to become a party complainant therein, and to have separate notice of all motions, proceedings, and orders, etc. And the reason he gives for asking to be permitted to intervene is that the Biddle committee is the real party complainant in this suit. I cannot assent to that proposition. The parties to this suit are the Land Title & Trust Company, complainant, and the Asphalt Company of America, defendant. Nothing that has been done or left undone by the Biddle committee, of whom I have no knowledge whatsoever except as I have gleaned from the newspapers, and the information contained in the paper annexed to this petition, can afford any ground for the intervention of anybody as a party complainant. That Mr. Biddle. individually, or as chairman of some committee which was organized voluntarily, as was stated in a former petition in this cause, to reorganize the affairs of this company, filed an affidavit saying that, in his opinion, representing a majority of the certificate holders, Messrs. Tatnall and Mack would make capable receivers, did not in any way. make him a party to the suit; and, while it may be true, and probably is, that, under some agreement-this agreement that has been quoted a majority of the certificate holders had a right to demand that suit should be brought by the Land Title & Trust Company, it does not appear that they ever made any such demand, or took action in any way, except to recommend to the court the appointment of the receivers, or that they had taken any part in this litigation.

I do not know that this court has any authority to make the Biddle committee a party complainant to this litigation without its consent. If they should lose this suit, or anything should be done contrary to what they might set up, they might be mulcted in costs; and the court has no right to put them in a position where they would be compelled to pay costs without their consent. The Biddle committee certainly cannot be made a party defendant to this suit, because they, or Mr. Biddle, at least, resides in the city of Philadelphia, and the only ground upon which this court acquires jurisdiction in this case is diversity of citizenship; and if it should be that while the defendant, the Asphalt Company of America, is a resident of New Jersey, the complainant being a resident of Pennsylvania, Mr. Biddle, who is a resident of Pennsylvania, should be joined as a party defendant, it would be very questionable whether this court had jurisdiction. At any rate, I am of opinion that the Biddle committee is not connected in any way with this suit; that nothing that they have done or failed to do would justify an order permitting this petitioner to intervene.

Now, the second prayer of the bill is that Mr. Biddle and his committee be required to answer, but not under oath, and show cause, if any they have, why any plan of reorganization of the National Asphalt Company should not be postponed until an opportunity has been given the receivers of this court thoroughly to investigate the affairs of that company, and to ascertain the rights of holders of the collateral certificates of the Asphalt Company of America to take steps to enforce such rights by appropriate proceedings, if such proceedings shall seem proper, against the promoters, directors, officers, trustees, and past and present stockholders of the Asphalt Company of America and the National Asphalt Company.

Now, as I have said before, if the Biddle committee are not parties to this suit, as I have held they are not, I have no right to make an order restraining them from doing anything they please. As I understand it, the Biddle committee is a self-constituted committee; they have called on the certificate holders to deposit their certificates. with the committee, and, having a majority of the certificates, they propose to make a settlement of all these claims in behalf of anybody who will file his certificate with them; they propose to make a settlement with all these people. Now, if anybody chooses to deposit his securities with the Biddle committee, and permits the Biddle committee to make a settlement of his claims as against either the promoters or subscribers of the stock of this Asphalt Company of America, the court thinks that it ought not to interfere. A settlement that is made between parties themselves is always more satisfactory than a settlement made by the court, and it is a voluntary matter, and I think that an opportunity ought to be given to all who are willing to compromise their claims against anybody they think they have a claim against-an opportunity ought to be given them to do so.

Of course, Mr. Brown has made a very forcible argument in regard to the liability of subscribers to this stock, and the liability of directors and promoters to these companies, and has endeavored to show -has quoted authorities, very much in point, which tend to showthe liability of these people on the lines which he has laid out. Of course, the court does not want at this time to pass upon the liability of subscribers to the stock, or of promoters of the company. If such liability exists, why, it would seem to me that it is at least doubtful if the parties who are liable in that way would be relieved of their liability by any voluntary settlement which other certificate holders might choose to make.

The third prayer is for a restraining order on the Land Title & Trust Company and the directors of the Asphalt Company of America and of the National Asphalt Company, the majority, or the representatives of the majority, of the certificates, from selling or converting any of the securities of the Asphalt Company of America until the rights of the parties have been ascertained. As I said during the course of the argument, the appointment of receivers was to preserve, for the benefit of the certificate holders, these very assets, and it was considered that those rights would be best preserved by keeping them intact and keeping the concern a going concern, and that was the view that was presented to the court by the Land Title & Trust Company, and also by the defendant, the Asphalt Company of America; and under those circumstances I do not think there is any danger that the parties to this suit, having come into court and asked that receivers be appointed to take charge of this property in order to preserve it for the benefit of the shareholders, would undertake, without the consent of the receivers, and without the consent of the court, to make any disposition of the assets.

The fourth prayer is that the Land Title & Trust Company be ordered to file a list of the names and addresses of the registered holders of the collateral gold certificates of the Asphalt Company of America, issued by it under the agreement of July 15, 1899. I do not

know what advantage that would be to anybody; it has not been touched upon in the argument, and I do not know the object of the prayer. At any rate, it is so immaterial that it need not be discussed.

The fifth prayer asks that the receivers be directed to bring these suits to ascertain the liability of the promoters, directors, officers, trustees, etc., of the Asphalt Company of America and the National Asphalt Company by appropriate litigation. As to that, as I have said several times before, I do not think that this litigation can be closed or these receivers discharged until a settlement has been made of all the assets of the concern. If, as I have intimated, a settlement should be made by the Biddle committee, representing a large portion of these assets, the court will not interfere with it; on the contrary, opportunity will be given them to make such a settlement. If Mr. Bullitt and those who are associated with him are not satisfied with that settlement, and come into court and represent that there are still these uncollected assets, the court would be willing that an opportunity be given them, in the name of the receivers, to prosecute those suits and ascertain those liabilities. A suit for unpaid subscriptions to stock, as I understand the law in New Jersey, could not be successfully maintained against the subscribers until all of the visible assets had been liquidated; and the reason of that, as I recollect, is that the subscribers are only liable for such deficiency as may exist to meet the payment of all of the liabilities of the company, and, until the measure of that liability is ascertained, no suit could be successfully prosecuted and no judgment could be rendered; and therefore it would seem to me that, under those circumstances, it would be useless at this time to direct the receivers to proceed with any suits looking to the collection of a deficiency, which deficiency is as yet uncertain and unascertained.

I cannot see that the interests of this petitioner will be in any way jeopardized by the refusal of the court to permit him to intervene in this suit. The receivers are perfectly competent to manage the business, and if the efforts of the Biddle committee should be successful, and any large majority of certificate holders are willing to compromise their claims on a basis which they consider entirely satisfactory to themselves, the rights of this petitioner, if he did not assent, would still be preserved.

For these reasons, I decline to entertain the petition to make Mr. Bullitt a party to this suit.

VANDERBILT et al. v. EIDMAN.

(Circuit Court, S. D. New York. January 15, 1903.)

1 INTERNAL REVENUE-WAR REVENUE ACT-LEGACY Tax.

Section 29 of the war revenue act of 1898 (Act June 13, 1898, c. 448, 30 Stat. 464 [U. S. Comp. St. 1901, p. 2307]) provides that "any person or persons having in charge or trust, as administrators, executors or trustees, any legacies or distributive shares arising from personal property passing after the passage of this act from any person possessed of such property, either by will or by the intestate laws, • * to any person or persons * in trust or otherwise shall be and hereby

are made subject to a duty or tax. Held, that where a testator left his residuary estate to his executors in trust for the benefit of a son, who was to receive the income, and the principal on reaching a certain age, with a proviso that in case of his death before reaching that age the property should go to other lineal descendants of the testator, the tax became fixed on the passing of the property to the executors as trustees, as a single bequest primarily for the benefit of the son, it being immaterial under the terms of the statute, where or to whom it should ultimately pass from their hands, all the beneficiaries named being in the same class, for the purpose of fixing the rate of tax.

At Law. Action to recover legacy taxes paid under the war revenue act of 1898 (Act June 13, 1898, c. 448, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2284]).

Henry B. Anderson, for plaintiffs.

Charles D. Baker, Asst. Ū. S. Atty., for defendant.

WHEELER, District Judge. The war revenue act of June 13. 1898 (30 Stat. 448), provides (section 29, c. 448, 30 Stat. 464, 2 U. Š. Comp. St. p. 2307):

"That any person or persons having in charge or trust, as administrators, executors or trustees, any legacies or distributive shares arising from personal property, where the whole amount of such personal property, as aforesaid, shall exceed the sum of ten thousand dollars in actual value, passing after the passage of this act from any person possessed of such property, either by will or by the intestate laws of any state or territory, or any personal property or interest therein transferred by deed, grant, bargain, sale or gift made or intended to take effect, in possession or enjoyment after the death of the grantor or bargainer to any person or persons, or to any body or bodies, politic or corporate, in trust or otherwise, shall be and hereby are, made subject to a duty or tax to be paid to the United States, as follows that is to say: Where the whole amount of said personal property shall exceed in value ten thousand and shall not exceed in value the sum of twentyfive thousand dollars the tax shall be: First. Where the person or persons entitled to any beneficial interest in such property shall be the lineal issue, lineal ancestor, brother or sister to the person who died possessed of such property as aforesaid at the rate of seventy-five cents for each and every hundred dollars of the clear value of such interest in such property,"

-And a successively increasing rate where the beneficiaries are more remote relatives, and the amount or value exceeds the sum of $25,000, or successively increasing fixed sums.

The plaintiffs' testator, Cornelius Vanderbilt, died September 12, 1899, leaving a will containing this clause:

"Seventeenth. All the rest, residue and remainder of all the property and estate, real, personal and mixed, of every description, and wheresoever situated, of which I may die seized or possessed, or to which I may be entitled at the time of my decease, including all lapsed legacies and the principal of any annuities which may terminate and any part of my estate which may not have been effectually devised or bequeathed or from any other source, I give, devise and bequeath to my executors, hereinafter named, and the survivors and survivor of them, in trust, to hold said estate and invest and reinvest the same and to collect the rents, issues, income and profits therefrom for the use of my son, Alfred G., and to apply so much of said net income as may be in their judgment advisable, to his support, maintenance and education, and for the care and maintenance of his property during his minority, and to accumulate any surplus income, such accumulations to be paid to him when he arrives at the age of twenty-one years, and thereafter to pay the net income of said estate to him as receiver until he arrives

at the age of thirty years, when he shall be put in full possession of onehalf of the portion of said estate to be set apart for that purpose by my executors and the survivors of them. And upon further trust thereafter to pay to my said son, Alfred G., the income from the balance remaining of said estate until he shall arrive at the age of thirty-five years, when he shall be put in possession of the balance of said trust estate, and the said trustees shall be discharged from any and all liability and responsibility in respect thereof. If my son Alfred G. should die before attaining the age of thirty-five years, leaving issue, such portion of the estate as shall not then have come into his possession shall be divided by my executors into as many equal shares as he may leave children surviving, and one share shall be held by my executors to the use of each child or children until he or she shall attain the age of twenty-one years, when it shall be paid to such child; but if he shall die without child or children, or if none of his children shall attain majority, then it is my will that my son Reginald C., shall in all respects, as to said residuary estate, stand in the place and stead of his brother Alfred G., and that if Alfred shall die without issue before he attains the age of thirty years, then Reginald C. shall receive the income from said estate until he attains the age of thirty years, when he shall be put in possession of one-half the residuary estate, and thereafter, Reginald C. shall' receive the net income of the remaining one-half of my estate, and on arriving at the age of thirty-five years he shall be put in possession of the whole of said estate, and my said executors shall hold said estate upon such trust, and I give and devise the same accordingly. If Alfred G. and Reginald C. shall both die before being put into possession of said estate, and without issue, I give whatever then remains of my residuary estate to my daughters, Gertrude and Gladys Moore, share and share alike; and if either of my said daughters be then dead leaving issue, her issue to take his or her mother's share, per stirpes and not per capita: and in default of issue, the survivor shall take the principal,"

-And all the children named in this clause surviving him.

The defendant was and is the collector of internal revenue for this district, and as such exacted from the plaintiffs $311,681.36 as a tax on account of this legacy. This suit is brought to recover back this assessment, and the complaint alleges:

"(9) That in order to support the said assessment of the tax the govern ment did, as appeared in the proceedings before the United States commissioner and the collector of internal revenue, wrongfully and improperly claim and rule that, although Alfred G. Vanderbilt then had merely a contingent interest in the principal of said residue dependent upon his attaining the age of thirty years as to one-half and thirty-five years as to the other, yet because he is the beneficiary of the income therefrom in the interval, and inasmuch as he had at his then age an expectancy of life as shown by the mortality tables until the time when he would acquire a vested and indefeasible interest in the principal of said residue, it was to be assumed as a matter of fact that he would live until such time and ultimately receive such residue, and that in consequence there was, for the purposes of taxation, a merger of such interests, and he had a present vested interest in the entire residue which was subject to a present tax, under the provisions of the war revenue act."

The defendant has demurred.

The principal ground for claiming back the money seems to be that these are several contingent legacies for the respective beneficiaries which could only be taxed at their actual value when and as they should become absolutely vested. This is, however, one bequest, and one only, of this residue to the executors in trust, primarily for the benefit of the son Alfred G., although by the happening of events it may reach others of the relatives of the testator. If it should they are all