Page:Federal Reporter, 1st Series, Volume 8.djvu/889

 UNITED STATES V. EANKIN. ���.^6 ���In the case of May v. Slack, 16 Int. Eev. 134, it was held that, in the case of a pecuniary legacy, the tax "accrued" immediately on the death of the testator, although net due and payable until a subse- quent period, and consequently the legatee was liable despite the re- pealing statute. So far as disciosed, that was a case of immediate bequest, subject only by operation of law to the usual course of ad- ministration, — a case different from that under consideration in this : that here the American legatees were to have possession only after the determination of a life estate. �In the case of Clapp v. Mason, 94 U. S. 589, the foregoing case of May V. Slack was summarily disposed of, with the remark that it bas no bearing on the question then considered. Why not ? The repealing act pertained to legacies and successions. True, as to suc- cessions, there are some provisions not applicable to legacies; yet the main fact is common to botfa, viz., that the taxes were not due and payable until the beneficiary entered into possession or enjoy- ment. The United States supreme court said : "It is manifest that the-right does not accrue until the duty can be demanded; that is, when it is made payable." Hence it was held in that case that as the remainder-men did not enter into possession until 1872, after the determination of a life estate created in 1867, no succession tax accrued before the repealing act. �In the case now before the court the remainder-men and their rep- resentatives did not, as legatees, corne into possession or enjoyment of the legacies until 1877, on the extinguishment of the life estate. The exception in the repealing act is clear and significant. No taxes had been nor could lawfully be assessed on these legacies prier to August or October, 1870, for the legacies were not then due and pay- able, nor were they liable to be assessed. Certainly, the taxes had not accrued, for no possession or enjoyment accrued until 1877. �The case of Clapp y. Mason seemed to have been decisive of the question as to successions, and, by parity of reasoning, as to legacies alao. But in the case of Mason v. Sargent, 23 Int. Rev. Rec. 155, the United States circuit court for Massachusetts held otherwise. That ruling was made before the decision of the United States supreme court was known, and followed the case of May v. SUick. The case of U. S. y. Hellman, 23 Int. Rev. Rec. 887, refers to Clapp v. Mason, and, for reasons given, follows Mason v. Sargent. �Which Une of reasoning or construction is the more cogent — that of the United Statos supreme court, or of the two circuit courts? If the United States supreme court had passed directly upon the point ��� �