was marked "Approved" by the proper officer of the defendant, but afterwards the approval was erased, and it was marked "Rejected." The premium paid by plaintiff was received by the defendant, and there was no return of it, or offer to return it, until after the death of Mrs. O'Brien; nor was the return of the policy demanded, or the plaintiff informed before the death that the application was rejected. The court submitted to the jury the question whether the application was rejected by the medical of ficer of the defendant upon its receipt by it on the 28th August, 1891, and they found that it was not. This finding the court in its subsequent disposition of the case adopted, in effect determining that the policy was delivered by the defendant as and for a good and valid policy. We find no good reason for disturbing this conclusion. 3. But it is said that the application was not in fact signed by Mrs. O'Brien. She was not present at the time the application was made out by the agent of the defendant, and the policy delivered. The agent asked the plaintiff to sign her mother's name, and she did so. The plaintiff testifies that her mother knew of the application being made; that she spoke to her beforehand about it. There is in the answer no allegation that the plaintiff did not have authority to act for her mother. On the contrary, it is affirmatively alleged that Mrs. O'Brien made the application. So far as this question is concerned, we think the nonsuit was properly denied. 4. Was the policy forfeited by reason of the failure to pay the premium due November 1, 1891? The plaintiff, a short time before this date, called on Mr. Sperry, who had given her the receipt for the first premium, and offered to pay the premium soon becoming due. He declined to receive it, saying that he had no receipt from the company for her among the receipts that had been sent him, and therefore could not accept her premium. The plaintiff replied she did not understand it, and the result was he promised to call the attention of the company to the fact of her call, and see what there was of it. Apparently the plaintiff heard nothing further about it, and the death occurred on the 12th November. Mr. Sperry was employed by the defendant to assist in obtaining transfers from the Flower City Company to the defendant, and in that matter, to the knowledge and assent of defendant, he gave receipts for the defendant in his individual name for the premiums paid at the time of the transfer. The plaintiff had such a receipt for her first premium. The defendant knew that Sperry had been accustomed to receive the premiums in the Flower City, and they also employed him to act as their collector. He, however, for any premiums after the first, had in fact no authority to collect except upon receipts furnished by the company. The bylaws of the defendant provided that premiums should be payable at the home office of the association, "but if, for the sake of convenience or otherwise, any premiums are paid to collectors or agents of the association, such collector or agent shall be deemed and held to be the agent of the members so paying, unless the agent or col lector shall furnish the members so paying a receipt for said premium, signed by the secretary of the association, or enter the same in the member's individual receipt book; otherwise no payment to any such agent or collector shall be binding upon the association until received and accepted by it." One clause of the application stated where and to whom "notices of premiums due" should be sent. In one of the by-laws which related to the class of policies in which was the plaintiff's, there is a provision that "a notice of premium due shall be mailed to the last known post-office address of each member of this class during the first ten days of February, April, June, August, October, and December of each year, and will fall due and must be paid on or before the first business day of the month following the date of notice; and any certificate upon which premium is not paid on or before the date it falls due will be subject to the penalties provided in article five of these bylaws." The article as to the penalties is not printed in the case, but the inference from the application is that failure to pay when due was made a cause of forfeiture of the certificate and the previous payments. It may be inferred from the evidence that the notice above referred to was never mailed to the plaintiff, though she was named in the application as the person to whom notices should be sent, and her address was given. There was evidence tending to show, and the court found, that at the time when the second premium would have become due under the certificate the company disowned its obligation under it, and failed to send to their agent, Mr. Sperry, a receipt, on the ground that the certificate was not an existing obligation upon their part. If, prior to 1st November, the defendant repudiated its contract, mailed no notice to the plaintiff, and sent no receipt to its agent for the plaintiff, although it did for others, according to its custom, it should not be permitted to say that there was a forfeiture by reason of the nonpayment. The plaintiff saw the agent of the defendant, with whom she had personally dealt with the approval of the defendant, and paid the first premium. She had a right to believe that he would know what the defendant wanted, and, in the absence of the notice called for by the by-laws, she was not required to send the premium to the home office on pain of forfeiture. Ordinarily a tender is not necessary when the acts and conduct of the other party indicate that it will be futile. Baumann v. Pinckney, 118 N. Y. 604, 23 N. E. 916; Insurance Co. v. Smith, 44 Ohio St. 157, 5 N. E. 417. A company cannot take advantage of a forfeiture that it encourages by a failure to give its accustomed notice before the premium is due. Helme v. Insurance Co., 61 Pa. St. 107. No tender was necessary after the death, as by the terms of the certificate the premiums paid were to be returned to the insured. These considerations lead to the conclusion that the court below correctly held that the defense of forfeiture was not made out. It follows that the judgment should be affirmed. Judgment and order affirmed, with costs. All concur. (73 Hun, 587.) In re MERRIAM'S ESTATE. (Supreme Court, General Term, Second Department. December 1, 1893.) LEGACY TAX-BEQUEST TO UNITED STATES. The legacy tax is imposed on the right of succession, and not on the property, and therefore a legacy to the United States government is subject to the tax. Appeal from surrogate's court, Suffolk county. Appraisement of the estate of William W. Merriam for taxation under the collateral inheritance and legacy tax. From an order affirming an order assessing the cash value of the personalty at the time of testator's decease at $79,284.60, and fixing the tax on the transfer thereof to the United States at the sum of $3,964.23, the United States and Clifford B. Ackerly appeal. Affirmed. Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Jesse Johnson, Dist. Atty., for the United States. James H. Tuthill, (George F. Stackpole, of counsel,) for appellant Ackerly. Timothy M. Griffing and Edward Hassett, for county treasurer of Suffolk county and comptroller of the state of New York. DYKMAN, J. This is an appeal from an order of the surrogate's court of Suffolk county which affirmed an order dated May 22, 1893, assessing the cash value of the personal property of the testator at the time of his decease at $79,284.60, and fixing the tax upon the transfer thereof to the United States government at the sum of $3,964.23. The United States appeals from an order dated September 5, 1886, denying the motion made by the United States of America to set aside and vacate the order of May 22, 1893. William W. Merriam, a resident of the town of Brookhaven, in Suffolk county, died on the 30th day of January, 1889, leaving a last will and testament, which was admitted to probate by the surrogate of Suffolk county, and letters testamentary thereon were issued to Clifford B. Ackerly as sole executor. The testator devised and bequeathed all his estate, both real and personal, to the United States government. Upon the petition of the executor, the surrogate of the county appointed an appraiser to assess and fix the cash value of the property of the testator at the time of his death. The appraiser reported the net cash value of the property at the figures mentioned above, and on May 22, 1893, the surrogate, on motion, made an order confirming said report, and assessed the value of the testator's property at the same amount as reported by the appraiser, and fixing the tax upon the transfer at the figures above named. As the real estate of the testator did not pass to the United States under the will, by reason of the invalidity of a devise of real estate to the United States government, that is not involved in this present controversy. In re Fox, 52 N. Y. 537. We are required to decide, in this case, whether a legacy to the gov ernment of the United States is subject to the imposition commonly denominated the "collateral inheritance tax." The determination of this point seems to be dependent upon the question whether the tax is a tax upon property, or upon the right of succession. The appellants insist that the charge is a tax upon property, and, planting this upon the fundamental principle of law that governmental property is ever exempt from taxation, insist that a legacy to the United States government cannot be diminished by the deduction of its succession tax. Contrariwise, the respondent contends that the tax is a tax upon the right of succession under a will, or by devolution in case of intestacy, or, in other words, a tax upon the privilege of acquiring property by will or inheritance, and is an impost upon the devolution of the estate. If the contention of the appellants is sustained, then the appeal must prevail, for government property is always exempt from taxation. The language of the statute is this: "Section 1. Taxable Transfers. A tax shall be, and is hereby imposed upon the transfer of any property real or personal. Laws 1892, c. 399, § 1. And according to the literal reading the tax is imposed, not levied, upon the transfer, and not upon the property. It is similar to an impost or duty or a tax laid by the government upon property imported into the country, or to the old income tax. In the case of duties upon goods, the property is appraised, and its value constitutes the basis of the impost, as it does under this law, and the same is true of income tax or an excise tax. The property is the subject of the appraisal, but the subject of the tax is the privilege, in all the cases. In the case of Wallace v. Myers, 38 Fed. 184, in the United States circuit, it was decided that, where the property of the decedent includes United States bonds, the tax may be assessed upon the basis of their value, and the tax is not imposed upon the bonds, but is merely a tax upon the privilege of acquiring property by inheritance; and in that case it was said, in the opinion of the court: * * "Such a tax is no more one upon the bonds than an income tax is one upon the property out of which the income is derived, or an excise tax is one upon the articles manufactured or sold. The bonds are the subject of the appraisal, but the privilege is the subject of the tax. The terms of the act of congress of June 30, 1864, (13 Stat. 285,) taxing legacies and successions, are quite similar to those of the present statute in respect to the valuation for assessment. The subject-matter of the assessment under that act was held by the supreme court, in Scholey v. Rew, 23 Wall. 331, to be the devolution of the estate, or the right to become beneficially entitled to it; and the act was considered as taxing a privilege, and not property. In Virginia the highest court of the state has construed a similar statute as imposing the tax, not upon the property, but upon the privilege of acquiring it by will or under the intestate laws. Eyre v. Jacob, 14 Grat. 422; Miller v. Com., 27 Grat. 110. The precise question now presented was considered by the supreme court of Pennslyvania in Strode v. Com., 52 Pa. St. 181; and the court treated the statute, not as taxing property, but as a regulation of the transmission of the property of decedents, and upon that view held that government securities were properly included in the valuation of the inheritance upon which the tax was assessed." So it was also held in Re Swift, 137 N. Y. 77, 32 N. E. 1096, that the tax imposed by the collateral inheritance tax law is not a property tax, but a tax upon the right of succession under a will, or devolution in case of intestacy. In Re Cullum's Estate, reported in the combined official series of New York State Reports and Session Laws for October 14, 1893, (25 N. Y. Supp. 699,) it was decided in the surrogate's court of the city of New York that a bequest to the government of the United States was liable to taxation under the laws relating to taxable transfers of property, and the opinion in that case is quite satisfactory upon this subject. In view of the language of the statute, and the construction it has received, we feel bound to decide that the tax in question is not upon the property bequeathed, but upon the right of succession, and that the orders from which the appeals are taken should be affirmed, with costs. All concur. (73 Hun, 377.) BONNEFORD v. DE RUSSY et al. (Supreme Court, General Term, Fourth Department. December 8, 1893.) APPEAL-SETTLEMENT OF CASE-WAIVER BY STIPULATION. Papers on appeal included what purported to be a case and exceptions, but there was nothing to show that the case and exceptions were ever settled by referee, as required by Code Civil Proc. § 997, or ordered to be filed, as required by rule 35. Held, that the defect was not cured by a stipulation by the attorneys of the parties that "certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed." Appeal from judgment on the report of referee. Action by Francis Bonneford against Emma H. De Russy, impleaded with others. From a judgment in favor of plaintiff for $2,708.23 and costs, defendant De Russy appeals. Remanded for settlement of case. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. MERWIN, J. The papers in this case include what purport to be a case and exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee, as required by section 997 of the Code, or ordered to be filed, as required by rule 35. There is a stipulation over the names of the attorneys for the respective parties stating that "certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed." This does not cure the defect. The provision that the case should be settled by the judge or referee who tried the cause is a wholesome one, (Reese v. Boese, 92 N. Y. 632,) and should be enforced, (Dwight v. Railroad Co., [Sup.] 8 N. Y. Supp. 789; McNish v. Bowers, 30 Hun, 214.) there any certificate of the clerk, under section 1353 of the Code, nor any stipulation of the attorneys, under section 3301 as amended in 1882 and 1890. The case should be sent back for settlement and certification. All coneur. v.26N.Y.s.no.2-13 |