#### JENNIE LATHROP RAND v. THE UNITED STATES.

[No. 32970.

Decided April 2, 1917.]

*On Plaintiff's Motion.*

[Ante. p. 72.]

*The Reporter's*statement of the case:

On plaintiff’s motion for a new trial and for amendment of the findings of fact the court amends the findings of fact by inserting therein an additional finding, as follows:

*286X. On December 30, 1913, attorneys Lyon & Lyon, of Washington, D. C., acting for and in behalf of the administrator de bonis non cum testamento annexo of the estate of Edmund Dwight, deceased, late of Boston, Mass., filed with the Commissioner of Internal Revenue an application or claim for a refund of taxes paid to the United States in respect of legacies passing under the will of said decedent, included in which was the tax of $3,026.69 here in question.

This claim was rejected by letter of the Acting Commissioner of Internal Revenue on March 28, 1914, to Lyon & Lyon, in which he said:

“ * * * This tax was paid upon the absolutely vested interest of a stranger amounting to more than $25,000 and taxed at the legal rate of $7.50 per $100, and accordingly, under the decision of the Supreme Court in the *Knowlton*and *Fidelity Trust*cases, all this tax was legally due.”

On the same day the same acting commissioner, in a letter addressed to Newcomb & Frey, as “attorneys for the estate of Edmund Dwight,” of which firm the II. T. New-comb who filed the claim set out in Finding IX was the senior member, disallowed that claim in the same language as that quoted above.

*Mr. H. T. Newcomb*for the plaintiff. *Messrs. Morris F. Frey*and *Charles F. Kincheloe*were on the briefs.

*Mr. Seth*Shepard, *jr.,*with whom was *Mr. Assistant Attorney General Huston Thompson*and *Mr. H. S.*Whitman, for the defendants.

Downey, Judge,

delivered the opinion of the court:

The plaintiff moves for a new trial and for amendment of the findings of fact, on the ground that the judgment of the court dismissing the claimant’s petition was for causes which operated as a surprise. With and as a part of the motion, plaintiff’s counsel now submit a stipulation, supported by affidavits, with reference to the filing of a claim with the Commissioner of Internal Revenue on the 30th of December, 1913, by attorneys representing the administrator de bonis non cum testamento annexo of the estate of Ed*287mund Dwight, deceased, and ask a finding showing the filing of that claim and the action of the Commissioner of Internal Revenue thereon. It is said, in effect, that plaintiff was misled by the fact that its originally submitted request for a finding that a claim had been filed and disallowed was indicated by defendant’s counsel as not objected to.

Under the circumstances the court has concluded that the plaintiff ought to have the benefit of a finding as to the filing of said claim by the administrator de bonis non, and the stipulation of counsel, with supporting affidavits, is accepted as sufficient proof of the fact, though it does not bring before us the claim itself, and the additional finding, numbered X, is incorporated in the findings of fact. Counsel also asks that the findings show that the claim set up in Finding IX was considered on its merits and rejected on the ground that the tax was held to have been lawfully and properly collected. We have met this request by a paragraph in the additional Finding X, showing the exact terms in which the claim set up in Finding IX was disallowed. The motion for amendments of the findings is in all other respects with reference to matters which were included in the original request for findings, and which have already received the attention of the court, and in these respects we see no occasion for modifying the findings as made.

In the opinion of the court the filing of the claim by the administrator de bonis non does not, under the facts shown, furnish any better basis for the prosecution of this action by this plaintiff in her own right than did the claim filed by the New England Trust Co., and extended discussion is deemed unnecessary. Further, it would seem that in fact this administrator, when this claim was filed, could have had no right to the money had the Commissioner of Internal Revenue found that the tax had been illegally assessed; no authority in him to file a claim for this plaintiff is shown, and he was in no legal sense her fiduciary. The peculiarity is now noted that the claim to this money filed by the New England Trust Co. and set up in Finding IX, and the claim by the administrator de bonis non of the estate of Edmund Dwight, set up in the additional *288Finding X, were both pending before the Commissioner of Internal Revenue at the same time, while this action is by neither but is by the person who in reality paid the rax, as shown by the facts found, and who is apparently the only person entitled to its recovery, if recovery is to be had at all.

The findings as thus amended will stand as the findings of fact and it is ordered that the motion for new trial is overruled.