#### ANNA WOERISHOFFER AND LEWIS CASS LED-YARD, AS EXECUTRIX AND EXECUTOR OF THE LAST WILL AND TESTAMENT OF OSWALD OTTENDORFER, DECEASED, v. THE UNITED STATES.1

[No. 33182.

Decided June 4, 1923.]

*On the Proofs.*

*War revenue act of 1898; vesting of legacies; administration.*— The tax provided for by the war revenue act of June 13, 1898, 30 Stat. 448, is a succession tax imposed on the transmission of personal property from a deceased owner to legatees or dis-tributees, and such property passes primarily to the executor or administrator, who, after the settlement of the estate, transfers it to the legatees or distributees; and when in the due course of the administration of an estate it has been ascertained, prior to July 1, 1902, that a surplus remains after payment of all legal -debts of the estate, such surplus becomes vested in such legatees or distributees in possession or enjoyment within the meaning of the act of 189S, and is properly taxable thereunder.

*The Reporter’s*statement of the case:

*Mr. Harry T. Newcomb*for the plaintiffs.

*Messrs, Fred K. Dyar*and *H. M.*Darling, with whom was *Mr. Assistant Attorney General Robert II.*Lovett, for the defendant. *Mr. Garl A. Mapes*was on the briefs.

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

I. On December 14, 1900, Oswald Ottendorfer, a citizen of the United States and of the State of New York, and a resident of the city of New York, in said State, died, leaving a valid last will and testament, dated May 22, 1891, and codicils thereto of dates May 25, 1892, November 29, 1897, and October 30, 1900, all which were thereafter, on March 28, 1901, duly admitted to probate and record by the surrogate’s court in and for the county of New York, in said State, and letters testamentary duly issued to Anna Woerish-offer and Lewis Oass Ledyard, plaintiffs herein, and to

*411Julius W. Brunn, who were therein named as executrix and executors, they having accepted said trust. Said executrix and executors duly qualified and entered upon their duties as such. Said Julius W. Brunn has since deceased, leaving the plaintiffs as surviving executrix and executor of the will.

II. Said last will and testament provided, among other things, as follows:

“ Second. I give and bequeath unto my stepdaughter, Emma Sehalk, for her sole and separate estate, the sum of one hundred thousand dollars.

“ Third. I give and bequeath unto my stepdaughter, Ma-thilde Riedl von Riedenstein, for her sole and separate estate, the sum of one hundred thousand dollars.

“ Fourth. I give and bequeath unto my stepdaughter, Anna Woerishoff'er, for her sole and separate estate, the sum of one hundred thousand dollars.”

“ Twelfth. I give and bequeath unto my stepdaughter, Anna Woerishoffer, one share of the capital stock of the .New Yorker Staats Zeitung.

“ Thirteenth. I give and bequeath all other shares of the capital stock of the said New Yorker Staats Zeitung which may belong to me at the time of my death, and all my right, title, and interest in and to a certain contract with Herman Ridder for the sale to the said Ridder of shares of the capital stock of the said New Yorker Staats Zeitung, and all my right, title, and interest in the consideration which at the time of my death may remain to be paid by the said Herman Ridder, unto my said three stepdaughters Emma Sehalk, Mathilde Riedl von Riedenstein, and Anna Woer-ishoffer, or such of them as shall survive me, share and share alike.”

“ Twenty-sixth. I give and bequeath unto my housekeeper, Eleanora Stabler, the sum of ten thousand dollars.”

In the codicil of May 25, 1892, is was provided:

“ First. I hereby revoke the first article of my said will, whereby I disposed of all my household furniture, both ■useful and ornamental, china, glass, silver, books, paintings, pictures, engravings, wearing apparel, jewelry, horses, carriages, harnesses, and articles of stable equipment or furniture ; and I do hereby give and bequeath all the above enumerated articles and property unto my stepchildren, Edward Uhl, Emma Sehalk, Mathilde Riedl von Riedenstein, and Anna Woerishoff'er.”

*412And in the codicil of November 29,1897, it was provided:

“ Sixth. I give and bequeath unto Eleanora Stabler, mentioned in the twenty-sixth article of my said will, an additional sum of ten thousand dollars, thus increasing her legacy to the total sum of twenty thousand dollars.”

“ Ninth. I give and bequeath unto Annibel, Baroness von Leitenberger, daughter of my stepdaughter, Mathilde Riedl von Riedenstein. the sum of thirty thousand dollars.”

“ I give and bequeath tinto Antoinétte Woerishoffer, daughter of my stepdaughter, Anna Woerishoffer, the sum of thirty thousand dollars.”

“ I give and bequeath unto Emma Carola Woerishoffer, daughter of my stepdaughter, Anna Woerishoffer, the sum of eighty thousand dollars.”

“ Twelfth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, mentioned in the said thirty-first article of my will, that is to say, all the residue thereof which shall remain after carrying out the provisions of my said will as modified by this codicil and my former codicil, share and share alike unto such of my stepdaughters, Emma Schalk, Mathilde Riedl von Riedenstein, and Anna Woeri-shoffer, as shall survive me, and the issue me surviving of any of them who may have died before me, such issue of any deceased stepdaughter to take per stirpes and not per capita the share which, the parent so dying would have taken had she survived me.”

Said will and codicils also provided that all succession, legacy, or inheritance taxes that should be due or payable by law on any legacy passing under said will or codicils should be deducted from and paid out of the residuary estate, so that all legatees should receive their legacies free of all such taxes.

III. Sections 1819, 2718, 2721, 2722, and 2723 of the Code of Civil Procedure of the State of New York were in force at the time of the decease of the said Oswald Ottendorfer, and thereafter until July 1, 1902, and for a considerable period after said date, and the said sections, with the omission of a portion of section 2718 that is not material to this case, are as follows:

“ SectiON 1819. If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within *413which such an action must be commenced the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before.”

“ Section 2718. The executor or administrator at any time after the granting of his letters may insert a notice once in each week for six months in such newspaper or newspapers printed in the county as the surrogate directs requiring all persons having • claims against the deceased to exhibit the same, with the vouchers therefor, to him, at a place to be specified in the notice, at or before a day therein named, which must be at least six months from the day of the first publication of the notice. * * * If a suit be brought on a claim which is not presented to the executor or administrator within six months from the first publication of such notice, the executor or administrator shall not be chargeable for any assets or moneys that he may have paid in satisfaction of any lawful claims, or of any legacies, or in making distribution to the next of kin before such suit was commenced.”

“ Section 2721. No legacy shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless directed by the will to be sooner paid. If directed to be sooner paid, the executor or administrator may require a bond, with two sufficient sureties, conditioned, that if debts against the deceased duly appear, and there are not assets to pay the samé, and no other assets sufficient to pay other legacies, then the legatees will refund the legacy so paid, or such ratable portion thereof with the other legatees, as may be necessary for the payment of such debts, and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee, and that if the probate of the will, under which such legacj' is paid, be revoked, or the will declared void, that such legatee will refund the whole of such legacy, with interest, to the executor or administrator entitled thereto. After the expiration of one year, the executors or administrators must discharge the specific legacies bequeathed by the will and pay the general legacies, if there be assets. If there are not sufficient assets, then an abatement of the general legacies must be made- in equal proportions. Such payment- shall be enforced by the surrogate in the same manner as the return of an inventory, and by a suit on the bond of such executor or administrator whenever directed by the surrogate.”

“ Section 2722. In either of the following cases a petition may be presented to the surrogate’s court praying for a decree directing an executor or administrator to pay the

*414petitioner’s claim, and that he be cited to show cause why such a decree should not be made:

“ 1. By a creditor for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted.

“ 2. By a person entitled to a legacy or any other pecuniary provision under the will, or a distributive share, for the payment or satisfaction thereof, or of its just proportional part, at any time after one year has expired since letters were granted.

“ On the presentation of such a petition, the surrogate must issue a citation accordingly, and on the return thereof he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner:

“ 1. When an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity and legality .absolutely, or on information and belief.

“2. Where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.”

“ SectioN 2723. In a case specified in subdivision second of the last, section, the surrogate may, in his discretion, entertain the petition at any time after letters are granted, although a year has not expired. In such a case, if it appears on the return of the citation, that a decree for payment may be made, as prescribed in the last section, and that the amount of money and the value of the other property in the hands of the executor or administrator applicable to the payment of debts, legacies, and expenses exceed by at least one-third the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner’s claim and of all legacies and distributive shares of the same class, and that the payment or satisfaction of the legacy, pecuniary provision, or distributive share, or some part thereof, is necessary for the support or education of the petitioner, the surrogate may, in his discretion, make a decree directing payment or satisfaction accordingly, on the filing of a bond, approved by the surrogate, conditioned as prescribed by law. with respect to a bond which an executor or an administrator with the will annexed may require from a legatee, on payment or satis-

*415faction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that effect contained in the will.”

IY. Of the persons named as legatees in the portions of his said last will and testament and codicils set forth in Finding II, the said Oswald Ottendorfer left surviving him the following: Annibel, Baroness von Leitenberger; Edward Uhl, Antoinette Woerishoffer, Emma Carola Woerishoffer, Eleanora Stabler, Emma Schalk, Mathilde Biedl von Rieden-stein, and Anna Woerishoffer, all of which legatees were strangers in blood to him.

Y. Pursuant to an order of the surrogate’s court entered on May 8, 1901, the executors published the statutory six-month notice to all creditors of the estate requiring them to file their claims with the executors on or before November 16, 1901.

All specific legacies and the greater portion of the residuary legacies provided for in said will and codicils were distributed by the executors before July 1, 1902, each of the three residuary legatees, Emma Schalk, Mathilde Riedl von Riedenstein, and Anna Woerishoffer, receiving, on or about December 28, 1901, cash and securities amounting in value to $910,000, after which there remained in the hands of the executors of the residuary estate upward of $500,000 in cash, together with a large amount of securitiés.

No further or complete distribution of the residuary estate was made by the executors until after July 1, 1902, because they anticipated that the estate would be liable for payment of a New York estate transfer tax and the Federal inheritance tax, together with attorneys’ fees and other expenses of administration of the estate, and the exact amount of the residuary estate that would be left for distribution, therefore, could not be definitely determined prior to July 1,1902.

VI. On March 7, 1902, the plaintiff, Lewis Cass Ledyard, as executor, filed an affidavit in the surrogate’s court to which were attached schedules containing a description of all the property owned by the testator at his death, which had come to the knowledge of said executor, together with the estimated value of the personal property at that time, and also the range of quotations of decedent’s stocks and *416bonds for a period of three months preceding his death; also statements of the decedent’s debts, payments for administration expenses, the estimated commissions of the executors and future administration expenses, and the names and addresses of the legatees, with descriptions of their respective legacies. On June 5, 1902, the appraiser appointed by the surrogate’s court filed his report appraising the property of the decedent, and on July 16, 1902, the surrogate entered this order assessing the New York State inheritance tax on the property of the decedent.

VII. The personal property constituting part of the assets of the estate, which passed to the executors, included a large number of bonds and shares of the capital stock of railroad and other corporations the aggregate par or face value of which amounted to approximately $3,260,748.89. The said bonds were obligations or promises to pay secured upon the property of many different corporations, and the said shares of capital stock represented the ownership and the equitable ownership of many different properties.

VIII. The actual or clear value of each of said bonds and shares of capital stock was variable and subject to wide fluctuations, and in the case of most of them it was different from the par or face value thereof. The actual or clear value of said bonds and shares of stock and of other assets of said estate could not be determined except by inquiry and investigation and the consideration of evidence thereon.

IX. The “ capital stock of the New Yorker Staats Zei-tung,” bequeathed by the twelfth and thirteenth paragraphs of said will, and the “ certain contract with Herman Kidder,” bequeathed by the said thirteenth paragraph, were, respectively, shares in a corporation owning the New Yorker Staats Zeitung and a contract with one Herman Kidder to purchase some of the shares of the same corporation. The New Yorker Staats Zeitung is a daily newspaper published in the German language in the city of New York; Herman Kidder was financially embarrassed when this contract was made; the value of this contract was problematical on December 14,1900, and at all times thereafter until July 1,1902; it was necessary to revise this contract repeatedly on account of Herman Kidder’s financial difficulties, and the value of *417this contract depended at all times upon the ability of the said Herman Kidder to make the Staats Zeitung earn a profit above its necessary expenses. Oswald Ottendorfer at the time of his decease owned only one of the shares of the capital stock of said corporation, and therefore none of the shares thereof passed under the said thirteenth paragraph of the will.

The bequests to the residuary legatees of equal interests in said contract were specific bequests and did not form part of the residuary estate.'

X. In the distribution of the estate by the executors, the said residuary legatees, Emma Schalk, Mathilde Kiedl von Kiedenstein, and Anna Woerishoffer, on December 28, 1901, received distributions, on account of specific and residuary requests, as follows:

Emma Schalk received thes um of $12,380 in cash and certain securities of a par value of $828,000, which were valued and charged to her by the executors at New York Stock Exchange market values in the sum of $897,620. And subsequently to July 1, 1902, during the years 1902, 1903, 1905, and 1908, she received, on account of the residuary estate, additional cash distributions amounting to $210,953.66.

Mathilde Kiedl von Kiedenstein received the sum of $751,600 in cash, and securities of a par value of $157,500, which were valued and charged to her by the executors at New York Stock Exchange market values, in the sum of $158,400. And subsequently to July 1,1902, during the years 1902,1903, 1905, and 1908, she recived additional cash distributions, amounting to $210,953.66, on account of the residuary estate.

Anna Woerishoffer received $6,898 in cash, and securities of a par value of $832,000, which were valued and charged to her by the executors at New York Stock Exchange market values, in the sum of $903,102. And subsequently to July 1, 1902, during the years 1902, 1903, 1905, and 1908, she received additional cash distributions amounting to $210,953.65, on account of the residuary estate.

Almost all of the said securities distributed to said residuary legatees were allotted by the executors and accepted by the legetees at values differing from their par, or face, values.

*418XI. No order was entered or requirement made by any court or officer of probate, nor by any other court, prior to or on July 1, 1902, requiring the payment or distribution by the executors of any further portion or portions of the residuary estate in addition to the distribution made to said residuary legatees on December 28, 1901, shown by Finding X.

XII. Pursuant to the war revenue act of June 13, 1898 30 Stat. 448, and amendments thereto, the executors of said estate prepared and executed a schedule or return of legacies arising from said estate which was filed by the executors with the Commissioner of Internal Revenue on November 7, 1902. In this return the taxable legacies, with the rates and amounts of tax thereon, were given as follows, all of the legatees being strangers, in blood, to the testator:

Annibel, Countess von Leitenberger: Legacy, $30,000; rate,

$7.50 per $100; tax_ $2,250. 00

Antonette, Countess Seilern: Legacy, $30,000; rate, $7.50

per $100; tax_ 2,250. 00

fimma Carola Woerislioflier: Legacy, $80,000; rate, $7.50

per $100; tax- 6, 000. 00

Elenora Stabler: Legacy, $20,000; rate, $5.00 per $100;

tax_ 1, 000. 00

Emma Schalk: Legacy, $1,176,869.80; rate, $15.00 per

$100; tax___ 176,530.47

Mathilde Riedl von Riedenstein: Legacy, $1,226,730.99;

rate $15.00 per $100; tax_ 184,009.65

In said return the total appraised value of the personal property of the estate was given as $4,371,947.90 and the total amount of legal debts and expenses for which the personal property was liable as $298,646.12.

.Said legacy return was examined and approved and an assessment made thereon by the collector of internal revenue on or about December 10, 1902; and.on the same day the amount of tax indicated in said return as being due, $556,495.27, was paid by the executors without protest. No legacy tax was assessed by the Commissioner of Internal Revenue prior to July 1, 1902, on any of the legacies passing under said will and codicils. •

XIII.The values assigned by the Commissioner of Internal Revenue, for the purpose of legacy-tax assessment, *419to the various stocks and bonds distributed by the executors to the residuary legatees were the same values assigned thereto by the executors in their said legacy-tax return to the commissioner of November 7, 1902, which values for the most part were arithmetical averages of New York Stock Exchange prices or quotations on similar stocks and bonds during the three-month period immediately preceding the testator’s decease. These values were in most instances different from the par or face values of such stocks and bonds and were also in most instances different from the values assigned thereto by the.executors in their distribution of them to the residuary legatees as a part of the residuary estate.

XIV. On the basis of the values assigned by the Commissioner of Internal Revenue to the stocks, bonds, and other securities of the estate distributed by the executors to the residuary legatees, the totals of the distributions received by said legatees prior to July 1, 1902, were as follows: Emma Schalk, $979,268.22; Mathilde Riedl von Rieden-stein, $991,655.40; Anna Woerishoffer, $969,572.30.

XV. On December 11, 1913, an affidavit executed by one H. T. Newcomb, as attorney for said Lewis Cass Ledyard, one of said executors, was filed with and received by the collector of internal revenue for the third district of New York, in which affidavit a refund for the whole tax paid, as aforesaid, was demanded on the ground that it had been illegally and wrongfully collected.

Said affidavit and claim for refund were on January 20, 1914, examined by the Chief of Claims Division, Office of Internal Revenue, and by him submitted for allowance for the sum of $12,786.83, and for rejection of the remaining $543,708.44. the sum of $12,786.83 being recommended for allowance to correct an error due to an overvaluation, in the return and assessment, of certain railroad stock belonging to the estate. The claim was on January 21, 1914, examined by the Committee on Claims, Office of Internal Revenue, and the allowance of $12,786.83 and rejection of $543,708.44 approved. On the latter date, January 21,1914, said claim was by the Commissioner of Internal Revenue recommended for allowance of $12,786.83 and for rejection for $543,708.44, and *420this recommendation was on said date approved by the Secretary of the Treasury and the' $12,786.83 allowed was paid to the executors of the estate.

XVI. At the time of the partial distribution of the residuary estate on December 28, 1901, all the debts of the estate had been paid, except the costs and expenses of administration and the State and Federal legacy taxes.

At the time the plaintiffs’ petition was filed in this court assets still remained-which were subject to administration, and the executors had not filed a final account. Up to the time when the evidence was taken in this case the residuary estate had not been fully administered; additional cash to the amount of $48,000 and other assets still remained subject to administration in accordance with the will and codicils, and no final accounting had yet been made or could have been made by the executors.

1

 Appealed.

Geaham, Judge,

delivered the opinion of the court:

This is an action to recover a legacy tax alleged to have been erroneously assessed and collected under the provisions of section 29 of the act approved June 13, 1898, 30 Stat. 448, and certain acts amendatory thereof. The petition was filed January 26, 1916, nearly 15 years after the commencement of the administration of the estate and about as long after the time for presenting claims against it.

Defendant demurred to the plaintiffs’ petition, and the court entered the following order on March 12,1917:

> “ The within demurrer is overruled without prejudice; but it is ordered that no testimony be taken herein except upon the question of the amount of the residuary legacies not distributed until after July 1, 1902.”

Thereafter evidence was taken.

The plaintiffs’ requests for findings of fact and brief were filed on January 17, 1918. On March 20, 1918, proceedings in the case were suspended upon a showing to the court that one of the plaintiffs, Anna Woerishoffer, was held to be a German subject and an alien enemy, and the case was remanded to the general docket. On November 14, 1921, a treaty of peace having been ratified between the German Government and the Government of the United States, the *421President- of the United States issued a proclamation declaring that the war between the two countries terminated on July 2, 1921. Thereupon, the case came on to be heard in regular course.

The testator, Oswald Ottendorfer, died on December 14, 1900, being at the time a resident of the State of New York, leaving a last will and testament, dated May 22, 1891, and codicils dated May 25,1892, November 29,1897, and October 30, 1900, all of which were admitted to probate and record on March 24, 1901, on which daté letters testamentary were granted to Anna Woerishoffer, Lewis Cass Ledyard, and Julius W. Brunn (since deceased), by the surrogate’s court in and for the county of New York, in said State. By said last will and codicils the testator made various specific bequests and left all of the residue of his estate share and share alike to three stepdaughters, Emma Schalk, Mathilde Biedei von Biedenstein, and Anna Woerishoffer.

Annibel, Baroness von Leitenberger, Edward Uhl, Antoinette Woerishoffer, Emma Carola Woerishoffer, Eleanora Stabler, Emma Schalk, Mathilde Biedl von Biedenstein, and Anna Woerishoffer, legatees named in said will, survived the testator and were strangers in blood to him.

Said will and codicils also provided that all succession, legacy, or inheritance taxes that should be due or payable by law on any legacy passing under said will or codicils should be deducted from and paid out of the residuary estate, so that all legatees should receive their legacies free of all such taxes.

By an order of the surrogate’s court entered on May 8, 1901, the executors published the statutory six-month notice to creditors of the estate requiring them to file their claims with the executors on or before November 16,1901.

The plaintiffs alleged in their petition that due to the character of the assets of the estate and circumstances of necessity controlling the administration and proceedings in the surrogate’s court regarding the basis for determining the value of certain of the assets, it was impossible on or before July 1, 1902. to determine the clear actual net value of said assets or of the residuary estate, or the actual or clear value of the legacies to be derived from the latter.

*422A part of the assets consisted of- personal property which included a large number of bonds and shares of the capital stock of railroads and other corporations, the total par or face value of which bonds and shares of stock amounted to $3,260,748.89, while the actual clear value of most of these bonds and shares of stock was not the same as the par or face value, and this actual clear value could not be determined except by inquiry and investigation and the consideration of evidence thereon. Among the assets were certain capital stock of the New York Staats Zeitung, a daily newspaper published in the city of New York, and a certain contract with Herman Kidder, who was financially embarrassed when this contract was made. The value of this contract was uncertain and problematical on December 14, 1900, and at all times thereafter until July 1, 1902. The value of the contract depended at all times upon the ability of Kidder to make said newspaper earn a profit above its necessary expenses. The contract was a specific bequest to the residuary legatees of equal interest in said contract and did not form part of the residuary estate.

Prior to July 1, 1902, the executors paid all of the legacies except those springing from the residuary estate and each of the residuary legatees prior to that date received securities which the legatees accepted at certain values, and these added to the cash paid each legatee made a total payment to each legatee of $910,000.

No further or complete distribution of the'residuary estate was made by executors until after July 1, 1902, for the alleged reason that the estate would be liable for payment- of a New York State transfer tax and Federal inheritance tax, together with other expenses and fees of administration of the estate, and that the exact amount of the residuary estate which would be left for distribution for. this reason could not be determined prior to July 1, 1902.

On March 7, 1902, the plaintiff, Lewis Cass Ledyard, as executor, filed an affidavit in the surrogate’s court to which were attached schedules containing a description of all the property owned by the testator at his death, which had come to the knowledge of said executor, together with the estimated value of the personal property at that time, and also *423the range of quotations of decedent’s stocks and bonds for a period of three months preceding his death; also statements of the decedent’s debts, payments for administration expenses, the estimated commissions of the executors and future administration expenses, and the names and addresses of the legatees, with descriptions of their respective legacies. On June 5, 1902, the appraiser appointed by the surrogate’s court filed his report appraising the property of the decedent, and on July 16, 1902, the surrogate entered his order assessing the New York State inheritance tax on the property of the decedent.

Pursuant to the act of June 13, 1898, 30 Stat. 448, and amendments thereto, the executors of said estate prepared and executed a schedule or return of legacies arising from said estate, which was filed by them with the Commissioner of Internal Revenue on November 7, 1902, stating taxable legacies with rates of tax thereon. In said return the total appraised value of the personal property of the estate was given as $4,371,947.90 and the total amount of debts and expenses for which the personal estate was liable at $298,446.12. This return was examined and approved and assessment made thereunder by the collector of internal revenue on the 10th day of December, 1902. On the same day the amount of tax indicated in said return as being due, namely, $556,495.27, was paid by the executors without protest. No legacy tax was assessed by the collector of internal revenue prior to July 1, 1902, on any of the legacies arising under said will and codicils. The values assigned by thfe Commissioner of Internal Revenue for the proposed legacy-tax assessment to the various stocks and bonds distributed by the executors to the residuary legatees were the same values assigned thereto by the executors in their said legacy-tax return of November 7,1902.

The issues involved here are:

Was the tax here collected imposed under section 29 of the act of June 13, 1898, and amendments thereof prior to the taking effect of the act of April 12, 1902, though no assessment was made until after July 1, 1902, at which date the former act took effect?

*424If the tax was *“*imposed,” there arises a further question whether the assets paid to the residuary legatees prior to July 1, 1902, in part satisfaction of the residuary legacies vested in said legatees in possession or enjoyment prior to July 1, 1902, under the provisions of section 3 of the act of June 27, 1902.

There is the further question, where the required time has elapsed to give the legatees and distributees a right to demand payment of their legacies and where the assets within the lands of the executors are amply sufficient to pay all known liabilities, including expenses of administration, State and Federal taxes, attorneys’ fees, etc., whether the fact that these liabilities were not definitely and finally determined on July 1, 1902, and that other liabilities might arise subsequently to that date is of itself sufficient to convert the legatees’ right to the property in the hands of the executors into a contingent interest, though otherwise it would be an interest vested in enjoyment and possession, and subject, therefore, to tax under section 29 of the act of June 13, 1898.

The one year within which executors were allowed by the statute of New York for settling said estate before the right to demand payment of legacies by legatees expired on the 24th day of March, 1902.

The six-month period for presentation of claims expired on November 16, 1901, and the only claims upon the estate so far as was known remaining to be paid on July 1, 1902, were the New York State transfer tax, the Federal inheritance tax, together with attorneys’ fees and other expenses of administration.

Subsequent to July 1, 1902, and during the years 1902, 1903, 1905, and 1908 Emma Schalk received on account of the residuary estate cash distributions amounting to $210,-953.66, and Mathilde Eiedl von Kiedenstein received during the same years similar cash distributions to the same amount, and Anna Woerishoifer received cash distributions amounting to $210,953.65, a total of $632,860.97.

This is not a case of resistance to the payment of a tax, but a suit for the recovery of taxes voluntarily paid, and the

*425illegality of them should be shown not only by averment but by proof — not by assertion and speculation.

It is unnecessary to review the provisions of the act of June 13, 1898, 30 Stat. 448, and the effect thereon of the repealing act of April 12, 1902. Suffice it to say that where there was a “ liability ” existing under the former act at the time of the passage of the repealing act such liability was not affected by the latter and that a tax imposed prior to the passage of the repealing act was such a liability. *Hertz*v. *Woodman,*218 U. S. 205.

The latter case also held that a tax is imposed when a legacy vests in possession or enjoyment and that upon the passing by death of a vested right to the immediate possession or enjoyment of the legacy or distributive share there was imposed a tax or duty upon every such right of succession, and that this tax or duty was saved by the saving clause of the repealing act of April 12, 1902.

It is not disputed that a tax may be imposed without assessment and an assessment is not a prerequisite to the imposition of a tax. While some taxes may require assessment and may not be collected until assessed, this does not prevent Congress from imposing a legacy tax until after it has been assessed. If the act imposed a tax, an assessment is a matter of routine which does not alter the effect of its imposition. To impose a tax means to levy it. The imposition of the tax and its maturity are distinct and separate things. It is well known that it is not customary to make a tax due and enforceable upon the day of its imposition. *Cochran*v. *United*States, 254 U. S. 387, 391; *Westus*v. *Union Trust*Co., 164 Fed. 795.

The tax is on the right of succession, and when by death there passes a vested right to the immediate possession or enjoyment of a legacy or distributive share there is imposed a tax under the act of June 13, 1898. *Hertz*v. *Woodman, supra.*So that it follows that the tax collected in this case was imposed under section 29 of the act of June 13, 1898.

We next approach the question of whether under the terms of this will the property transferred to the residuary legatees prior to July 1, 1902, in partial satisfaction of their residuary legacies vested in possession and enjoy*426ment prior to July 1, 1902, under the terms of section 3 of the act of June 27, 1902. Said section of that act provided as follows:

> “ * * * the Secretary of the Treasury be, and he is hereby, authorized and directed to refund * * * so much of said tax as may have been collected on contingent beneficial interests which shall not have become vested prior to July first, nineteen hundred and two.”

Said act further prohibits the assessment or imposition of any tax under the act of June 13, 1898, upon — ■

> “ * * * any contingent beneficial interest which shall not become absolutely vested in possession or enjoyment prior to said July first, nineteen hundred and two.”

> “ Vested in possession and enjoyment ” has the same meaning as the' word “ vested.” *United States*v. Jones, 236 U. S. 106; *MoCoach*v. Pratt, 236 17. S. 562, 566.

A contingent interest is one thing and a vested interest subject to divesture is another. The law uses familiar legal expressions in their familiar legal sense, and the distinction between a contingent interest and an interest subject to be divested is familiar to the law. As to that part of the property transferred by the executors prior to July 1,1902, to the residuary legatees, there can he no question under the decisions that it vested in possession and enjoyment prior to July 1, 1902. *Ilenry*v. *United States,*251 TJ. S. 393; *Cochran*v. *United*States, *supra.*See also *Tifany*v. *United States,*Court of Claims No. 33685.

We next approach the question of whether the amount of residuary legacies distributed after July 1, 1902, is subject to tax.

It will be seen that the residuary legacies here were vested in possession or enjoyment; that a vested legacy subject to divesture is not a contingent interest. But, aside from this, under the statute of New York if a year had expired from the commencement of the administration — and here it expired March 24, 1902 — the legatees have a right to demand and proceed for collection of their legacies. During this period executors have the right to withhold payment, so that prior to July 1,1902 there is no doubt about the interest being vested and the liability of the executors to pay the lega*427cies, provided tliere were sufficient funds in hand with which to do it.’ It is admitted that sufficient funds were in hand, and that all of the known debts except as heretofore stated had been paid and the time for filing claims had expired nearly nine months before, and that the only known debts and liabilities were the State and Federal taxes, attorneys’ fees, and certain expenses of administration. The fact that these had not been detei'mined .and that the sum necessary to meet them had not been fully and exactly ascertained is not sufficient to turn into a contingent interest an interest which is already vested in enjoyment and possession and therefore subject to tax under the act of June 13, 1898. Tire mere fact that the executors concluded to keep a fund on hand to meet certain unknown chances or claims that might arise can not of itself divest this vested interest of the legatees nor turn it into a contingent interest.

This court said in *Carleton*v. *United*States, 51 C. Cls. 60, 65:

> “ * * * in order to make a legacy taxable under it, it is only necessary that it should pass out of the hands of the executors into the possession or enjoyment of the legatees named, subject to no contingency or reservation.”

These legacies under the will were subject to no contingencies or reservations.

That, there were abundant funds to meet all these unpaid obligations is shown by the fact that after the 1st of July, 1902, the executors distributed to the residuary legatees the sum of $632,860.97. So it is apparent that there were abundant assets in hand to pay these legacies on the 1st of July, 1902, and a mere precautionary state of mind of the executors as to future uncertainties is clearly not enough to turn this vested interest of the, legatees into a contingent one. *Simpson*v. *United States,*252 U. S. 547. The illegality of the tax has not been proved.

It follows that the interest of the residuary legatees here was legally assessed and the tax thereon legally collected and that the plaintiffs can not recover. The petition should, be dismissed, and it is so ordered.

Hat, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief Justice,*concur.