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"All estates upon remainder or reversion which vested prior to June 30, 1885, but which will not come into actual possession or enjoyment of the person or corporation beneficially interested therein, until after the passage of this act, shall be appraised and taxed as soon as the person or corporation beneficially interested therein shall be entitled to the actual possession or enjoyment thereof."
An attempt was made to tax the remainders under the act just referred to. The court said:
"That, where there was a complete vesting of a residuary estate before the enactment of the transfer tax statute, it cannot be reached by that form of taxation. In the case before us it is an undisputed fact that these remainders had vested in 1863, and the only contingency leading to their divesting was the death of a remainderman in the lifetime of the life tenant, in which event the children of the one so dying would be substituted. If these estates in remainder were vested prior to the enactment of the transfer tax act, there could be in no legal sense a transfer of the property at the time of possession and enjoyment. This being so, to impose a tax based on the succession would be to diminish the value of these vested estates, to impair the obligation of a contract, and to take private property for public use without compensation."
In the Matter of Vanderbilt, 172 N. Y. 69, 73, 64 N. E. 782, the court, referring to the Pell Case, said:
"In that case the interests of the devisees and legatees attempted to be taxed were given by the will of the testator, who had died long prior to the enactment of any inheritance tax. Technically they may have been, and probably were, vested subject to be divested by death before the demise of the life tenant, but in the ordinary sense of the term they were contingent; that is to say, it was impossible to determine who would actually enjoy the property until the death of the life tenant. Nevertheless, the interests of the devisee accrued on the death of the testator, and at that instant, and were immune from legislative attack, whether contingent or vested."
In the case at bar I think the plaintiff's rights accrued at once the partnership agreement was entered into. They were absolute and irrevocable so far as the parties were concerned, and were contingent only upon the happening of an event which did happen. The case appears to me to be within the principle laid down by the above authorities.
My conclusion, therefore, is that the fund taxed accrued to De Witt C. Blair, under an irrevocable contract entered into prior to the passage of the war revenue act, which agreement was based upon valuable and sufficient considerations which were contractual, and that said fund was transferred by said contract, and that such transfer did not constitute a gift within the meaning of said act; further, that the partnership agreement was self-operative, and operated, independently and without the aid of the will of John I. Blair, to transfer to De Witt C. Blair immediately upon the death of John I. Blair the fund in question. Furthermore, since the rights of De Witt C. Blair rested in contract, and accrued at its inception, the same result would be reached, even if technically and momentarily such rights, while in transit to De Witt C. Blair, their grantee and owner, rested in the executor of John I. Blair.
Other points have been raised, and elaborately argued by the counsel of the plaintiff, but under the circumstances it is unnecessary to discuss them.
I accordingly find for the plaintiff and against the defendant in the sum of $29,729.97, being the amount of the tax paid, besides interest thereon from July 2, 1906, the date of its payment, until judgment shall be entered hereon.
UNITED STATES v. BURKETT et al.
(District Court, D. Kansas, S. D. January 14, 1907.)
An indictment charging that defendants conspired together to defraud the government of the title to a portion of the public domain, to wit, etc., and in pursuance of the conspiracy performed the overt acts of obtaining and using before the register and receiver of the local land office false and bogus affidavits represented by defendants to be genuine in making proof of a timber culture entry theretofore regularly made on the land by H., since deceased, under an agreement with his widow that they were to succeed by conveyance from her to all the rights of the government secured by virtue of a patent issued by the government based on such proofs, was not defective for uncertainty.
[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 79-87, 97.]
2. SAME-DEFRAUDING GOVERNMENT-PUBLIC LANDS-TIMBER CULTURE ENTRY -PROOF-DELAY.
Act Cong. June 14, 1878, § 2, 20 Stat. 113, c. 191, provides that no final certificate shall be given or patents issued for land entered under a timber culture claim until eight years after the date of the entry, and if at the expiration of such time, or at any time within five years thereafter, the entryman or his heirs or legal representatives shall prove the planting and cultivation of the necessary quantity of trees, etc., they shall receive a patent to the land. Land Department rules 32 and 33 provide for the determination of suspended claims based on homestead and timber culture entries where there has been a substantial compliance with the law in good faith, but there had been a failure to make final proof within the time fixed therefor, resulting from ignorance of the law, mistake, sickness, or other uncontrollable obstacle. Held that, where a timber culture entry was not forfeited by the Land Department for the entryman's failure to make final proof within five years next succeeding the expiration of eight years after the entry, it did not become absolutely void, but was merely suspended, and was therefore sufficient to sustain a prosecution for conspiracy for combining to obtain title to the land by false and fraudulent proof.
3. STATUTES-CONSTRUCTION-EFFECT OF DECISIONS OF LAND OFFICE.
While the Land Decisions of the Interior Department are not binding on the federal courts, yet, when the construction of a doubtful or obscure statute by the department has been uniform, the court will accept such interpretation as the proper one.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 296, 297.]
4. CONSPIRACY-INDICTMENT-OVERT ACTS.
In a prosecution for conspiracy, it is not necessary to charge all the overt acts done or necessary to be done to render the object of the conspiracy effective, or to charge that the unlawful conspiracy proceeded to a successful determination as designed; it being sufficient that the conspiracy, unless interrupted, might have accomplished its unlawful purpose. [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 79, 85-89.]
H. J. Bone, U. S. Atty., and J. S. West, Asst. U. S. Atty.
I. E. Lambert, E. D. McKeever, W. S. McClintock, H. C. Sluss, and Osmond & Cole, for defendants.
POLLOCK, District Judge. Defendants presented to and indicted by the grand jury for the offense of criminal conspiracy, under section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676], demur to the indictment. The matter has been fully presented in oral argument, and submitted on printed briefs by counsel for the respective parties. The indictment, at some length, but with some lack of clearness and positiveness of statement, charges the defendants with the crime of conspiring together for the purpose of defrauding the government out of the title to a portion of the public domain, to wit, the S. E. 4 of section 21, township 34, range 36 west, of the Sixth Principal Meridian, Stevens county, this state. And in pursuance of the conspiracy so formed, and in furtherance of its object to have performed the overt acts of obtaining and using before the register and receiver of the local land office false and bogus affidavits, represented by defendants to be genuine, in making proof of a timber culture entry theretofore regularly made on the land by one Byers W. Huey, now deceased, under an arrangement and agreement with his widow that they were to succeed by conveyance from her to all rights of the government secured by virtue of a patent issued by the government based on such proofs.
While it is contended by counsel for defendants the indictment does not clearly so charge, yet from a careful reading and study of its language I am inclined to the opinion the indictment does sufficiently charge defendants, as stated, and I am further of the opinion in so charging it is sufficient to fully apprise defendants of the nature and character of the offense preferred against them to enable them to make a defense thereto, and to plead any verdict and judgment rendered thereon in bar of a future prosecution for the same offense, and therefore it is in law sufficient. United States v. Martin, 4 Cliff. (U. S.) 163, Fed. Cas. No. 15,728; United States v. Nunnemacher, 7 Biss. (U. S.) 121, Fed. Cas. No. 15,902; U. S. v. Goldberg, 7 Biss. (U. S.) 175, Fed. Cas. No. 15,223; In re Wolf (D. C.) 27 Fed. 606.
However, the demurrer raises for decision another question of serious moment. It is this: Conceding the indictment does sufficiently charge defendants with all the essential ingredients of the offense of criminal conspiracy under the section above named, it is contended by counsel for the defendants that the indictment on its face charges such facts as render the object of the conspiracy impossible of accomplishment; that is to say, conceding the charge made against defendants, as stated, to be true, yet it is further contended the indictment on its face in charging the means by which the unlawful confederacy and agreement was to be effected shows the government could not by any possible means have been defrauded out of its title to the land. Therefore it is insisted it fails to charge a punishable offense. This question arises on the face of the indictment, and appears in this way: The indictment charges Byers W. Huey to have applied to the appropriate local land office to make timber culture entry of the land in question in the year 1890. It further charges that defendants conspired to defraud the
government out of its title to this land, and to have done the overt acts charged against them in furtherance of its accomplishment in the month of September, 1903. Therefore, as more than 13 years had expired from the date of the entry to the formation of the conspiracy and the doing of the overt acts charged against defendants, to wit, the furnishing of false and bogus proofs in support of the entry, that entry was by the provisions of law made by Congress in that respect forfeited, canceled, inoperative, dead, of no effect, and could not be supported by the proofs made by defendants, notwithstanding it may not have been in fact marked canceled on the records of the land office, and the case of Northern Pacific Railway v. De Lacey, 174 U. S. 622, 19 Sup. Ct. 791, 43 L. Ed. 1111, is cited and relied upon in support of this contention. On the other hand, it is the contention of the government that under the law and the rules of procedure promulgated by the General Land Office in pursuance of law the timber culture entry of Huey did not by lapse of time become dead and of no effect, but that until the actual cancellation of the entry on notice it might be supported by the proofs made, and as a result of such proofs, and others, a patent might issue thereon. If it be true, as contended by counsel for defendants, that the timber culture entry of Huey became dead and of no effect at the expiration of 13 years from date of the entry under positive provisions of the law applicable thereto, then it is not shown by the indictment that any such entry was in existence at the time of the making of the conspiracy or the obtaining and using of the false and spurious proofs in question. Therefore, as the entire object of the conspiracy, no matter how immoral and vicious it may have been, must as a matter of law fail of its purpose to defraud the government out of its title to the land in question, it sounds to reason and common sense the charge made against defendants must fall of its own weight, as would the charge of forging a mere nudum pactum, and the demurrer must be sustained. People v. Shall, 9 Cow. (N. Y.) 778.
But is the contention of defendants sound? Was the timber culture entry of Huey, under the statutory provisions relating thereto, dead and of no effect, hence incapable of being supported by the proofs charged to have been made and furnished by defendants to the officers of the local land office? If not, it is clear the government might and may have been defrauded out of its title to the land in question by the conspiracy and acts done by defendants, and, if so, the demurrer must be overruled. The solution of this problem has involved an examination of the provisions of statutory law relating to the timber culture entry of Huey, the rules of practice obtaining in the Land Department of the government promulgated in pursuance of law, and the decisions of courts, of the Secretary of the Interior, and Commissioner of the General Land Office construing the same. The act in force at the time Huey made his application to enter the land in question as a timber culture claim was Act June 14, 1878, 20 Stat. 113, c. 191, which act, by section 2, among other things, provides:
"That no final certificate shall be given, or patent issued, for the land so entered, until the expiration of eight years from the date of such entry; and if, at the expiration of such time, or at any time within five years thereafter, the person making such entry, or, if he or she shall be dead, his or her
heirs or legal representatives, shall prove by two credible witnesses that he or she or they have planted, and, for not less than eight years, have cultivated and protected such quantity and character of trees as aforesaid * they shall receive a patent for such tract of land."
Section 5 provides:
"That the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations consistent with this act, as shall be necessary and proper to carry its provisions into effect; and that the registers and receivers of the several land offices shall each be entitled to receive two dollars at the time of entry, and a like sum when claim is finally established and the final certificate issued."
Section 6 provides:
"That the fifth section of the act entitled 'An act in addition to an act to punish crimes against the United States, and for other purposes,' approved March 3, 1857, shall extend to all oaths, affirmations, and affidavits required or authorized by this act."
By act of March 3, 1891, c. 561, 26 Stat. 1095 [U. S. Comp. St. 1901, p. 1535], after Huey's entry had attached, the foregoing act of 1878 was repealed, but this act preserved Huey's rights in the land unimpaired to him and the time within which final proofs could be made was preserved as before. This later act was in unimportant matters further modified and amended by Act March 3, 1893, c. 208, 27 Stat. 593 [U. S. Comp. St. 1901, p. 1416], and Act March 4, 1896, c. 40, 29 Stat. 43 [U. S. Comp. St. 1901, p. 1537]. On April 10, 1890, the Commissioner of the General Land Office, in conjunction with the Secretary of the Interior and the Attorney General of the United States, promulgated certain additional regulations by which suspended claims are decided under sections 2450 to 2457, Rev. St. [U. S. Comp. St. 1901, pp. 15181526], as amended by act of Congress of February 27, 1877, as follows: "Rule 32. All homestead and timber culture entries in which the party has shown good faith, and a substantial compliance with the legal requirements of residence and cultivation of the land, in homestead entries, or the required planting, cultivating, and protecting of the timber, in timber culture entries, but in which the party did not, through ignorance of the law, declare his intention to become a citizen of the United States until after he had made his entry, or, in homestead entries, did not from like cause perfect citizenship until after the making of final proof, and in which there is no adverse claim.
"Rule 33. All homestead and timber culture entries in which good faith appears, and a substantial compliance with law, and in which there is no adverse claim, but in which full compliance with law was not effected, or final proof made, within the period prescribed, or residence established on the land, in homestead entries, within the time fixed therefor by statute, or official regulation based thereon, and in which such failure was caused by ignorance of the law, by accident or mistake, by sickness of the party or his family, or by any other obstacle which he could not control."
From a consideration of the above-quoted statutory provisions and rules of the Land Department of the government as construed in the many decisions emanating from the office of the Secretary of the Interior and the Commissioners of the General Land Office, the following rules of decision will be found to appear: (1) Final proofs of timber culture claims could not be made within eight years next succeeding the date of entry. These years were intended to be spent in the preparation and cultivation of the ground and planting trees thereon. (2) Final proofs of compliance with the provision of the law by the claim