Miller v. Connor. So, it must appear that a constitutional question was raised in the trial court and ruled on to the disadvantage of the party appealing. [State ex rel. v. Smith, supra; Bennett v. Railroad, 105 Mo. 1. c. 645; Parlin & Orendorff Co. v. Hord, 145 Mo. 1. c. 119; Hanlon v. Pulitzer Pub. Co., 167 Mo. 1. c. 123; Brown v. Railroad, 175 Mo. 1. c. 188; Shell v. Railroad, 202 Mo. 1. c. 344 et seq.] So, constitutional questions cannot be injected into a case for the first time in the appellate court by argument or brief of counsel for the purpose of giving jurisdiction. [Town of Kirkwood v. Johnson, 148 Mo. 1. c. 636-7, and cases cited.] So that if one for the first time faintly appears in respondent's brief, arguendo, it would not give us jurisdiction. So, a constitutional question must be raised timely in the course of orderly procedure. Accordingly it should be raised in the pleadings if due to be found there. If not, then at the first opportunity and kept alive. [Lohmeyer v. Cordage Co., 214 Mo. 1. c. 690, and cases cited.] So, to meet the justice of the case in exigencies, sometimes it may be raised on rulings on the admission of evidence, but in that event it self-evidently should be kept alive in the motion for new trial and (if necessary) in the instructions. So, in rare cases, under circumstances not material here, it may be raised for the first time in the motion for new trial or in the instructions. [Wabash Railroad Co. v. Flannigan, 218 Mo. 1. c. 569, et seq.; Hartzler v. Railroad, 218 Mo. 1. c. 564.] There are other rules, but the foregoing suffice for our purposes in this case. (2) Now, applying those established standards for testing out the question whether a construction of the Constitution is involved in a jurisdictional sense in this case, it is evident that on this record there is no such constitutional question lodged here. Miller v. Connor. Observe, it is not in pleadings, instructions or motions for a new trial. In those items of evidence we designated X, Y and Z the ruling below was in favor of appellants. Hence, if such question was ambushed there (which we do not rule) appellants cannot complain of the favorable ruling. To the item of evidence designated A, there were many objections. Finally there was an argument by counsel for defendant in which it was suggested that if the court admitted the Colorado decree as binding on her the effect would be to hold her without due process of law under specified sections of the Federal and State Constitution. But as there were many other reasons suggested for the exclusion of the decree, which one of them was operative on the mind of the trial court is entirely dark. It, therefore, cannot be held that a constitutional construction was essential to the determination of the case, or was ruled adversely to appellants. [City of Tarkio v. Loyd, 179 Mo. 1. c. 605.] Besides that (and singularly enough) appellants seem to be unaware of the infringement of any constitutional right; for they complained not in that behalf in their motion for a new trial, and do not contend in their brief they were denied any such right invoked by them at the trial. When learned counsel, with eyes sharpened by the affliction of defeat, cannot see a coign of vantage, is it not likely to be a will of the wisp or mare's nest? Under such circumstances we cannot very well hold that a constitutional question is involved on this appeal in a jurisdictional sense. Accordingly this case is retransferred to the St. Louis Court of Appeals where it belongs for deter mination. All concur. State ex rel. v. Packard. THE STATE ex rel. C. W. RICE. Collector, Appellant, v. C. E. PACKARD. Division One, May 31, 1913. 1. TAXES: Personal Liability of Executor: After Final Settlement. An executor who has given in for taxation an assessment list of the personal property of an estate in his hands and afterwards made final settlement of the estate without reserving funds with which to pay such taxes as may thereafter be levied upon such assessment list, is personally liable to the State for the taxes so levied. Where defendant, executor of one Rhodes, made out a list of personal property he was holding as such executor on June 1, 1905, he became liable for the taxes for the ensuing year of 1906; and if he made final settlement of his administration and distribution of said estate according to the order of the probate court in September, 1905, and was discharged, without holding back enough of the estate money to pay the taxes for 1906, he became personally liable for such taxes, and a suit may be brought and maintained against him by the collector. 2. 3. 4. : —— Liens. Personal taxes are assessed against the individual, and are not liens upon the property. : : Allowed by Probate Court. Taxes are not required to be allowed as a claim against the estate, as do other claims, by the probate court; but should be paid by the administrator or executor, and he be given credit therefor in his settlements. : Judgment of Probate Court as Bar. A judg ment of the probate court made in September, 1905, ordering the executor to "file the final receipts of said legatees and distributees for their said respective interests in said estate and 1905 taxes, and that on compliance herewith he be finally discharged as such executor," is no bar to a suit against the executor for the personal taxes of 1906, where the personal property of the estate in his hands as such executor on June 1, 1905, had been listed by him. At the time he made final settlement and was discharged he had in his own hands the means to pay the taxes of 1906, and it was not necessary that those taxes be allowed as a claim against the estate, and if he failed to protect himself by holding back enough money to pay them, it was his own fault, and the State should not be the loser for his neglect of duty. State ex rel. v. Packard. Appeal from Clinton Circuit Court.-Hon. A. D. Burnes, Judge. REVERSED (with directions). Erasmus C. Hall for appellant. The defendant gave the list on which the assessment was made, duly signed and sworn to by him, to the county assessor, on June 26, 1905. Defendant after that made his final settlement in September, 1905, long before the assessor's books could be made up or filed, and had in his hands a large amount in excess of what would have been sufficient to pay all costs of administration and these taxes. The assessment included all property in his hands on June 1, 1905, as required by law. R. S. 1899, sec. 9144; R. S. 1909, sec. 11355. Personal taxes assessed on and after June 1st, each year, constitute a debt for which a personal judgment may be recovered. R. S. 1899, sec. 9246. Every person owning or holding property on the first day of June shall be liable for taxes thereon for the ensuing year. R. S. 1899, sec. 9186; DeGiverville v. Legg, 48 Mo. App. 576. So that when the defendant gave the list to the assessor he became liable personally for the taxes thereon for the ensuing taxable year and is presumed to know the provision of the law in reference thereto. Knowing this, he should have retained from the estate a sufficient amount with which to pay taxes. Failing to do this, he is estopped to plead his final settlement as executor. State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson, 90 Mo. App. 50; Zegenhein v. Tittman, 103 Mo. 563; State ex rel. v. Tobacco Co., 140 Mo. 224; Davis v. Krum, 12 Mo. App. 288. Under the law it was impossible for the county officer to have presented a claim against the estate represented by the defendant at the September term, 1905. Besides that, the law does not require that such demand must be presented State ex rel. v. Packard. to the probate court, but requires the executor to pay such taxes. R. S. 1899, sec. 184. R. S. 1899, sec. 9144, authorizes the assessment and levy of taxes upon the property of estate against the executor or administrator in possession thereof, and it is his duty to list such property for taxation, the assessor's duty to assess it against the executor and the executor's duty to pay the tax, and on his failure to do so an action can be brought against the executor and a personal judgment rendered against him therefor. State ex rel. v. Burr, 143 Mo. 209; Woerner's Am. Law of Administration, pp. 1144 and 1151. The assessment in this case was properly made against C. E. Packard, executor of Rhodes' estate, and not against said estate only, as was suggested in State ex rel. v. Kenrick, 159 Mo. 631, and that case has no application here. The Kenrick case held that the executor was not liable personally where the assessment was against the estate only. In the case of State ex rel. v. Trust Co., 209 Mo. 493, the court holds that where the estate subject to taxation, and actually taxed, was in the hands of the executor, administrator or curator, as such, at the time the taxes were either assessed, levied or became due, and he had the wherewithal to pay them potentially in hand, a resulting duty to pay arose and he would therefore be personally liable therefor, citing State ex rel. v. Tittman, 103 Mo. 533. E. J. Smith for respondent. GRAVES, J.-Action for delinquent personal taxes. The petition is long, but need not be set out except in general outline, and thus only by a statement of the facts of the case. Defendant is sued personally. He was the executor of the estate of Joseph Rhodes, deceased. As such executor on June 26, 1905, he gave an assessment list of the property in his hands as such executor. This list showed a valuation of $21,000. In due course this list |