#### LUCIA E. BLOUNT, IN HER OWN RIGHT AND AS ADMINISTRATRIX C. T. A. OF THE ESTATE OF HENRY F. BLOUNT, DECEASED, v. THE UNITED STATES

[No. B-86.

Decided March 3, 1924]

*On the Proofs*

*Interna,1-revemie tax; tenants 6y the entirety; marrierl woman’s act.*— Conveyances *of*real estate in the District of Columbia to husband and wife, their heirs and assigns forever, prior to the adoption of section 1031 of the Code of said District, created in them a tenancy by the entirety, unaffected by the married woman’s act.

*Same; voluntary return of tenancy by entirety as joint tenancy after husbands’ death; payment of estate tax.*— Where the survivor of a tenancy by the entirety makes a return of an estate tax on the property held by the entirety as held by a joint tenancy, and voluntarily pays an estate tax on one-half of the value of such property as though transmitted from the decedent, the said survivor cannot recover back the tax so paid.

*The Reporter's*statement, of the case:

*Mr. Charles F. Garusi*for the plaintiff. *Mr. Jesse B. Adams*was on the briefs.

*Messrs. Fred II. Dyar*and *Thomas II. Le-wis,*jr., with whom was *Mr. Assistant Attorney General Robert II.**329Lovett, for the defendant. *Mr.*Nelson' *P. Hcorston*was on the briefs.

The .following are the facts of the case as found by the court:

I. By deeds dated September 4, 1891, October 5, 1891, and August 21, 1894, there was conveyed to Henry F. Blount and Lucia E. Blount, his wife, their heirs and assigns forever, certain land, with the appurtenances thereto, in Georgetown, D. C., commonly known as “The Oaks,’’ the same to be had and holden unto and to the use of Henry F. Blount and Lucia E. Blount;, their heirs and assigns forever. These conveyances were duly recorded in the land records of the District of Columbia. Each of the above-mentioned deeds created in Henry F. Blount and Lucia E. Blount, his wife, a tenancy by the entirety in the land conveyed to them thereby. The consideration given in exchange for the conveyance of the aforesaid property to Henry F. Blount and Lucia E. Blount was paid entirely by Henry F. Blount from his separate property, and no part of said consideration was furnished by Lucia E. Blount. The aforesaid property, with the exception of a portion thereof conveyed to certain third parties by the said Henry F. Blount and Lucia E. Blount during their joint lives, continued to be held by them as tenants by the entirety.

II. Henry F. Blount died in Washington, D. C., October 10, 1911. By his last will, executed February 1, 1917, he devised and bequeathed all of his property, both real and personal, to the said Lucia E. Blount, provided she should survive him. In his will lie named the American Security & Trust Company as executor of his estate. Lucia E. Blount survived Henry F. Blount. The will wras duly proved and admitted to probate in the Supreme Court of the District of Columbia, and the said trust company having refused or failed to qualify as executor under the will, letters of administration were, on August 13, 1918, issued to Lucia E. Blount as administratrix, with the will annexed.

III. On September 9, 1918, Lucia E. Blount, as such ad-ministratrix, filed without protest an estate-tax return for the estate of Henry F. Blount, a copy of which is attached hereto and made a pact hereof, and marked “Exhibit A.”

*330IV.The said estate-tax return included the following-items :

Gross ©sttit© *

”3101 R St. NW, Washington, D. C_$57, 000. 00

Other assets_ 1, 570. 50

Total gross estate_ 58, 570. 50 Deductions:

Specific exemption_ $50, 000. 00

Other deductions_ 448. 56

- 50,448.56

Net estate_ _ 8,121.94

Tax at 2%_ 162. 44

The item in the return, real estate, 3101 R St. NW., Washington, D. C., $57,000.00, purported to represent one-half of the value of the property held by the entirety, as described above.

The estate tax, in the amount of $161.94, based on the net estate shoivn by the said return, amounting to $8,121.94, was paid without protest on September 19, 1918, by the administratrix.

V. Thereafter the said return was reviewed by the Commissioner of Internal Revenue.

VI. In said summary the item “ Realty ” covering the property known as “ The Oaks,” was included in the gross estate at its full value, $115,000, instead of at one-half of its value: As a result of this change and certain other increases the said summary showed the following items:

Gross estate *i*

Real estate (3101 R St. NW., Washington, D. C.) — 1 $115,000.00

Other assets_ 89, 942. 35

Total gross estate- 204, 942. 35

Deductions_ 51, 447. 73

Net estate for tax_ 153, 493. 62

Total tax due as determined on review_ 5,209. 62

Total tax paid_ 162. 44

Additional tax due- 5, 047.18

VII.The additional tax ($5,047.18) shown by this review to be due was assessed in June, 1920. The amount by ivhich the tax was increased by including in the gross estate *331the second half of the property held by the entirety -was $2,369.87. That part of the additional tax which was based on the inclusion in the gross estate of the whole of the property held by the entirety amounted to $4,439,75.

VIII. On September 22, 1920, a claim for abatement of the aforesaid additional tax in the amount of $5,047.18 was filed by the said Lucia E. Blount, administratrix, c. t. a., and was rejected by the Commissioner of Internal Revenue on November 22, 1920. A copy of this claim for abatement is attached hereto and made a part hereof, marked “ Exhibit C.”

IX. Thereafter, on March 7, 1921, the administratrix paid under protest the additional estate tax in the sum of $5,047.18, with interest for eighty-five days at the rate of ten per cent per annum, making a total additional payment of $5,164.74. This payment was made to avoid distraint and other modes of forcible collection, as by the statute provided, and was protested on the ground that the gross estate was computed by including the value of the jiroperty held as an entirety. Of the total interest ($117.56), $55.19 represents the interest on $2,369.87, which is the amount by which the tax was increased by including in the gross estate the second half of the property held by the entirety; and $103.41 represents the interest on $4,439.75, which is that part of the additional tax based on the. inclusion in the gross estate of the whole of the property held by the entirety.

X. Thereafter, on August- 31, 1921, the administratrix filed her claim for refund of the additional tax of $5,164.75. A copy of said claim for refund is attached hereto and made a part hereof, and marked “ Exhibit D.”

XI. Thereafter, on November 29, 1921, said claim was rejected by the Commissioner of Internal Revenue, and on May 19, 1922, the administratrix filed her petition in this court to recover the sum of $5,164.74, for the reasons therein set forth.

XII. Thereafter, on March 6, 1923, the administratrix filed an amended petition, in which she demanded the recovery of $4,543.19, for the reasons therein set forth.

XIII. If plaintiff is entitled to recover all taxes assessed and paid upon the whole of said land, “ The Oaks,” the *332amount of lier recovery should be $4,543.16, with interest thereon from March 7, 1921. If plaintiff is entitled to recover the ta.x assessed and paid upon the one-half interest in said land additional to the one-half interest she returned for taxation, the amount of her recovery should be $2,425.60, with interest thereon from March 7, 1921.

Exhibit A

(To be filed in duplicate.)

This return must be filed within one year after the day of death of the decedent.

Form 706, revised July, 1917.

Treasury Department, Internal Revenue Bureau.

(Regulations No. 37, revised, should be carefully studied before making return.)

Decedent’s name, Plenry F. Blount. Date of death, Oct. 10,1917.

(Write family name first, given names after.)

Residence at time of death, 3101 R St. NW., Washington, D. C.

(Street and number.) (City or town.) (State, Territory, or foreign country.)

Penalties:

1. For knowingly making false statement in this return, a fine not exceeding $5,000, or imprisonment, or both.

2. For failure to file within the required time, a fine not exceeding $500.

*The gross estate*

I. REAR ESTATE

Location (Exact legal description) "The Oaks,” 3101 R St. NW., Washington, D. C., known as parcels 39-9, 39-10, and 39-11; $ of which was owned by decedent as a joint tenant, a £ undivided interest in 5 lots, and a J undivided interest in deferred purchase money notes in two lots, all in a subdivision known as Northwest Park in Montgomery Co., State of Maryland.. (If more space is needed attach rider.) Value on day of death Total........ 57,625 Income accrued to day of death None. Grand total, realty and income, $.

*3332. TRANSFERS

Includes all gifts or other transfers, except bona fide sales, made in contemplation of or to take effect at decedent’s death.

*334

I, Lucia E. Blount, (lie undersigned, administratrix, do hereby solemnly swear that the above statement of gross and net estate of Henry F. Blount, the above-named decedent, is in all respects true to the best of my knowledge and belief; that letters testamentary, c. t. a. were granted upon the said estate on the 13th day of August, 1918, by the Supreme Court of the District of Columbia; and that this is a final return of the estate.

(Signed) Lucia E. Blount.

(Address for mail.)

*335State op Va.,

*County of Clarke:*

Subscribed and s>vorn to before me at Clarke County, Va., this ninth day of September, 1918.

[seal] (Signed) Walter E. BloijNT,

*Notary Public, Deputy Collector'.*

My commission expires Apr. 17th, 1922.

Exhibit B

2. Estate of Henry E. Blount. Date of death, Oct. 10, 1917.

*Summary*Gross estate: Realty___Gifts and transfers. Stocks and bonds. Jointly owned property.— Mtges., notes, and miscel_ Total__. Deductions: Funeral expenses. Administration expenses— Exr. or admr. fee. Attorney’s fee.Miscellaneous.Claims against estate— Mortgages.. Debts of decedent_ Net losses during admn. Support of dependents-. Other charges allowed by law. Specific exemption. Total. - Net estate for tax.. Total tax.'. Additional tax due.. Returned Determined (706) on review i $58,125.00 2 433.50 3 58,570. 50 198.75 $115,625.00 80,067.00 446.00 1,642.99 7,161. 36 204,942.35 198.75 100.00 1,100.00 149.98 50,000.00 149.98 50,000. CO 50,448.56 51,448.73 8,121.94 153,493.62 162.44 | 5,209.62 ..-I 5,*047.18 1 Error; should be $57,625.00. 3 Error; should be $58,558.50. sError; should be $445.50. ‘Error; should be $50,448.73.

Exhibit C

Treasury Department, U. S. Internal Revenue.

Form 47, revised April, 1918. Ed. 300,000.

*(Date of filing to be plainly stamped here.)*

*336CLAIM E0R ABATEMENT-TAXES ERRONEOUSLY OR ILLEGALLY ASSESSED

State oe Dist. oe Columbia,

*Oity of*Washington, *ss:*

(Important: This claim should be forwarded to the collector of internal revenue from whom notice of assessment was received.)

(Write name so it can be easily read.)

Lucia E. Blount (name of claimant), c/o Charles F. Carusi, 818 13th Street NW., Washington, D. C. (address of claimant: give street number as well as city or town, and State).

This deponent, being duly sworn according to law, deposes and says that this claim is made on behalf of the claimant named above, and the facts stated below with reference to said claim are true and complete:

1. Business engaged in by claimant: None.

2. Character of assessment or tax: Beal estate transfer tax.

3. Amount of assessment: Five thousand and forty-seven 18/100 dollars, $5,047.18.

4. Amount now asked to be abated: All of tax and penalty, $--

Deponent verily believes that the amount stated in item 4 should be abated, and claimant now asks and demands abatement of said amount for the following reasons:

In 1891 the property upon which this transfer tax wras assessed, under clause D of section 402 of the revenue act of 1918, was conveyed in fee simple to Henry Blount and Lucia Blount, his wife, as tenants by the entireties.

Under the law of this District, as it existed at the time of the creation of this estate, the wife became seized in fee of the entire estate. Although such estate would have determined automatically at her death, it was in no sense increased, enlarged, or transferred to her by her husband’s death. The sole effect of his death was to eliminate his interest which died with him. Claimant is advised that it was not the intention of Congress to tax transfers made previous to the enactment of this law and that the section referred to was intended to apply only to estates by the entireties created after the passage of the act and which, therefore, but for this provision, would open an avenue for the evasion of its purpose. A statute is not to be construed as retroactive. The claimant here derived her estate from the deed of 1891 and not from her husband. Said estate should not, therefore, be assessed as part of his estate and *337the widow be required to pay a further tax out of the balance of his estate already assessed and taxed.

(Signed) Lucia E. BlouNt.

(Write name so it can be easily read.)

Sworn to and subscribed before me this 20th day of Sept., 1920.

[seal.] (Signed) James C. DuliN, Jr.,

*Notary Public, D. G.*

I certify that an examination of the records of the commissioner’s office shows the following facts as to the assessment and payment of the tax:

Name and address Blount, Henry F — - Oharacter of assessment or article taxed Estate tax.. Period covered by assessment List Year 1920 Month Page Line Amount $5,047.18

(Signed) C. K. MaNSUx,

*Assessment*Glerk, *Internal Revenue Bureau.*

Form 47

District: Maryland.

Abatement Order No. —.

E. T. (Nature of tax.)

Claimant: Estate of Henry F. Blount. Address: By Charles F. Carusi, atty. (Wash., D. C.) Examined and submitted for action Nov. 22, 1920. Amount claimed, $5,047.18. Amount allowed, $- Amount rejected, $5,047.18. (Claim examined by CW Mr.) (Claim approved by J. F. S., chief of division.) Committee on claims: (Signed) James HageRmaN, Jr. C. P. Smith. Exhibit D

Treasury Department, Internal Revenue Service. Form 46, revised Jan., 1921. Ed. 200,000.

(Date of filing to be plainly stamped here.)

*338CLAIM FOR REFUND — TAXES ERRONEOUSLY OR ILLEGALLY COLLECTED — -ALSO AMOUNTS PAID FOR STAMPS USED IN ERROR OR EXCESS

District of Columbia.

*City of Washington, ss:*

(Important: This claim should be forwarded to the collector of internal revenue to whom the tax was paid, and must be accompanied by collector’s receipt therefor.)

(Write name so it can be easily read.)

Lucia E. Blount (name of claimant), 3101 K, St. NW., Washing-ton, D. C. (address of claimant; give street and number as well as cit}^ or town and State).

This deponent being- duly sworn according- to law deposes and says that this'claim is made on behalf of the claimant named above, and that the facts stated below with reference to the claim are true and complete:

1. Business engaged in by claimant: Housewife.

2. Character of assessment or tax: Inheritance tax. (State for or upon what the tax was assessed or the stamps affixed.)

3. Amount of assessment or stamps: $5,164.75.

4. Amount now asked to be refunded (or such greater amount as is legally refundable) : $5,164.75.

5. Date of payment of assessment or purchase of stamps: Dec. 7, 1920.

Deponent verily believes that the amount stated in item *4*should be refunded and claimant now asks and demands refund of said amount for the following reasons:

That said inheritance tax was assessed upon property that was owned by Henry F. Blount and Lucia E. Blount, his wife, the present claimant, as an estate by the entireties. Therefore at the death of Henry F. Blount nothing was inherited by his wife. The above parties became possessed of the property in question known as The Oaks in the year 1891, and deponent says that neither section 1031 of the Code of Law for the District of Columbia, enacted in 1901, nor the provisions of clause D of section 402 of the act of Congress known as the inheritance tax law, were intended to have any retroactive effect.

And this deponent further alleges that the said claimant is not indebted to the United States in any amount whatever, and that no claim has heretofore been presented, except as stated herein, for the refunding of the whole or any part of the amount stated in item 3.

(Signed) Lucia E. Blount,

(write name so it can be easily read.)

*339Sworn to and subscribed before me this 31st day of August, 1921.

[seal.] (Signed) Bates M. Stovall, Name.

*Notary Public.*Title.

(This affidavit may be sworn to before a deputy collector of internal revenue without charge.)

CERTIFICATES

I certify that an examination of the records of the Bureau of Internal Revenue shows the following facts as to the assessment and payment of the tax:

Name of taxpayer Est. of Henry E. Blount. Character of assessment and period covered Estate tax. List Year 1920 1921 Month June. Dec.. Page Line Amount $5,047.18 117.56 Date paid 12-8-20 12-8-20 District in which paid Md. -,

*Assessment*Clerk, *Commissioners Office.*

-,

*Collector of Internal Revenue.*

I certify that the records of my office show the following facts as to the purchase of stamps:

To whom sold or issued Kind ¡ Number Denomination Date of sale Amount If special tax stamps, state: Serial number Period commencing Collector. _District.

*340Form 46

Schedule Number_ District: Md. E. T. (Nature of tax.J

Allowed or rejected number.

Claimant: Estate of Henry F. Blount, by Lucia E. Blount,' administratrix.

Address: 3101 R St. NW., Washington, D. C. ■

Examined and submitted for action 11-29-21.

Committee on claims:

(Signed) L. S. Ruddick,

*Aotmg Deputy Commissioner.*

J. C. Rogers,

J. B. McL.

Amount claimed, $5,164.75.

Amount allowed, $_

Amount rejected, $5,164.75.

(Claim examined by FEC Mr.)

(Claim approved by JFS, head of division.)

This space for use in office of Auditor for Treasury Department.

Audit number_

Date_192_

Audit clerk_

1

 Exclusivo of another parcel valued at $02.1.00.

Campbell, *Chief*Justice,

delivered the opinion of the court.

By this action the plaintiff, Lucia E. Blount, suing in her own right and as administratrix, *own testamento an-*nexo, of her deceased husband, seeks to recover certain taxes paid which the Commissioner of Internal Revenue, on due application, has refused to refund. From the agreed statement of facts upon which the case was submitted it appears that by three several deeds of conveyance, dated September 4, 1891, October, 5, 1891, and August 21, 1894, there was conveyed to Henry F. Blount and Lucia E. Blount, his wife, their heirs and assigns forever, certain real estate in the District of Columbia, commonly known as “ The Oaks.” Flenry F. Blount died in Washington October 10, 1917, testate, and by his will devised and bequeathed all of his property to Lucia E. Blount, his wife. The executor named in the will did not qualify, and letters of administration c. t. a. were duly granted to Lucia E. Blount. In Sep*341tember, 1918, she filed a tax return in which as part of the gross estate of the decedent she made return of a half interest in “The Oaks” (describing the property), with the statement, “ one-lxalf of which was owned by the decedent as a joint tenant.” " This one-half interest was valued at $57,000. Some other items were returned, making the aggregate for the gross estate $58,570, from which were deducted the statutory exemption of $50,000 and some other items, leaving as the net estate, subject to taxation, $8,121.94. Upon this net estate a tax of 2 per cent, or $162.44, was paid by plaintiff without objection or protest. Subsequently, upon revieiv of this return by the commissioner, he decided that the value of the whole of said real estate should be included in the gross estate, and the gross estate was accordingly increased to $115,000. The plaintiff was required to pay an additional tax on this valuation and some other items, which she did in the sum of $5,047.18. Payment was made under protest, and having applied for a refund of it she brings this action.

The provisions of the statute relied upon to sustain the tax are several sections of the revenue act of 1916, 39 Stat. 756, 777. The amendments made by the act of March 3, 1917, 39 Stat. 1000, and by the act of October 3, 1917, 40 Stat. 300, are by the Government conceded to have no effect on the questions here presented. The sections of the act of 1916 wfitli w^hich we are directly concerned are as follows:

> “ Sec. 201. That a tax (hereinafter in this title referred to as the tax), equal to the following percentages of the value of the net estate, to be determined as provided in section turn hundred and three, is hereby imposed upon the transfer of the net estate of every decedent dying after the passage of this act, whether a resident or nonresident, of the United States:

> “ One per centum of the amount of such net estate not in excess of $50,000.”

Then follow a graduated scale of percentages.

> “ Sec. 202. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated:

> *342“(c) To the extent of the interest therein held jointly or as tenants in the entirety by the decedent and any other person, or deposited in banks or other institutions in their joint names and payable to either or the survivor, except such part thereof as may be shown to have originally belonged to such other person and never to have belonged to the decedent.”

By section 203 provision is made for determining the value of the net estate, by deducting certain items and an exemption of $50,000 from the ascertained gross estate. This net estate is taxed.

Á stipulation in the agreed statement of facts is to the effect that Henry F. Blount and his wife, Lucia E. Blount, held the real estate as tenants by the entirety. We may say here that the effect of the deeds being a matter of construction, the right of parties to stipulate their effect would be subject to question. In the instant case the stipulation is no doubt predicated upon the decisions of the courts in the District of Columbia. In *Loughran*v. Lemmon, 19 App. D. C. 140, it was held that a deed conveying land to a husband and wife, “ their heirs and assigns forever ” created in the husband and wife a tenancy by entirety and that there is nothing in the married woman’s act in force in the District *“*that in any way defeats or destroys the common-law estate by entireties, as that estate subsists between husband and wife by purchase. The estate exists as at common law unaffected by statute.” (Op. 147.) This decision was made in 1901. In *Marshall*v. Lane, 27 App. D. C. 276, decided in 1906, the qffect of section 1031 in the then recently adopted code for the District of Columbia, 31 Stat. 1352, is stated with the result that a conveyance to husband and wife in virtue of that section constituted them tenants in common. See also *Krous*v. *Krous*(Sup. Ct. of Distinct), 41 Washington L. R. 71.

In view of these decisions, which may be regarded as stating not merely a rule of law but also a rule of property in the District, we do not disturb the stipulation of parties as to the character of estate held by the husband and wife under the conveyances of 1891 and 1894, adding, however, that unless these cases be controlling we would hesitate to *343hold that the married woman’s act of 1869, 16 Stat. 45, as revised June 22, 1874, Revised D. C. Stat., p. 87, did not affect the common-law rule relating to estates by the entirety. This rule itself was only applicable to conveyances of the fee to husband and ivife, their heirs and assigns, which it was held made them tenants by the entirety as distinguished from joint tenants, because it was one of the essential characteristics of joint estates that there should be power of transferring in equal shares and one joint tenant could convey his interest, and that because of their legal entity or oneness neither the husband nor ivife could convey without the consent of the other. The result ivas that they were held to be seized as tenants by the entirety *per tout*but not *per my.*

The effect of this married woman’s act of 1869 on estates acquired by the ivife after marriage was, to say the least, in doubt prior to the cases above mentioned. In *Carroll*v. Reidy, 5 App. D. C. 59, it ivas decided that a conveyance of real estate to a husband and wife to hold as tenants in common, and not as joint tenants, creates in them a tenancy in common and not a tenancy by the entirety, the court following the rule stated in *Hunt*v. Blackburn, 128 U. S. 464, and stating (p. 64) that the spirit and purpose of the married woman’s act are to destroy the arbitrary and fictitious unity of husband and wife upon which the peculiar estate of a tenancy by the entirety was founded. In *Alsop*v. *Fedarwisch,*9 App. D. C. 408, the court, explaining *Carroll*v. *Reidy,*supra, declares that it was not decided there, nor necessary to decide in the case then under consideration, what the effect of the married woman’s act was upon estates of tenants by the entirety. It was held in the earlier case that under the terms of the conveyance the estate conveyed was a tenancy in common, and in the later case the deed was held to convey either a joint tenancy or a tenancy by the entirety. The right of survivorship, incident to both of these estates, was, however, given effect. But it is- to be noted in this connection that survivorship in an estate held jointly rested upon a different consideration from survivorship in estates held as tenants by the entirety. In the latter the whole estate remained to the survivor “ under the original *344grant.” See *Hunt*v. Blackburn, 128 U. S. 464, 469. “ The estate was peculiar, for by it both held the entire title. If one died, no new estate ivas conferred upon the survivor. The death simply destroyed the possibility of the decedent’s survivorship. * * * The survivor in such a case took nothing which he or she did not have before, acquired no new title, but took the whole by the original conveyance, for thereby he or she was invested with the entire estate.” *Hoffman*v. *Stigers,*28 Iowa, 302, 306.

In *Rathbone*v. Hamilton, 4 App. D. C. 475, the question was upon the effect of the married woman’s act and the decision turned upon the view that the property in question, having been conveyed to the wife by the husband, did not constitute her statutory separate estate. The statute provided that property acquired by the wife during marriage in “ any other way than by gift or conveyance from her husband ” should be hers as absolute as if she were unmarried. Upon this provision of the statute the court concluded the statute did not affect it. The Supreme Court of the United States, however, took a different view, and held that the statute gave her the right of disposition, notwithstanding the provisions relied upon in the lower court’s opinion. *Hamilton*v. Rathbone, 175 U. S. 414. There is much conflict in the authorities upon this question. Decisions of the State courts may be found oh either side of it, but it seems to us that the better reasoning is on the side of those which hold that since the married woman’s Jaw necessarily destroys the legal unity — the oneness — of husband and wife, the reason for the common-law rule 'ceases to exist. The right of the husband at common law to'the wife’s personal property and dioses in ■ action, the right to hold and enjoy the rents and profits of her real estate, the right to her earnings, are taken away by the statute. The' acts of 1869 and 1874 provided, prior to the conveyance to Henry F. Blount and Lucia E. Blount, his wife, that a married woman’s right to property acquired by her during marriage should be as- absolute as if she were unmarried. It provided that she could convey or devise .her property, qr any interest therein, as if she were unmarried. The Supreme Court *345held that she could devise property that came to her from her husband. *Hamilton*v. Rathbone, *supra.*It was pertinently asked in *Hoffman*v. Stigers, *supra,*“ If she may take title in her own right and may convey as other persons, what becomes of the idea of legal unity ? ” If by the mention of the name of her husband as a grantee, she takes no interest, though “ *seised per tout”*until the husband die and she survive him, what effect is given to the statute providing that her right to property acquired *“*shall be as absolute as if she were unmarried?” See *Thompson*v. Thompson, 218 U. S. 611, 615. Certainly the husband thought they were joint owners of the property, because he undertook to devise it to the wife, and she thought he was a joint owner, because she returned a one-lialf interest for taxation. We content ourselves with citing some cases sustaining the view that the married woman’s law defeats estates by the entirety, in the absence of express terms in the conveyance to husband and wife. *Clark*v. Clark, 56 N. H. 105; *Hoffman*v. Stigers, 28 Iowa 307; *Cooper*v. Cooper, 76 Ill. 57; *Walthall*v. Goree, 36 Ala. 728; *Wilson*v. Fleming, 13 Ohio 68; *Whittlesey*v. Fuller, 11 Conn. 337; *Kerner*v. McDonald, 60 Nebr. 669; see also *In re*Klatzl, 216 N. Y. 83, and *Buttlar*v. Rosenblath, 42 N. *J.*Eq. 651.

In somp of-the States where it is held that the married woman’s acts do not- abrogate the common-law doctrine of tenants by the entirety, it is also held that these acts do affect the right of the husband to the rents and profits from the estate during coverture. They hold that the wife is endowed with the capacity during the joint lives to hold in her' possession, as a single female, one-half the estate in common with her husband. See *Buttlar*v. *Rosenblath,*42 N. J. Eq. 651, 657; *In re Klatzl, supra.*

, I-h our opinion it is important to determine the character •of the estate held by the parties in order to determine the amount of the tax. If the estate conveyed to the husband and wife was a joint estate, the tax would apply to the one-lialf interest of the husband, whether the transfer of that interest was effected by the rule of survivorship applicable *346to joint estates or was effected by the husband’s last will and testament.

On the other hand, if the estate of the husband and wife was tenancy by the entirety with all the incidents of such an estate at common law, then nothing was transferred to the wife by the husband’s will or ‘by her mere survivorship because she took the entire estate under-the original grant'. See *Palmer*v. *Mansfield,*222 Mass. 263; *Matter of Lyon,*233 N. Y. 208; *Brihl*v. *Martin,*263 Pa. 519. It was said in *Hunt*v. *Blackburn,*128 U. S. 464, 469: Undoubtedly, at common lavq husband and wife did not take under a conveyance to them of land'jointly, as tenants in common or as joint tenants, but each became seized of the entirety *per tout et non per my*— ^the consequence of which was that neither could dispose of any part without the assent of the other, but the whole remained to the survivor under the original grant.” In express terms the tax is imposed by section 201 upon “ the transfer of the net estate of every decedent.”' See *Woodward case,*256 U. S. 632. It is an estate tax, imposed not upon the gross estate but upon the net estate transferred, and rules for the ascertainment of the amount of this net estate are prescribed. See *Woodward case,*56 C. Cls. 133, 150. In view of the plain language of the statute we need not consider the refinements as to “ death duties ” suggested by the Government’s contention. In a late case it is said that what this law taxes is not the interest to which legatees or devisees succeeded on death, but the interest of the decedent which ceased by reason of his death. See *Y. M. G. A.*v. *Davis,*264 U. S. 47. But this does not mean that the tax is upon an *estate*which ceases by reason, of the death. It would hardly be contended that this statute imposes a tax on an estate for life held by one at the time of his death on the theory that the tax is upon an interest which ceases by reason of the death. It was said by Mr. Justice White, in *Knowlton*v. *Moore,*178 U. S. 41, 57: “ Confusion of thought may 'arise unless it be always remembered that, fundamentally considered, it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.” *347Tlie tax liere is upon the transfer of an estate which passes from the decedent, and is not upon an estate which ceases with his death. See *Knowlton*v. Moore, *supra; Lederer*v. *Northern Trust*Co., 262 Fed. 52, 54; *New York Trust Co. v.*Eisner, 256 U. S. 345; *Woodward case,*su*pra.*It follows that the tax 'should not be assessed against the estate of tenants by the entirety because the wife did not take as upon a transfer from the husband at his death, but took under the original grant, his estate ceasing. We think it doubtful whether subdivision (c) of section 202 contemplates estates by the entirety in their technical sense. It speaks of an interest held jointly, or as tenant in the entirety by the decedent, “ and any other person.” Only an estate held by the husband and wife could be held by the entirety. It seems to us this language applies to an interest that passes as part of the estate; that is, an estate held jointly or *per my et per*tout, by the moiety and by the whole. Giving-effect to the stipulation as to the character of the estate, the plaintiff should recover the amount of the tax collected by the commissioner upon the lands conveyed to the husband and wife, except as it is affected by her return. The act of 1916 is not retrospective. See *Knox*v. McElligott, 258 U. S. 546. On the other hand, treating the tenancy as a joint tenancy, the one-lialf interest of the husband passing to the -wife, the tax upon that interest was paid upon the tax return made by the ivife. As already stated, the plaintiff returned for taxation a one-half interest in the lands as having been held “by the decedent as a joint tenant,” and having paid the tax on this one-half interest voluntarily and Avithout protest she can not now recover the same. It folloAvs that plaintiff is entitled to recover the additional tax levied by -the commissioner on the land in question.

Judgment for plaintiff in the sum of $2,425.06, with interest from March 7, 1921, to March 3, 1924, amounting to $434.49, making a total of $2,859.55. And it is so ordered.

GRAHAM, *Judge;*Hay, *Judge;*DowNey, Judge, and Booth, Judge, concur.