tiff's counsel, upon objection by the defendants' counsel, without stating the precise testimony, said that he expected to show an admission by the defendants. The court thereupon stated that "no evidence could be considered by the jury except such as showed an admission, and that no evidence as to an insurance by the defendants would be competent to show an admission." The same statement was made by the court with reference to testimony relating to insurance drawn out of the defendant James on his cross-examination. Both of these statements were addressed, it is to be presumed, to the jury. In its charge the court told the jury in substance that the fact of insurance had nothing to do with the duty of the defendants to the plaintiff, or their liability to him; and that it was for them to say whether the true import of the conversations was an admission of liability on the part of the defendants, or an assurance or the expression of a hope on their part that the insurance company would pay the plaintiff; and that, if it was the latter, it was not an admission. No exception appears to have been taken by the defendants to this portion of the charge, and we think that it was competent for the court, in the exercise of its discretion re specting the conduct of the trial, to admit the whole conversation with a caution to the jury that the fact of insurance was not to be taken as an admission by the defendants, and then in the charge, after saying again that the insurance was not to be regarded as an admission, to leave it to the jury to find under suitable instructions what the true import of the conversation was. It cannot be said, we think, that there was nothing which fairly could be construed as an admission of liability. The exceptions do not show that the defendant James was not present at the conversation with the agent, or that the plaintiff's statement of what occurred was objected to except as a part of the conversa. tion with the defendant. Exceptions overruled. OUILLETTE v. OVERMAN WHEEL CO. STRUCTIONS. 1. An expert witness may testify as to whether a person standing on the floor can detect any oscillation in a shaft 2 15/16 inches in diameter, and 11 feet above the floor, due to its not running true. 2. Where, in an action for personal injuries caused by the breaking of a defective shaft, defendant's witness has testified that he inspected the shaft so that he could have detected any oscillation in its revolutions, testimony of an expert that oscillations could have been detected from such an inspection is not cumulative evidence, the admission of which is within the discretion of the court. 3. In such an action the refusal of the court to instruct, as requested by defendant, that he was not bound to explain the cause of the accident, is not ground for complaint, when it does instruct that the breaking of the machinery was no evidence of neglect on the part of defendant. Exceptions from superior court, Hampden county; Albert Mason, Judge. Action by Edgar J. Ouillette against the Overman Wheel Company. There was a judgment for defendant, and plaintiff excepts. Sustained. Plaintiff, an employé, was injured in defendant's factory by the falling upon him of shatting and pulleys fastened to beams overhead, while engaged in the performance of his duties. The shaft was 2 15/16 inches in diameter, and 11 feet above the floor. W. H. Brooks, for plaintiff. L. White and Robinson & Robinson, for defendant MORTON, J. The instructions given by the court covered the rulings asked for by the defendant, and stated the law correctly. Whether the defendant was or was not liable was matter of proof. The burden was on the plaintiff. If he failed for any reason to sustain it, the defendant was entitled to a verdict, not because prima facie it appeared that there had been no neglect on his part, but because the plaintiff had not shown any. So far as any presumption existed, it was that the defendant performed its duty, as the court told the jury. The jury were also told, in effect, that, under the circumstances of this case, the breaking of the machinery was no evidence of neglect on the part of the defendant, which was going further than to say, as the defendant asked the court to rule, that the defendant was not bound to explain the cause of the accident. We think, however, that the question to the witness Cumnock should have been admitted. One of the issues at the trial was whether the defendant had properly inspected the shaft. The defendant introduced tes timony tending to show that it had done so before the shaft was started, and from day to day while it was running. The witnesses testified, among other things, that the shaft ran without vibration, and that, standing on the floor, they could see if it or the pulleys oscillated an eighth of an inch. As bearing further on the sufficiency of the inspection made by the defendant, it called the witness Cumnock, who had had a long experience in dealing with machinery of that character, and who was admitted to be an expert. The defendant's counsel asked him the following question: "Can you state whether or not an experienced person, looking at a shaft revolving, and pulleys upon that shaft revolving two hundred and fifty revolutions a minute, whether a person can see whether it ran true or not?" This was objected to, and excluded, and the defendant's counsel asked the further questions: "Whether a person standing upon the floor, an experienced person standing upon the floor, and watching this, can see any oscillation;" and this also was excluded. It does not appear very clearby what the answer would have been, but it is fairly to be inferred, we think, that it would have been to the effect that any oscillation could have been seen by an experienced person in that position; and, assuming that the first question was objectionable in point of form, we think that the last should have been admitted. The subject was not one within the common experience of men. The jury could not tell whether an oscillation in a shaft of the size of this, and as far above the floor, and with two heavy pulleys on it, revolving at the rate of 250 revolutions a minute, could be seen by an experienced person from the floor. Only a person of skill in the business, or familiar with the running of such machinery, would know. See Glass Co. v. Lovell, 7 Cush. 319; Curtis v. Kiley (Mass.) 26 N. E. 421; Rog. Exp. Test. (2d Ed.) § 109 et. seq.,-for collection of cases. The question did not come fairly within the cases in which it has been held that the extent to which testimony may be accumulated or allowed in rebuttal is within the discretion of the court. Cushing v. Billings, 2 Cush. 158; Ashworth v. Kittridge, 12 Cush. 193; York v. Pease, 2 Gray, 282. As to the question put to the witness Pepper, it is not necessary for us to consider now whether it was admissible at the stage of the examination at which it was put, even if it would have been admissible earlier, upon which we express no opinion. As there must be a new trial on account of the exclusion of the question to the witness Cumnock, the question whether the interrogatory to Pepper was admissible may become immaterial, or may arise under different circumstances. Exceptions sustained. 1. Although St. 1891, c. 425, in form imposes a tax upon property passing as a legacy, inheritance, or by other succession on the death of the owner, it is in effect a tax, in the nature of an excise, upon the privilege of taking or of transmitting property in this way. 2. The privilege of transmitting and receiving, by will or descent, property on the death of the owner, is a "commodity," within the meaning of this word in the constitution (part 2, c. 1, § 1, art. 4), and an excise may be laid upon it. Lathrop, J., dissenting. 3. An excise upon the transmitting and taking of property by will or descent is not unequal, and so unreasonable, by reason either of an exemption of kindred in the direct line, or of a higher rate as to collaterals and strangers. 4. An excise tax on inheritance is not so clearly unreasonable, by reason of an exemption of estates under $10,000, as to render it unconstitutional. Lathrop, J., dissenting. 5. St. 1891, c. 425, in imposing an excise upon inheritances, provides, in section 2, that the present worth of a remainder must be ascertained by deducting the value of the life estate from the appraised value of the property; and. by section 13, the value of a life estate is to be determined by actuaries' tables. Held, that where a wife left to her husband a life estate in $10,000, not taxable under the statute, at his decease to go to E., the tax upon E.'s estate must be computed and deducted from the principal sum; and, although the tenant for life will have lost the income on the amount so deducted, such a loss must be borne by him, as a consequence of imposing a tax on a legatee in remainder, and will be held to have been so intended. 6. Where the statute provides for a tax on annuities, the tax is to be paid out of the annuity as soon as the annuity becomes payable, and at the time when payments on account of the annuity are made, though the effect may be that the first payments will be exhausted by the tax. 7. The exemption of "charitable, educational. or religious societies, or institutions the property of which is exempt by law from taxation," from the operation of St. 1891, c. 425, is confined to societies the property of which is exempt from taxation by the laws of Massachusetts. Appeal from probate court, Suffolk county. Appeals by Winthrop and others against William Minot, Jr., and others, executors, Bowditch against Williams, executor, and Phillips and others against West, from the decisions of the probate judge as regards the application of the inheritance tax law to the estates in which they are interested. The appeal of the cause of Eliza C. Winthrop and others against William Minot, Jr., and others, as executors, involves some further points than the other two; and in that cause the decision is modified. The others are affirmed. W. G. Russell and J. Fox, for appellants. H. M. Knowlton, Atty. Gen., and G. C. Travis, Asst. Atty. Gen., for the Commonwealth. FIELD, C. J. All these cases involve the constitutionality of St. 1891, c. 425. The objections urged against this statute are that the right of succession to property on the death of the owner is a necessary incident of property which is protected by the constitution of Massachusetts; that a tax upon such succession is, in effect, a tax upon the property, and is subject to the limitations put upon a tax upon estates by the constitution; that if such a tax is not a tax upon property, but an excise upon the right of succession, this right cannot be considered as "goods, wares, merchandise and commodities," within the meaning of these words in the constitution (part 2. c. 1, § 1, art. 4); and that even if the right can be considered as a commodity, the tax imposed by the statute is unreasonable, because the statute is unequal in its operation, and makes arbitrary distinctions between those persons and estates that are and those that are not subject to its provisions. The attorney general concedes that the tax imposed by the statute is invalid if it is a tax on property or estates. He contends that the tax is an excise; that the succession to property on the death of the owner is a privilege created by law and a commodity within the meaning of the constitution; and that, as an excise, the tax is reasonable. St. 1891, c. 425, purports to be a statute imposing a tax, and we think it apparent that the legislature, in passing it, intended to act under the authority granted to the general court by the constitution to impose and levy taxes. This authority is found in the constitution (part 2, c. 1, § 1, art. 4), and is full power and authority "to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident and estates lying within, the said commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured or being within the same; to be issued and disposed of by warrant, under the hand of the governor of this commonwealth for the time being, with the advice and consent of the council, for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof, according to such acts as are or shall be in force within the same." The constitution also provides as follows: "And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such assessments may be made with equality, there shall be a valuation of estates within the commonwealth, taken anew once in every ten years at least, and as much oftener as the general court shall order." In the constitutional convention the committee appointed to prepare a declaration of rights and a frame of a constitution reported a draft of a constitution which gave to the general court in the matter of taxation only the authority "to impose and levy proportional and reasonable assessments, rates and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth, * and upon all estates within the same, to be issued and disposed of by warrant," etc. This was, in effect, the same as in the province charter. This draft also contained the following provision: "And that public assessments may be made with equality there shall be a valuation of estates within the commonwealth taken once in every ten years at least." Journal of Convention 1779-80, p. 198, c. 2, § 3 of the Draft. In the convention the paragraphs above quoted were referred to committees, who reported them in the form In which they stand in the constitution. Id. pp. 61-63. Under the province charter, the general court had laid imposts and excises, in addition to taxes and assessments, upon the persons and estates of the inhabitants; but v.38N.E.no.12-33 it is evident that the framers of the constitution intended that the authority to do this should be express. But neither in the province nor in England had there been a tax on legacies and inheritances at the time when the constitution was adopted, although it was a form of taxation which had been used on the continent of Europe. See The Inheritance Tax, by Max West, vol. 4, No. 2 of the Studies in History, Economics, and Public Law of Columbia College; Smith, Wealth of Nations, bk. 5, c. 2; Dos Passos, Law Coll. Inher. Taxes; Hanson, Probate, Legacy & Succession Duties. The descent or devolution of property on the death of the owner in England and in this country has always been regulated by law. We have no occasion in these cases to consider whether the legislature has the power to make the commonwealth the universal legatee or successor of all the property of all its inhabitants when they die, for the purposes, not only of paying the public charges, but also of distributing the property according to its will among the living Inhabitants, or for the purpose of abolishing private property altogether. We assume that under the constitution this cannot be done, either directly or indirectly; that the legislature cannot so far restrict the right to transmit property by will or by descent. as to amount to an appropriation of prop erty generally; that it cannot impose a tax which shall be equivalent or almost equivalent to the value of the property, and cannot so limit the persons who can take as heirs, devisees, distributees, or legatees that the great mass of all the property of the inhabitants must become vested in the commonwealth by escheat. The state can take property by taxation only for the public service, and we assume that its right to take property, if any exists, by regulating the distribution of it on the death of the owner, is limited in the same manner, and that this right must be exercised in a reasonable way. Under our system of law, the right to make a will or testament, and the right to transmit or take property by descent, are now mainly, if not wholly, regulated by statute. In Mager v. Grima, 8 How. 490-493, the supreme court of the United States say of a statute of Louisiana: "Now, the law in question is nothing more than an exercise of the power which every state and sovereignty possesses of regulating the manner and terms upon which property, real or personal, within its dominion, may be transmitted by last will and testament or by inheritance, and of prescribing who shall and who shall not be capable of taking it." In Brettun v. Fox, 100 Mass. 234, this court say: "The objection of the respondent that the statute could not constitutionally limit the owner's power of testamentary disposition is equally novel and unfounded. The power to dispose of property by will is neither a natural nor a con stitutional right, but depends wholly upon statute, and may be conferred, taken away, or limited and regulated, in whole or in part, by the legislature; and no exercise of legislative authority in this respect is more usual than that which secures to a widow a certain share in the estate of her husband." See Lavery v. Egan, 143 Mass. 389, 9 N. E. 747. If, under the power to regulate the devolution of property on the death of the owner, the legislature cannot take away altogether the inheritable quality of property, yet such regulations as are thought reasonable concerning the persons who can take or transmit real or personal property by will or inheritance have been made in every civilized state. Taxes on legacies and inheritances or on succession in any form to property on the death of the owner have generally been considered, not as taxes upon property, but as excises upon the privilege of taking or transmitting property in this way. The decision in Curry v. Spencer, 61 N. H. 624, that a statute imposing such a tax is in violation of the constitution of New Hampshire, goes on the ground that the tax is not proportional, and so cannot be supported as a tax upon property under the constitution of that state, which, it seems, authorizes only taxes and assessments upon polls and property. See State v. U. S. & C. Exp. Co., 60 N. H. 219. The constitution of the United States, by article 1, 8, provides as follows: "The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." Direct taxes must be apportioned among the several states according to the respective numbers of their inhabitants, to be determined as provided by the second section of the same article. In Scholey v. Rew, 23 Wall. 331, the validity of the succession taxes imposed by the United States statute of June 30, 1864, as amended by the statute of July 13, 1866, was considered. 13 Stat. 287 et seq.; 14 Stat. 140 et seq. There was no room for any contention that the congress of the United States could regulate in the states the transmission of property by will or inheritance, and the question was whether it had authority under the taxing power to impose such taxes. The decision was that such taxes were not direct taxes, but excises or duties, and, as such, within the authority of congress to lay and collect without apportionment among the states. The decisions generally are that such taxes are excises. See Mager v. Grima, 8 How. 490; In re McPherson, 104 N. Y. 306, 10 N. E. 685; In re Swift, 137 N. Y. 77, 32 N. E. 1096; In re Knoedler's Estate, 140 N. Y. 377, 35 N. E. 601; Wallace v. Myers, 38 Fed. 184; State v. Dalrymple, 70 Md. 294, 17 Atl. 82; Tyson v. State, 28 Md. 577; Eyre v. Ja cob, 14 Grat. 422; Pullen v. Commissioners, 66 N. C. 361; Dos Passos, Law Coll. Inher. Taxes; Hanson, Probate, Legacy & Suecession Duties. It is contended that the authority given in our constitution to the general court is not to levy duties and excises generally, but only to levy duties and excises "upon any produce, goods, wares, merchandise and commodities, whatsoever, brought into, produced, manufactured or being within the" commonwealth. The excises to which the inhabitants of the province of Massachusetts Bay were accustomed were taxes in the nature of license fees for carrying on certain kinds of business, taxes on the sale of goods, wares, and merchandise, such as intoxicating liquors, tea, coffee, and chocolate, chinaware, etc., and stamp taxes on legal papers. The words "produce, goods, wares and merchandise" "brought into, produced or being manufactured" within the commonwealth are words of definite meaning, but the words "any commodities, whatsoever," are of less certain signification. In the general sense a commodity is something of convenience, advantage, benefit, or profit; and in a special sense a commodity is something produced for use, and an article of trade or commerce. It has been decided that the word "commodities," in our constitution, is not used in this special sense, and that it means more than "produce, goods, wares and merchandise." In Bank v. Apthorp, 12 Mass. 252-256, the court say: "The term 'excise' is of very general signification, meaning tribute, custom, tax, tollage or assessment. It is limited in our constitution, as to its operation, to 'produce, goods, wares, merchandise and commodities.' This last word will perhaps embrace everything which may be a subject of taxation, and has been applied by our legislature, from the earliest practice under the constitution, to the privilege of using particular branches of business or employment, as the business of an auctioneer, of an attorney, of a tavern keeper, of a retailer of spirituous liquors, etc. It must have been under this general term 'commodity' (which signifies convenience, privilege, profit, and gains, as well as goods and wares, which are only its vulgar signification) that the legislature assumed the right, which has been uniformly, and without complaint, exercised for 30 years, of exacting a sum of money from attorneys and barristers at law, vendue masters, tavern keepers and retailers; for every man has a natural right to exercise either of these employments free of tribute, as much as a husbandman or mechanic has to use his partic ular calling. The money required of them is not a proportional tax, nor is it an excise or duty upon produce, goods, wares, or merchandise. It is a commodity, convenience, or privilege, which the legislature has, by contemporaneous construction of the consti tution, assumed a right to sell at a reasonable price; and, by parity of reason, it may impose the same conditions upon every other employment or handicraft." It was held in this case that the statute laying a tax on the stock of a banking corporation was an excise on the franchise or employment, and, as such, was constitutional. Since the decision, the legislature has often imposed excises upon the franchises of corporations. See Com. v. People's Five Cent Sav. Bank, 5 Allen, 428; Com. v. Lowell Gaslight Co., 12 Allen, 75; Com. v. Hamilton Manuf'g Co., Id. 298; Com. v. Provident Inst. for Sav., Id. 312; Insurance Co. v. Loud, 99 Mass. 146; Attorney General v. Bay State Min. Co., Id. 148; Com. v. Lancaster Sav. Bank, 123 Mass. 493; Com. v. Barnstable Sav. Bank, 126 Mass. 526; Connecticut Ins. Co. v. Com., 133 Mass. 161. In Attorney General v. Bay State Min. Co., supra, the court say: "It is not merely the creation of corporate functions and privileges, or the conferring of rights and franchises by the legislature, which entitles the state to tax the possessor of such privileges and rights. The exercise of power or privileges, and even of the occupations without especial powers or privileges, may be equally subjected to such taxation, under the constitutional authority to 'impose and levy reasonable duties and excises.' It was so considered in the case of Bank v. Apthorp, 12 Mass. 252; and the tax of 1 per cent. laid upon the capital stock of the bank was justified upon principles equally applicable to individuals transacting simflar business, and to brokers, auctioneers," etc. In Com. v. Lancaster Sav. Bank, supra, the court say: "A duty or excise may thus be exacted, not merely upon certain articles produced or brought into the state, but also upon any commodities whatsoever. 'Commodity' is a general term, and includes the privilege and convenience of transacting a particular business; and upon persons carrying on such business, it has never been questioned that the legislature may levy an excise, or provide that a license must be obtained in order to transact it." In Gleason V. McKay, 134 Mass. 419, it was decided that St. 1878, c. 275, was unconstitutional. That statute attempted to apply St. 1865, c. 283, "to companies, copartnerships and other associations having a location or place of business within this commonwealth, in which the beneficial interest is held in shares which are assignable without consent of the other associates specifically authorizing such transfer." St. 1865, c. 283, imposed an excise tax upon the franchises of certain corporations, It was held that the tax intended to be imposed by St. 1878, c. 275, was not in the nature of a license fee, but of an excise upon a franchise or privilege, and that the defendant enjoyed no franchises or privileges conferred upon it by the legislature. The defendant was a partnership, the particular feature of which was that, by agreement between the partners, the interest of each might be transferred in much the same manner as stock in an incorporated company. This peculiar feature was held not to be a "commodity," within the meaning of the constitution. It is to be noticed that the tax intended to be imposed was not upon a business or employment. The statute in terms applied only to certain kinds of partnership, leaving other partnerships and persons doing the same kinds of business untaxed; and the partnerships taxed possessed no especial privileges derived from the legislature. In Bank v. Apthorp it was said of excises: "Taxes of this sort must undoubtedly be equal; that is, they must operate upon all persons who exercise the employment which is so taxed." As the tax considered in Gleason v. McKay was not upon a business or employment, and as there was no franchise or privilege conferred by the legislature, the distinction between partnerships with transferable shares and those without rendered the tax unequal and unreasonable, because it was a discrimination founded upon an immaterial fact. See Oliver v. Washington Mills, 11 Allen, 268. When the constitution of Massachusetts was adopted, Massachusetts was in many respects an independent state, and the legislature could lay duties and imposts on imported goods, wares, and merchandise, as well as excises on domestic goods, wares, merchandise, and commodities, and taxes and assessments upon the persons and estates of the inhabitants. The constitution of the United States took from the states the right to lay imposts and duties on imports and exports, but it did not affect the other powers of taxation possessed by the states, unless they interfered with the powers granted to the United States. The language of the constitution of Massachusetts is general, and may well be held to authorize the laying of excises upon all such gainful employments and privileges as are created or may be regulated by law, and commonly have been considered legitimate subjects of taxation in other states and countries. We are of opinion that the privilege of transmitting and receiving, by will or descent, property on the death of the owner is a "commodity," within the meaning of this word in the constitution, and that an excise may be laid upon it. Although St. 1891, c. 425, in form imposes a tax upon the property which passes in the manner described in the first section, yet the tax plainly is not meant to be a substitute for the annual tax upon estates, or to be an additional tax of that nature. The statute can only take effect by regarding the tax as an excise, and the statute should be so construed as to take effect if such a construction reasonably can be given to it. We see no difficulty in doing this, and are of opinion that the statute was intended to impose a tax in the nature of an excise. The only other condition expressed in the |