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law. The appraiser found that at the time of testator's death he was the owner of 100 shares of stock, par value, of the Memphis Trust Company, and also owned 100 shares of stock in the National Bank of Commerce, also at par value. The value of all this stock was assessed by the appraiser at $34,000. The appraiser was asked the following question: "Question 4. In answer to question 2 you say that the Tennessee property of this estate amounted to $34,000, and in answer to question 3 you say you only appraised for taxation $17,000, or rather you only found $17,000 subject to taxation. Explain why you only found this amount subject to taxation, and not the whole $34,000. Ans. The $34,000 referred to in question 2 was the total valuation of the Tennessee property belonging to this estate, and by the terms of the will of Bem Price one-half of this property went to his wife, namely $17,000. Under the collateral inheritance tax law any property left to or inherited by the wife of the deceased from the deceased's estate is not subject to collateral inheritance tax. Now, by the will of Bem Price, one-half his property went to his wife, and he did not designate any particular parts of the property to go to her, and as he gave no election of the kind she was to have, I assume she, of course, took one-half of this $34,000 worth in Tennessee property; consequently only the half left to collaterals was subject to taxation, and I therefore only appraised half for taxation, and so reported."

The circuit judge, who heard the cause without the intervention of a jury, found that Bem Price, resident of the state of Mississippi, died, leaving an estate in Tennessee, which, from report of appraiser, appeared to be of value of $34,000, "and it appearing that under the will of said Bem Price one-half of his entire estate (exclusive of specific bequests and legacies to his wife) was devised and bequeathed to his wife, Mary D. Price, and the other one-half to said collateral relatives and strangers in blood mentioned in said will, it is therefore adjudged by the court that said estate pay a collateral inheritance tax of 5 per cent. on one-half of the valuation of said estate, or $17,000, amounting to the sum of $850, together with fee of $127.50 to W. B. Eldridge, attorney for R. A. Speed, together with the costs of this cause." The court declined to allow exemption of $12,739 on the debts due by the estate of Bem Price in the state of Tennessee, though the court recites the fact that such debts existed and were Tennessee debts. The court further found that the setting apart to Mary D. Price, wife of testator, of the stock in the Bank of Commerce, did not exempt said stock, or any part thereof, from liability for the collateral inheritance tax. The Memphis Trust Company, as executor, appealed from this decree, and has assigned the following errors: (1) The court erred in estimating the stock in the National Bank of

Commerce which had been set apart to Mrs. Mary D. Price, widow of testator, as a basis upon which collateral inheritance tax, or any part thereof, could be assessed. (2) The court erred in refusing to consider the indebtedness of $12,539, due by Bem Price to Tennessee creditors, in estimating the collateral inheritance tax due on his estate or any part thereof.

In support of the first assignment of error counsel for the Memphis Trust Company propounds the proposition that there can be no claim for collateral inheritance tax upon the stock in the Bank of Commerce, because that has been selected by, and has become the property of, the widow, and under the provision of the collateral inheritance tax law of 1893 property inherited by or bequeathed to the widow is exempt.

It is undoubtedly true that under the act of 1893 property passing to the widow from the testator is not subject to collateral inheritance tax, for the plain reason that the widow is exempt from its provisions. But the contention is that the widow had no right to elect under the will and its codicils to take any particular portion of decedent's property after the payment of specific legacies and devises. As already seen, testator made specific bequests to his wife, and then a general bequest of one-half of the residuary property. The argument is that, if the testator had intended that his widow should have the right to make selection of one-half of the remainder of his property, he would have so directed in his will. This intention, it is claimed, is excluded by the specific bequests and the general bequest of one-half of the remainder of the estate. It is further insisted that the fact that the executor permitted the widow to take the National Bank of Commerce stock as her share of the residuary estate did not bind the estate, or relieve the executor of the payment of collateral inheritance tax on this stock. The argument seems to be based upon the following language in the act of 1893, namely: "And all owners of such estates and all executors and administrators, and their sureties, shall only be discharged from liability for the amount of such taxes and duty, the settlement of which they may be charged with, by having paid the same over for the use of the State as hereinafter directed." Shannon's Code, § 724; section 1, c. 174, p. 347, Acts 1893. Counsel then cites section 10, c. 174, p. 350, Act 1893, which provides as follows: "Whenever any foreign executor or administrator or trustee shall assign or transfer any stock, or loans in this state standing in the name of decedent, such tax shall be paid, on transfer thereof, to the clerk of the county court where such transfer is made; otherwise the corporation or person permitting such transfer shall become liable to pay such tax." Shannon's Code, § 735. It is therefore the contention of the state that, as Bem Price left property in the state of Tennessee, con

sisting of 100 shares of stock in the National Bank of Commerce, and 100 shares of stock in the Memphis Trust Company, it was the duty of the executor, when the National Bank of Commerce stock was turned over to Mrs. Mary D. Price, widow, to pay to the county court clerk collateral inheritance tax based upon the value of one-half of said stock, as under the will only one-half of said stock could go to the widow, and this property was clearly divisible in kind. It is further argued that the widow could make no selection of property she wished to take, nor could the executor assent to allotment of such specific property so chosen. Act 1893, p. 347, c. 174, § 1, and Act 1893, p. 146, c. 89, § 7, provides as follows: "All estates— real, personal and mixed, of every kind whatsoever, situated within this state, whether the person or persons dying seized thereof be domiciled within or out of this state, passing from any person who may die seized or possessed of such estates, either by will or under the intestate laws of this state, or any part of such estate or estates or interest therein transferred by deed, grant, bargain, gift or sale, made in contemplation of death, or intended to take effect in possession or enjoyment after the death of the grantor or bargainor to any person or persons, or to bodies corporate or politic, in trust or otherwise, other than to or for the use of the father, mother, brother, sister, the wife or widow of a son, or husband of a daughter, or any child or children adopted as such in conformity with the laws of the State of Tennessee, husband, wife, children, and lineal descendants born in lawful wedlock of the person dying seized and possessed thereof, shall be subject to a duty or tax of five dollars on every hundred dollars of the clear value of such estate or estates so passing, and at and after the same rate for any less amount, to be paid to the use of the state," etc. So it is very clear, and counsel concede the proposition, that no property passing to the widow under the provisions of this act is subject to the payment of collateral inheritance tax; but the main contention of counsel for the state is that under the residuary clause of this will the wife has no right to make a selection of specific property left in the residuary estate. This question arose in the Matter of James, 144 N. Y. 6, 38 N. E. 961. In that case the question arose on a construction of the collateral inheritance tax law of New York, which is substantially similar to the Tennessee act of 1893. The facts were that at the time of his death in Africa testator was a citizen of the Kingdom of Great Britain, and was domiciled there. By his last will, which he had made at the place of his domicile, he disposed of a very large estate. He left property in Great Britain, which was valued at $447,630, and property in this country, which was valued at $2,303,472.53. He gave legacies to collateral relatives and charities, which in the aggregate

amounted to $236,810. The residue of his estate was given to his executors, upon trust for the benefit of his two brothers. The charitable bequests were to foreign corporations, and persons to whom legacies were given were residents of Great Britain, with the exception of two, who resided in this country. He left no debts here. His will was proven in England in June, 1890, and afterwards, as a result of an action brought in the courts of this state (New York) by the executors, was established here, and letters testamentary were issued thereon to John Arthur Jones, one of the executors named, and also a resident of Great Britain. He applied to the surrogate of the county of New York for the appointment of an appraiser for the purpose of appraisement under the laws of this state imposing a tax upon gifts, legacies, and collateral inheritances. It appeared that by the will the legacies were to be paid within three months of testator's death free of duty; that a portion of the amount given as legacies had already been paid in Great Britain out of the estate there, together with the duties imposed on legacies by the law of that country, and that the property in this country consisted, among other things, in stocks and bonds of corporations of this and other states, which securities were deposited in this state at the time of testator's death.

ers.

On these facts the Court of Appeals of New York, in the midst of its opinion, said: "In the present case the property which testator died possessed of in Great Britain is largely in excess of the amount given by him in legacies. Some portion of that has already been paid from the English estate, and the executor has declared his determination of appropriating that part of testator's property to their payment, so that the American estate shall constitute the residuary estate disposed of by the will in favor of the testator's brothThis he may rightly do, and thus save the estate from the payment of the succession taxes imposed by our laws. The fact of such an appropriation will, of course, appear upon his accounting. If the executor determines to pay the legacies from the English estate, the American estate is thereby freed from the burden of the special taxes, the imposition of which depends upon the fact of a succession by the legatee to some property which is within the state. If the American estate is appropriated to persons who are within the exempted degrees of relationship to testator, the right to claim the tax from executor is gone. It does not lie with the officers of the state to say in such a case which part of testator's property shall be appropriated to the payment of the legacies. The law is not arbitrary in its application. It is simply absolute in its requirements, when the precise case arises which it was framed to meet; and where, as here, the case is not presented of an appropriation of any part of the American estate in payment of legacies to foreign leg

atees, this special tax law can not and should not apply."

It will be seen from the excerpt of the opinion that the New York case bears a striking analogy in some of its essential features to the case now under consideration. The reasoning of the court commends itself to our judgment, and without further elaboration we hold that the executor of the estate of Bem Price had a right, upon the election of the widow, to transfer to her the stock in the National Bank of Commerce in payment of her one-half interest in the residuary estate; provided, of course, it was taken at a fair valuation as compared with the balance of the residuary estate wherever situated. The stock in the Memphis Trust Company, amounting to $14,000, which, under the will, goes to collateral kindred and strangers in blood, is clearly subject to the tax.

The second assignment is that the court should have allowed, as against any collateral tax imposed on the stock in the Memphis Trust Company, and valued by the appraiser at $14,000, the indebtedness of $12,539 due creditors in the state of Tennessee. It is well to understand in the first place whether there are any debts outstanding in this state which are due from the estate of Bem Price, and the character of that indebtedness. We find this matter explained in the deposition of Mr. John H. Watkins, vice president of the Memphis Trust Company, as follows: "Q. State what debts, if any, were due by the estate of Bem Price to creditors in the state of Tennessee. Ans. At the time of the death of Bem Price he was indebted to the National Bank of Commerce in the sum of about $7,539. He also owed the National Bank of Commerce the sum of $5,000. This last item was two-thirds of a debt of $7,500 due by the firm of Price & Price, of which he was a member, and in which he had an interest of two-thirds, being responsible, of course, for two-thirds of its debts. These debts have been paid off, and the estate of Bem Price now owes no debts to creditors in Tennessee." Again, the witness was asked: "Did the general estate of Price pay the firm debts, or were they paid out of his individual estate? Ans. The firm of Price & Price was solvent, and it paid the indebtedness of $7,500 to the Bank of Commerce, of which amount $5,000 was owned by Bem Price. The individual estate of Bem Price did not pay this $7,500.”

Again, the witness was asked: "What relationship did this Tennessee debt of $12,539.00 bear to his entire indebtedness? Ans. About 50 per cent. Q. For this debt did the Bank of Commerce have any security? If so, what was it? Was it exhausted before other property was used in paying these two debts? Ans. The indebtedness of Price & Price to the

Bank of Commerce, amounting to $7,500, was secured to the Bank of Commerce by 80 shares of stock in the Bank of Oxford, belonging to Bem Price, which was deposited as collateral. None of this security was used or exhausted in paying the debt."

Again, this witness was asked: "What per cent. or part of this whole estate were the Bank of Commerce stock and the Memphis Trust Company stock? Ans. 121⁄2 per cent., or one-eighth."

It may be conceded as sound law that debts must be deducted from the aggregate value of the estate before it can be ascertained what amount is subject to the inheritance tax. Callahan v. Woodbridge, 171 Mass. 595, 51 N. E. 176; Matter of King, 172 N. Y. 616, 64 N. E. 1122. The Tennessee act of 1893, already quoted supra, provides that the tax should be levied on the clear value of the estate so passing.

It is the net value of the share of the estate inherited by or devised to the collateral kindred that is subject to the tax. In the present case one of the debts due Tennessee creditors was an individual debt of the testator, and the other an indebtedness of a partnership wherein he owned a two-thirds interest. Both debts have been paid, and were paid before the institution of the tax proceedings herein. It does not appear that the individual debt was discharged with Tennessee assets, and we have no concern with the partnership debt, since that was discharged with firm assets. We infer that the individual indebtedness of Bem Price to the National Bank of Commerce for $7,539 was paid with Mississippi assets, since the appraiser found that the entire value of the estate in Tennessee was $34,000, and that amount still remained intact for distribution when the appraisement was made.

In addition to this, if the executor sought to deduct debts due Tennessee creditors from the shares of the estate passing to the collateral kindred, it was incumbent on it to show they were discharged with Tennessee assets. This fact does not appear in the record. We concur with the circuit judge in disallowing these debts as credits on the stock of the Memphis Trust Company appraised for taxation at $14,000. We nonconcur with the circuit judge in his holding that the setting apart of the stock in the Bank of Commerce to the widow did not exempt said stock, or any part thereof, from liability for the collateral inheritance tax. We hold that the part of said stock so set apart to the widow is exempt from said tax. We think the fee allowed the attorney for the county court clerk was altogether proper and reasonable.

For the reasons stated herein, the judgment of the circuit court is affirmed.

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Where plaintiff sent a telegram to a relative, asking that money be wired for the transportation of the body of her dead son, and, though the addressees of the message resided 316 miles in the country from destination of the message, plaintiff did not inform the sending agent of such fact, nor arrange for immediate delivery at the addressees' residence, the telegraph company, on receiving the message after hours, when it had no messengers available to deliver it, was not guilty of negligence in failing to deliver the message until the next day.

[Ed. Note. For cases in point, see vol, 45, Cent. Dig. Telegraphs and Telephones, § 33.]

Error to Circuit Court, Gibson County; Levi S. Woods, Judge.

Action by Jennie McCaul, by next friend, against the Western Union Telegraph Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

W. W. Powers and Harwood & Wade, for plaintiff in error. Deason, Rankin & Elder and Shields, Cates & Mountcastle, for defendant in error.

BEARD, C. J. The plaintiff in error. a married woman, living in Gibson county, Tenn., was notified by telegram from Sikeston, Mo., where her young son was visiting, that he had been accidentally wounded. On the receipt of this intelligence she left for that place, reaching the bedside of her son on the 17th of November, 1903. The day after her arrival, he died. Desiring to take his body back to her home for interment, but lacking the means to do so, after his death she prepared and caused to be delivered to the operator of the Western Union Telegraph Company at Sikeston, for transmission to Trenton, Tenn., the following message:

"11-18-1903. Dated--Sikeston, Missouri— 18, To Mrs. M. C. McCaul, c/o Hugh McCaul, Trenton, Tennessee. Have bank wire bank of Sikeston $50.00, my son Hugh dead here. [Signed] Jennie McCaul."

On delivering this telegram to the operator at Sikeston, there was paid to him the regular tariff rate of 25 cents for its transmission to Trenton, to which place it was at once started over the wires of the defendant company, reaching there about 7:10 o'clock of the evening of the 18th. When received, as there was no messenger service from 7 p. m. to 7 a. m., the telegram was put on file, by the operator receiving it, to be sent out the following morning.

At the hour of 7 a. m. of the 19th, a messenger came to the office, and he was at once given the message, with direction that he take it out for delivery to the sendees, if they, or either of them, could be found in the town of Trenton. Not finding either of the parties, it was returned to the office, and in the afternoon was sent by special hand to

the home of the sendees, which was 31⁄2 miles in the country, and was delivered there at 4 p. m.

Mrs. McCaul, the sender of this message, knew the sendees lived at that distance from Trenton, but she failed to communicate the fact to the operator at Sikeston, and also failed either to pay, or guaranty payment, for the extra service required in its delivery to the home of the sendees.

The record shows that while this telegram was thus delivered after the banking hours observed in Trenton, yet, if application had been made to the officers of the bank, with which Mrs. McCaul did business, either by evening of the 19th, that they would have herself or Mr. Hugh McCaul, during the immediately wired the sum asked for to the bank in Sikeston. No application, however, was made to these officers until the following day, when the money was at once transmitted, reaching Sikeston, however, too late to answer the purpose of the sender of the message. It was then found the body of young McCaul was so far advanced in decay that it would be dangerous to undertake to carry it to Gibson county, so it was buried at or near Sikeston,

Upon these facts the trial judge said to the jury, in substance, that the obligation of the defendant in error was to transmit and attempt to deliver, without unreasonable delay, this message to the sendees, or one of them, at Trenton; that there was no obligation resting on the company to send it out to the home of the sendees, 31⁄2 miles in the country; and, if they found that diligence was used in an effort to deliver at Trenton, then they should find for the defendant.

We think this instruction was correct. The money which was paid by the sender at Sikeston was for the service of transmission and delivery at Trenton. If it should be held, in the absence of all knowledge on the part of the operator at Sikeston that the sendees lived 3%1⁄2 miles from the place to which it was directed, the company was to be held liable for lack of prompt delivery at the residence of the sendees, then it might be so equally held, if it had happened that these sendees resided 10 miles, or even a greater distance, from there. Such a holding would impose an unreasonable burden on the company, especially in view of the fact that the telegram on its face, as we think, implied that the sendees, one or both, were to be found in Trenton.

It is an easy matter for the sender to provide for the delivery of his telegram, whatever may be the distance of the sendee from the point to which it is directed. All that he has to do is to notify the receiving operator, when delivering the telegram for transmission, that the sendee lives at a place other than the one to which it is directed. If received for transmission unconditionally by one authorized so to do after such notice, the law will imply an obligation upon the part

of the company to deliver the message at the place of the sendee's residence, or if, at the time of such receipt, payment is made or guarantied for such delivery, in either case a failure to deliver within a reasonable time would be a breach of duty on the part of the company, for which it would be liable. But when it appears, as in this case, that the receiving operator had no such notice, and charges were neither paid nor guarantied for delivering the message at the residence of the sendees, living, as they did, at a point remote from Trenton, the company was under no legal obligation to deliver it at that point. Western Union Co. v. Harvey (Kan.) 74 Pac. 250; Western Union Tel. Co. v. Swearingen (Tex. Sup.) 67 S. W. 767.

We think the charge of the trial judge correctly stated the rule of law controlling in this case, and without more his judgment is affirmed.

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Where certain passengers boarded defendant's train, and, while under the influence of liquor, exploded dynamite sticks in the car, and on the platforms, and fired pistols, but the carrier's servants, though knowing or having an opportunity to know of such acts, neglected to take proper precautions to prevent injury to others until plaintiff, another passenger, was shot by the alleged accidental discharge of one of such weapons, the carrier was liable for the injury so sustained.

Error to Circuit Court, Henderson County; Levi S. Woods, Judge.

Action by James Flake, by his next friend, against the Nashville, Chattanooga & St. Louis Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed.

T. A. Lancaster, for plaintiff in error. Barham & Davis and M. F. Ozier, for defendant in error.

BEARD, C. J. A boy 13 years of age, while riding on one of the passenger trains of the plaintiff in error on the afternoon of the 24th of December, 1903, while en route from Huron, a small station on the line of the railway, to Lexington, in this state, was shot. He was wounded by a pistol fired by a party whose name was unknown, and this suit was brought to recover damages for the injury thus received, upon the theory that the conditions existing upon that train, which either were known or should have been known to those in charge, were such as to have caused them reasonably to anticipate this result, and, failing to exercise property diligence, the plaintiff in error was liable. There was a verdict and judgment in favor of the plaintiff, and the case has

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The record shows that at Jackson, Tenn., the train in question was boarded by a number of persons then under the influence of strong drink. These parties carried upon the cars bottles of liquor, from which they freely drank as the train proceeded. They were boisterous in manner and speech, and by their conduct attracted the attention and gave considerable alarm to other passengers. They had possession of dynamite sticks, on which they placed caps. These, on being struck upon the floor, exploded. These explosions were as loud as pistol shots. While 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 the coach, in which he was sitting at the time he received his wound, at Huron. took his seat just back of the water cooler, with his face fronting in the direction the train was moving. This coach was immediately in the rear of the smoking car. In it were crowded many passengers, filling all the seats and occupying the aisle. The parties who have been referred to as boisterous, or at least some of them, came occasionally into this coach, elbowing their way down the aisle, and, after remaining for a few minutes, would retrace their steps, and on passing out they either stopped upon the platform or else would enter the smoking car. The passengers in this coach observed that they were under the influence of liquor. Loud and boisterous talking in the smoking car was heard. Much firing was done on the platform between the coach and the smoking car. This firing began soon after the train left Jackson, and continued at intervals until this boy was shot. Unquestionably, some of the explosions which occurred on this platform came from the use of dynamite sticks, but some were from the use of pistols in the hands of some of these parties. One of them made an effort to have a witness, whose testimony is in the record, shoot a negro, who, at one of the stations along the line of the road, rode for a short distance upon the steps of this smoking car while engaged talking to a friend on the platform, offering him a pistol for that purpose. The witness, however, declined the offer. Immediately after the firing of the shot that wounded young Flake, one of these rowdies, with a pistol in his hand, went out of the coach to the platform, and stated that his weapon had accidentally been discharged, and he had wounded a boy.

The employés in charge of the train testify that they saw no one with pistols, and heard no firing. They say that there were crows

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