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Opinion of the Court

successfully set up that matter by plea to the scire facias. Thatcher v. Rockwell, 105 U. S. 467, was a case where, after suit brought, the plaintiff was adjudged to be a bankrupt, and assignees were appointed, and it was held that the bankruptcy of the plaintiff could not be set up by the defendants to bar its further prosecution in his name, this court saying: “It is no defence to the debt that the creditor has become a bankrupt; and if an assignee, after notice, permits a pending suit to proceed in the name of the bankrupt for its recovery, he is bound by any judgment that may be rendered. This is a sufficient protection for the debtor."

In the present case, Leeds, the assignee in bankruptcy; ratified the action of the executrix, by making himself a party to the proceedings and procuring a decree compelling her to transfer the judgment to him as an asset of the bank. rupt's estate. By that feature of the decree Brown is pro tected from any danger of being compelled to pay twice.

If, then, the original judgment was regularly obtained, was duly revived by lawful proceedings, and is now made payable, by the decree of the court below, to the party legally entitled to receive the same, no reason is presented by this record why this court should disturb that decree. Equity refuses to re liere from a judgment unless substantial merits are shown.

It is true that the appellant undertook to show that he had a meritorious defence to the suit as originally brought, by certain allegations made in a petition to the Supreme Court of the District of Columbia filed after tbe final decree hai been entered against him. We are not obliged to notice allegations made at such a late period in the proceedingsnot made, indeed, till the controversy had been finally closed. Horrever, we have read this petition, and it is sufficient to say that it contains nothing which, even if true and if made to appear during the trial of the present case, would have justified any change in the decree.

The decree of the Supreme Court of the District of Columbia is

Afirmed.

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Opinion of the Court.

UNITED STATES v. PERKINS.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 422. Submitted May 8, 1896. - Dodded May 25, 1696.

Personal property, bequeathed by wil to the United States, is subject to an

inheritance tax under state law. Under the statutes of New York the United States are not a corporation,

exempted from such inberitance tax.

This was a writ of error to an order of the General Term of the Supreme Court, affirming an order of the Surrogate's Court of Suffolk County, assessing an inheritance tax of $3964.23 upon the personal property of William W. Merriam, bequeathed by him to the United States.

It appeared that Merriam, who was a resident of Suffolk County, died on January 30, 1889, leaving a last will and testament, by which he devised and bequeathed all his estate, both real and personal, to the United States government. Upon the petition of the executor an appraiser was appointed, and upon his report the Surrogate fixed the tax at the above amount. On appeal to the General Term of the Supreme Court the order of the Surrogate's Court was affirmed, and upon a further appeal to the Court of Appeals the order of the Supreme Court was affirmed, and the case remanded to that court for final judgment, which was entered against the United States March 31, 1894. Whereupon the United States and the executor joined in suing out this writ of error. Defendant in error is the county treasurer of Suffolk County.

Mr. Solicitor General for plaintiffs in error.

Mr. Timothy M. Griffing for defendant in error.

MR. JUSTICE BRown, after stating the case, delivered the opinion of the court.

This case raises the single question whether personal

VOL. CLXT-40

Opinion of the Court.

property bequeathed by will to the United States is subject to an inberitance tax under the laws of New York.

By chapter 483, Laws of 1885, as amended by chapter 215, Laws of 1891, it was enacted as follows: "SEO. 1. After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same wbile a resident of this State,

to any person or persons, or to any body politic or corporate, in trust or otherwise,

other than to or for societies, corporations and institutions now exempted by law from taxation, or from collateral inheritance tax, shall be and is subject to a tax at the rate hereinafter specified,” etc.

By chapter 399 of the Laws of 1892, Vol. 1, entitled “ An act in relation to taxable transfers of property,” (sec. 1,).“ a tax shall be and is bereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over,

to persons or corporations not exempt by law from taxation on real or personal property.” By sec. 23 of this law certain previous acts were repealed, subject to a saving clause contained in sec. 24, to the effect that the repeal should not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the passage of this act. The tirenty-fifth section also provided that the provisions of this act, so far as they were substantially the same as those of the laws existing April 30, 1892, should be construed as a continuation of such laws, modified or amended according to the language employed in this act, and not as new enactments.

The testator Merriam died January 30, 1889, but the tax was not assessed until February 16, 1893, after the act of 1892 had taken effect. Upon this state of facts, the Court of Appeals of New York was of opinion that the case was covered by the act of 1892, although it was thought that the legaoy was subject to taxation whether it was taxed under that or the previous acts. This ruling as to the applicability of the act of 1892 seems to conflict with the case of Seaman, 147 N. Y. 69, but the difference is not material in this case.

Opinion of the Court

The case really presents two questions:

1. Whether it is within the power of the State to tax bequests to the United States.

2. Whether, under these statutes, the United States are a corporation exempted by law from taxation.

1. While the laws of all civilized States recognize in every citizen the absolute right to his own earnings, and to the enjoyment of his own property, and the increase thereof, during bis life, except so far as the State may require him to contribute bis share for public expenses, the right to dispose of bis property by will has always been considered purely a creature of statute and within legislative control. “By the common law, as it stood in the reign of Henry II, a man's goods were to be divided into three equal parts; of which one went to his heirs or lineal descendants, another to his wife, and a third was at his own disposal; or if he died without a wife, he might then dispose of one moiety, and the other went to his children ; and so, e converso, if he had no children, tho wife was entitled to one moiety, and he might bequeath the other; but if he died without either wife or issue, the whole was at his own disposal.” 2 Bl. Com. 492. Prior to the Statute of Wills, enacted in the reign of Henry VIII, the right to a testamentary disposition of property did not extend to real estate at all, and as to personal estate was limited as above stated. Although these restrictions have long since been abolished in England, and never existed in this country, except in Louisiana, the right of a widow to her dower and to a share in the personal estate is ordinarily secured to her by statute.

By the Code Napoleon, gifts of property, whether by acts inter vivos or by will, must not exceed one half the estate if the testator leave but one child; one third, if he leaves two children; one fourth, if he leaves three or more. If he hare no children, but leaves ancestors, both in the paternal and maternal line, he may give away but one half of his property, and but three fourths if he have ancestors in bat one line. By the law of Italy, one half a testator's property must be distributed equally among all his children; the other half he may.

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Opinion of the Court.

leave to his eldest son or to whomsoever he pleases. Similar restrictions upon the power of disposition by will are found in the codes of other continental countries, as well as in the State of Louisiana. Though the general consent of the most enlightened nations has, from the earliest historical period, recognized a natural right in children to inherit the property of their parents, we know of no legal principle to prevent the legislature from taking a ray or limiting the right of testamentary disposition or imposing such conditions upon its exercise as it may deem conducive to public good.

In this view, the so called inheritance tax of the State of New York is in reality a limitation upon the power of a testator to bequeath his property to whom he pleases; a declaration that, in the exercise of that power, he shall contribute a certain percentage to the public use; in other words, that the right to dispose of his property by will shall remain, but subject to a condition that the State has a right to impose. Certainly, if it be true that the right of testamentary disposition is purely statutory, the State bas a right to require a contribution to the public treasury before the bequest shall take effect. Thus the tax is not upon the property, in the ordinary sense of the term, but upon the right to dispose of it, and it is not until it has yielded its contribution to the State that it becomes the property of the legatee. This was the view taken of a similar tax by the Court of Appeals of Maryland in State v. Dalrymple, 70 Maryland, 294, 299, in which the court observed : “Possessing, then, the plenary power indicated, it necessarily follows that the State in allowing property

to be disposed of by will, and in designating who shall take such property where there is no will, may prescribe such conditions, not in conflict with or forbidden by the organic law, as the legislature may deem expedient. These conditions, subject to the limitation named, are, consequently, wholly within the discretion of the General Assembly. The act we are now considering plainly intended to require that a person taking the benefit of a ciril right secured to him under our laws should pay a certain premium for its enjoyment. In other words, one of the conditions upon which strangers and

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