apart, this direction is sufficient to make the estate liable, and relieves the annuity.'

In England, where the will clearly releases the legacy from the duty, it must be paid by the executors.2

Where, however, the will provided that the devisees should pay "all taxes, ground rents and other necessary and legal charges upon the real estate devised to them," and that "not wishing such gifts, devises, etc., to be interfered with or lessened," all legitimate charges were to be paid by his executors, it was held that the devisees, and not the estate, were liable.

And where the will bequeathed a fund to trustees to receive the collected income and produce thereof, and after deducting all proper costs, to pay the residue of such income to the beneficiary-held that the duties were a charge upon the latter's income.*

But where a married woman had a general power of appointment, and by will appointed the fund and nominated executors of her will, they and not the trustees of the instrument by which the power is created were held to be the proper persons to administer the trust fund, and the executors were accordingly held liable for the legacy duty.

1 Bispham's Est. 46 Leg. Int. 98.

2 Barksdaile v. Gilliat, 1 Swans. 562; Baiely v. Boult, 21 L. J. Chanc. 277; Fisher v. Brierly, 30 Beav. 267; Foster v. Ley, 2 Bing. N. C. 269. See, also, cases cited in Theobold on Wills, 3d ed. pp. 136-143.

3 Shippen v. Burd, supra.

• Sohier v. Eldridge, supra; Hathaway v. Fish, supra.

5 Philbrick's Trust, 13 W. R. 570. See, also, Chapter VI,

sec. 6.

Where real estate passes directly to the devisees, and in intestacy to the heirs, it is no part of the executor's or administrator's duty to pay the tax. Those who take the lands are liable therefor.1

Where the executor or other personal representative has been compelled to pay the tax after he has paid the legacy in full to the heir or legatee without deduction, the question has arisen as to whether such heir or legatee assumes any liability to the executor for the amount of the tax so paid for the legatee's benefit. In such cases the legatees have been held liable, in England, to the executors in actions at law, and the same rule would seem to exist, or at least to be applicable, under the statutes in this country, if not at common law, as for money paid by the executor by compulsion of law for the benefit of the legatee. But it is doubtful whether, in New York, the surrogate's court has jurisdiction over a proceeding of this character, or can compel a legatee to repay. The remedy would seem to be at law."

8

5

1 See sec. 2, supra, p. 203, and Boyd's Est. 4 W. N. C. 510; Forbes' Est. 16 Phila. 356; Com. v. Coleman, 52 Pa. St. 468. 2 See sec. 2, supra, pp. Foster v. Ley, supra;

204, 205; Chapter VIII, sec. 1.

Bate v. Payne, 13 Q. B. 900; Hales v. Freeman, 1 Br. & B. 391. See In re Sammon, 3 M. & W. 381; Greville v. Greville, 27 Beav. 596; Turner v. Martin, 7 DeG. M. & G. 429.

See Hunter v. Husted, Busby's Eq. 141; Atty.-Gen. v. Allen, 6 Jones' Eq. 144; Boyd's Est. 4 W. N. C. 510; Forbes' Est. 16 Phila. 356; Montague v. State, 54 Md. 486; Matter of Vanderbilt, 10 N. Y. Supp. 239.

5 See, generally, Matter of Underhill, 117 N. Y. 471; Matter of Keech, N. Y. Law Jour. May 7, 1889; affd. 32 N. Y. St. Rep. 227; Seibert's App. 18 W. N. C. 278; Large v. McClain, 7 Atl. Rep. 101.

• See Matter of Underhill, supra; Matter of Keech, supra.

Where an executor has paid the tax upon a legacy to an infant, with the knowledge and consent of the latter's general guardian, such executor cannot, on a subsequent accounting, be held liable by a guardian ad litem for the amount so paid, upon the ground of an alleged exemption.1

$4. Compromises between executors and legatees.-— Where money is received by claimants under a deceased person's will by reason of a compromise contract between them and the executors, sanctioned by a court having jurisdiction, the money so received does not fall within the category of legacies and distributive shares in intestate estates which are subject to federal revenue taxes.2

But under the English statute where the testator directed a certain estate to be sold, and the proceeds to be divided between his two sons, but they preferred to take the property themselves under an amicable arrangement, the duty was imposed upon the value of the property although the division of the estate was not in strict pursuance of the decedent's will.8

1 Farquharson v. Nugent, 6 Dem. 296.

2

Page v. Rieves, 1 Hughes, 297. But see Brune v. Smith, 13 Internal Rev. Rec. 54.

3 Atty.-Gen. v. Holford, 1 Price, 426; Ex parte Stitwell, 59 L. T. Rep. 539.

CHAPTER VIII.

REMEDY AND PRACTICE.

§ 1. Nature of remedy and actions and proceedings thereunder. 2. Lien of the tax and its effect.-Statute of limitations. 3. Interest and penalties for non-payment of tax. 4. Retroactive, amendatory and repealing statutes.

§1. Nature of remedy and actions and proceedings thereunder.'-It becomes important under statutes imposing collateral inheritance, legacy and succession taxes to determine not only the proper remedy and practice to be pursued in proceedings to enforce the liability of person or property to the tax, but also the rights and obligations of different parties to the proceeding, or who are liable to be affected thereby. Some of the questions upon this subject have received partial consideration in the preceding chapter.

Where the proceeding to collect a tax is of a statutory nature, the remedy pointed out by the statute is generally exclusive of any other remedy, and must be strictly followed, but in the absence of

1 For forms and practice under N. Y. statute, see Appendix; Matter of Astor, 6 Dem. 402, 419; 2 Lawyer Rep. A. 825, note; 19 Abb. N. C. 234, note.

2 See U. S. v. Penn. Co. 27 Fed. Rep. 540; U. S. v. Trucks, Id. 541; Matter of McPherson, 104 N. Y. 323, 324; Matter of Hall, 27 N. Y. St. Rep. 133; Matter of Howard, 54 Hun, 305; Anderson v. Anderson, 112 N. Y. 104, 113; Central Trust Co. v. R. R.

any designated method of procedure in the statute, it seems that the ordinary or common law methods may be pursued.1

Again, as the collateral inheritance or succession tax is not always imposed upon the entire estate of the decedent, but as a rule upon the specific taxable interest or property passing either by will or intestacy, the proceeding to assess and collect the tax, though, as we have seen, frequently involving a personal liability upon the part of the executor, administrator, trustee or legatee, is more strictly analogous to an action in rem, as being against the taxable estate or share to satisfy the tax out of the specific property in the hands of the persons having the custody or possession thereof.

Such were the rulings under the succession acts of Congress, and it was accordingly held that no personal liability existed upon the part of the executor as such, though he would appear to have been so liable under the legacy act of Congress.*

Hence, under the acts of Congress mentioned, a common law remedy to recover the tax could not be maintained against the executors, the remedy af

Co. 15 N. Y. St. Rep. 180; 18 Id. 32; Matter of R. R. Co. 110 N. Y. 374.

1 U. S. v. Trucks, supra; Montague v. State, 54 Md. 483; Torrey v. Willard, 28 N. Y. St. Rep. 641.

2 See Chapter II, sec. 2; Chapter III, sec. 10.

3 U. S. v. Allen, 9 Ben. 154; citing 12 U. S. Stat. 485, sec. 412; U. S. v. Trucks, supra; U. S. v. Penn. Co. supra; U. S. v. Tappan, 10 Ben. 284; Sohier v. Eldridge, 103 Mass. 345; see Succession of Dupuy, 33 A. La., 258.

4 U. S. v. Tappen, supra.