee from At the hour of 7 a. m, of the 19th, a mes- the point to which it is directed. All that he senger came to the office, and he was at once has to do is to notify the receiving operator, given the message, with direction that he

when delivering the telegram for transmistake it out for delivery to the sendees, if sion, that the sendee lives at a place other they, or either of them, could be found in than the one to which it is directed. If rethe town of Trenton. Not finding either of ceived for transmission unconditionally by the parties, it was returned to the office, and one authorized so to do after such notice, the in the afternoon was sent by special hand to law will imply an obligation upon the part of the company to deliver the message at the been brought into this court for review. A place of the sendee's residence, or if, at the number of errors have been assigned, all of time of such receipt, payment is made or which save one are disposed of in a memoguarantied for such delivery, in either case randum opinion which is not intended for a failure to deliver within a reasonable time publication. The one not there embraced is would be a breach of duty on the part of the regarded as of sufficient importance for an company, for which it would be liable. But opinion to be carried into our Reports. when it appears, as in this case, that the The record shows that at Jackson, Tenn., receiving operator bad no such notice, and the train in question was boarded by a numcharges were neither paid nor guarantied for ber of persons then under the influence of delivering the message at the residence of strong drink. These parties carried upon the sendees, living, as they did, at a point the cars bottles of liquor, from which they remote from Trenton, the company was un- freely drank as the train proceeded. They der no legal obligation to deliver it at that were boisterous in manner and speech, and point. Western Union Co. v. Harvey (Kan.) by their conduct attracted the attention and 74 Pac. 230; Western Union Tel. Co, v. gave considerable alarm to other passengers. Swearingen (Tex. Sup.) 67 S. W. 767.

They had possession of dynamite sticks, on We think the charge of the trial judge cor- which they placed caps. These, on being rectly stated the rule of law controlling in struck upon the floor, exploded. These exthis case, and without more his judgment is | plosions were as loud as pistol shots. While affirmed.

one or more of these explosions took place in the coach in which the defendant in error was riding, the others were produced upon

the platform outside. Young Flake entered NASHVILLE, C. & ST. L. RY. ÇO. V. the coach, in which he was sitting at the FLAKE.

time he received his wound, at Huron. He (Supreme Court of Tennessee. June 18, 1905.) took his seat just back of the water cooler, CARRIERS-INJURIES TO PASSENGERS Mis

with his face fronting in the direction the CONDUCT OF THIRD PERSONS-NEGLIGENCE.

train was moving. This coach was immeWhere certain passengers boarded defend- diately in the rear of the smoking car. In it ant's train, and, while under the influence of

were crowded many passengers, filling all liquor, exploded dynamite sticks in the car, and on the platforms, and fired pistols, but the

the seats and occupying the aisle. The parcarrier's servants, though knowing or having

ties who have been referred to as boisterous, an opportunity to know of such acts, neglected or at least some of them, came occasionally to take proper precautions to prevent injury to into this coach, elbowing their way down others until plaintiff, another passenger, was shot by the alleged accidental discharge of one

the aisle, and, after remaining for a few of such weapons, the carrier was liable for minutes, would retrace their steps, and on the injury so sustained.

passing out they either stopped upon the Error to Circuit Court, Henderson County;

platform or else would enter the smoking car. Levi S. Woods, Judge.

The passengers in this coach observed that Action by James Flake, by his next friend,

they were under the influence of liquor. against the Nashville, Chattanooga & St.

Loud and boisterous talking in the smoking Louis Railway Company. From a judgment

car was heard. Yuch firing was done on the for plaintiff, defendant brings error. Al

platform between the coach and the smokfirmed.

ing car. This firing began soon after the

train left Jackson, and continued at interT. A. Lancaster, for plaintiff in error. vals until this boy was shot. UnquestionBarham & Davis and M. F. Ozier, for defend- ably, some of the explosions which occurred ant in error.

on this platform came from the use of dyna

mite sticks, but some were from the use of BEARD, C. J. A boy 13 years of age, pistols in the hands of some of these parties. while riding on one of the passenger trains

One of them made an effort to have a witof the plaintiff in error on the afternoon of ness, whose testimony is in the record, shoot the 24th of December, 1903, while en route a negro, who, at one of the stations along the from Huron, a small station on the line of the line of the road, rode for a short distance railway, to Lexington, in this state, was upon the steps of this smoking car while enshot. He was wounded by a pistol fired by gaged talking to a friend on the platform, a party whose name was unknown, and this offering him a pistol for that purpose. The suit was brought to recover damages for witness, however, declined the offer. Immedithe injury thus received, upon the theory ately after the firing of the shot that woundthat the conditions existing upon that train, ed young Flake, one of these rowdies, with a which either were known or should have pistol in his hand, went out of the coach to been known to those in charge, were such the platform, and stated that his weapon as to have caused them reasonably to an- had accidentally been discharged, and he had ticipate this result, and, failing to exercise wounded a boy. property diligence, the plaintiff in error was The employés in charge of the train testify liable. There was a verdict and judgment that they saw no one with pistols, and heard in favor of the plaintiff, and the case has no firing. They say that there were crows

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