other parties who contributed to said fund shall each be entitled to a distributive share in said funds in proportion to their several contributions thereto. ***

"It is further provided that the trustee shall, after deducting his expenses pay to Clara H. Booth the interest from investments made by him, and that the amounts so paid shall be the sole and separate property of said Clara H. Booth.

"It is further provided that the trustee shall render to each of the parties to said agreement annually a full and accurate account and report of the investment made by him."

The statute under which the assessments were made in this case is section 492 of the Code, which, so far as need be quoted, is as follows:

"If the property is the separate property of a person over twenty-one years of age, or a married woman, it shall be listed and taxed to the trustee, if any they have, and if they have no trustee it shall be listed by and taxed to themselves; in either case it shall be listed and taxed in the county or corporation where they reside. *** If the property is held for the benefit of another, it shall be listed by and taxed to the trustee in the county of his residence (except as hereinbefore provided).”

This statute was construed in Selden v. Brooke, 104 Va. 832. In that case the facts were that there was a trust fund under the control of the Corporation Court of the city of Norfolk, in which Elizabeth T. Selden had an estate for her life. For that fund the Corporation Court of the city of Norfolk appointed a trustee, and directed him to pay the income and revenue accruing therefrom to Elizabeth T. Selden, the cestui que trust, during her natural life. The life tenant resided in the city of Norfolk, but some of the remaindermen and the trustee were non-residents, and the choses in action in which the trust fund was invested were at all times during the years for which the taxes were assessed kept by the trustee in his personal possession out

side of the State. The decision of this court, as appears from the syllabus, was that, "Intangible personal property in the hands of a non-resident trustee, in the income from which a person over the age of 21 years residing in this State has a life estate, is, by virtue of the statute in such case made and provided (Acts 1897-8, p. 519, amending Code, section 492), taxable in this State in the county or corporation in which the beneficiary resides. The tax,

though assessed in the name of the trustee, is not against him, but the beneficiary. He is the mere conduit through the medium of which the tax upon the property of a citizen passes into the treasury." The decision is rested upon the ground that it is the policy of this Commonwealth to impose taxes on all intangible property of its citizens in the county or corporation of their residence, without regard to the situs of the physical symbol by which such property is evidenced. Furthermore, it is said: "Though the tax is assessed in the name of the trustee, the burden is in reality imposed upon the beneficial owner, a resident of the Commonwealth, who enjoys the protection of its laws along with other citizens, and ought, in fairness, to contribute her due proportion of revenue for the support of the government. ***

"If the construction contended for on behalf of the appellant, that the domicile of a non-resident trustee fixes the situs of intangible personal property for purposes of taxation, were to prevail, it would afford ready means of escape from taxation and divert from the treasury, of the State a very large amount of revenue to which, in our judgment, it is justly entitled. The contention that the construction indicated would render the statute unconstitutional, proceeds upon the hypothesis that the tax is against the nonresident trustee, whereas he is personally unaffected by the imposition, and is but the conduit through the medium of which the tax upon the property of a citizen passes into the State treasury. Hunt v. Perry (Mass.), 43 N. E. 103; Lewis v. County of Chester, 60 Pa. St. 325."

Not a word is said about the trustee being an appointee of a court of this State or his accountability to such court, nor is there an intimation that the result would have been different if the appointment had been by the voluntary act of the parties in or out of the State. Indeed, the last paragraph quoted above would seem to indicate that the result would have been the same if the appointment had been by such voluntary act of the parties.

In the instant case no express life estate is given in the corpus of the fund from which the interest or income is to be derived, but it is stipulated that "said trustee shall, after deducting his expenses, remit to the said Clara H. Booth all sums received by him as interest from investments and deposits as received" during her natural life, "and that such remittance shall be the sole and separate property of the said Clara H. Booth." It is a conceded fact that Mrs. Booth was to receive the entire income from the trust subject during her natural life, subject to no deduction except the expenses of the trustee in handling the fund, or, in other words, the entire net income. What other or different interest would she have had, what more I could she have gotten from it, if the corpus had been conveyed to the trustee in trust for the life of Clara H. Booth, with remainder to the founders of the trust? A gift to another for his life of the entire income and interest to be derived from a trust fund is a gift of a life estate in the fund. The quantity of the estate is the same. No matter by what name it is called, and it is this quantity of estate to which the tax laws apply.

In Walker v. Hill, 73 N. H. 254, a devise to a wife of "the income of the remainder of my estate during her natural life" was held to give to the wife a life estate in the property. In Little v. Coleman, (N. H.) 66 Atl. 483, there was devised to one daughter "the use of my farm Vassalborough" during the term of her natural life, and to other daughters "the income from all the rest and residue of my real estate and personal property" during the term of their

natural lives, and in each case it was held that the devises constituted life estates in the property. The question seems to have been passed upon quite often in Tennessee, though it was not always necessary to the decision of the. case. We quote from one of the late cases. In Johnson v. Johnson, 23 S. W. 114, it is said: "We are of opinion that, if the devise is valid, then the item passes the fee in the property for the purposes indicated, the net income from which is to be expended and appropriated by the trustee. While there is no specific devise of the property, yet a devise of the rents and profits and income is, in effect, a devise of the property itself. Polk v. Faris, 9 Yerg. 241; Morgan v. Pope, 7 Cold. 547; Davis v. Williams, 85 Tenn. 648, 4 S. W. Rep. 8; Pilcher v. McHenry, 14 Lea 88; 1 Jarm. Wills 152, note; 3 Washb. Real Prop. 529, 530; Spofford v. College (Jan. 1889). In the case last mentioned, Thomas Martin, of Giles county, had set apart $30,000 in bonds of the State of Tennessee, the interest to be applied to the founding and operating of a female school at Pulaski, Tenn. After the school had been founded, and successfully operated for a number of years, Mrs. O. M Spofford, his only daughter and residuary legatee, filed a bill claiming that only the interest upon the bonds was devoted by the will of her father to the school, and that when the bonds matured, and the interest coupons had all been clipped and exhausted, then the bonds or corpus of the fund would revert to her, as residuary legatee under the will. The court below, as well as this court, held that the gift of the interest of the bonds carried the bonds themselves, and the fund could not be diverted from the charity.”

In 17 Ruling Case Law 620, (citing cases from Iowa, Connecticut, Pennsylvania and other States) the law is stated thus: "A devise or bequest of the 'use and improvement' of property during the life of the devisee, or of the rents, profits and income of the property for life, is in effect a devise of the property itself for life."

Independent of precedent, it seems clear that a gift for life of the whole income from a fund is a gift of a life estate in the fund itself, and, for the purpose of taxation, it seems immaterial whether there is or is not interposed a trustee to collect and pay over such income.

In the instant case, Mrs. Booth has an estate for her life in the trust fund in controversy, and as she resides in this State her trustee is properly chargeable here with the taxes from which he seeks relief. It is the duty of the life tenant who receives the entire income to pay the taxes on the corpus.

This is no hardship on the life tenant. She occupies the same position as any other life tenant in this State of intangible personal property. The property in which she has a life estate is taxable at the place of her residence, without regard to the situs of the physical symbols by which such property is evidenced. Commonwealth v. Williams, 102 Va. 778. If it were otherwise, citizens of this State could, by creating foreign trusts, deprive the State of a very large part of its revenue.

Objection is made to the fact that the assessment was made by the commissioner of the revenue upon information derived from the examiner of records, instead of by making inquiry of the taxpayer. If any error was made in this respect to the prejuidice of the plaintiff in error, he had ample opportunity to have it corrected by the circuit court, which had power to examine into the matter and to do all that the commissioner of the revenue had power, or was required, to do in the premises under the tax laws of this State. Commonwealth v. Schmelz, 114 Va. 364, 7 Va. App. 395; Commonwealth v. United Cig. M. Co., 119 Va. 447, 12 Va. App. 481.

The language of Harrison, J., in Bridgewater Man. Co. v. Funkhouser, 115 Va. 476, 8 Va. App. 517, is peculiarly applicable to this assignment of error. He says: "The complainants make several technical objections to the time and method of this assessment, insisting that it was not made