Armour v. Roberts
| Decision Date | 09 March 1907 |
| Docket Number | 2,904. |
| Citation | 151 F. 846 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | ARMOUR et al. v. ROBERTS, Internal Revenue Collector. |
Frank Hagerman, for plaintiffs.
A. S Van Valkenburgh, U.S. Atty., and L. J. Lyon, Asst. U.S Atty., for defendant.
This case is pending on a demurrer of the defendant to plaintiffs' amended petition.
The amended petition recites that September 27, 1901, Kirkland B.
Armour a resident citizen of Kansas City, Mo., died, leaving surviving him his widow, Annie H. Armour, and his three children, Andrew Watson Armour, born April 3, 1882, Lawrence h. Armour, born March 8, 1888, and Mary Augusta Armour, born October 4, 1893. Kirkland.b. Armour left a will naming the plaintiffs, Charles W. Armour and annie H. Armour, as executor and executrix of his estate, by which will he devised the homestead and the contents thereof to his window, and all the balance of his estate he lift in equal proportions to his widow and said three minor children, the interests of said minor children to be held during their minority by the said Charles W. Armour and Annie H. Armour as trustees, with full power to invest, exchange, sell. and dispose of the property vested in them as they should see fit, and providing that there be no right of possession or enjoyment in said minor children during their minority, and providing that the interests going to said children were not capable of being immediately possessed on enjoyed by them. October 18, 1901, said Charles W. Armour and Annie H. Armour were, by the probate court at Kansas City, duly appointed and qualified as executor and executrix of said estate, which they did upon proper notices and proceedings, and the said estate was finally closed, and their accounts as executor and executrix finally settled by order of the said probate court February-, 1904, and they were discharged, and the said estate was ordered to be delivered to the said trustees. But the claim and cause of action herein was never in any way divided or split up, but the same, with other personal property held by the said trustees and Andrew Watson Armour, was held without any division between them or between any of the parties. Prior to September 25, 1902, and until the . . . day of May, 1904, when he died, one Frank D. Roberts was United States collector of internal revenue in the district of which Kansas City, Mo., is and was a part. June 1, 1904, the defendant herein was appointed and qualified as his successor, and he ever since has been and still is such collector for said district. September 25, 1902, the said executor and executrix of said estate, at the demand of the said Frank D. Roberts, as collector, made a return to him of said estate and of the legacies therein, upon the forms prepared by and under the direction and authority of the Commissioner of Internal Revenue, and the United States, by the said Internal Revenue Commissioner, made a pretended levy and assessment, under the law regulating the taxation of legacies and inheritances, against the said estate and the legacies passing therefrom. Said levy and assessment made the said tax aggregate $51,751.59, which amount the said collector demanded of the said executor and executrix, and threatened to enforce the payment thereof with penalties, by reason of which, September 26, 1902, the said executor and executrix, out of the general funds of the estate and in a lump sum, paid to the said collector under protest, and with notice that the said tax was illegal, and that steps would be taken to have the same refunded and recovered. The assessment of legacies and distributive shares arising from personal property of every kind of said estate, in charge of said executor and executrix, aggregated $3,680,113.56, of which amount one-fourth was found to be exempt, because under the will such was the amount that would be taken by the widow. The amount of the legacies of the said legatees, their relationship to the deceased, the amount levied and claimed to be subject to taxation, the rate of taxation, and the amount then and there demanded by the United States and paid as aforesaid to Frank D. Roberts as collector, is set out in the schedule, assessment, and levy, which were in these words:
November 18, 1902, said executor and executrix in writing, under oath, and upon a form prepared by the Internal Revenue Commissioner for such cases, appealed to said Commissioner, and made application to him to have said sum of $51,751.59 so paid refunded, stating in detail and in form satisfactory to the Commissioner the claim of illegality, but the said appeal was by the said Commissioner denied, and he, after a hearing, refused to refund the said sum and tax paid, or any part thereof. The claim of the United States was wholly illegal, and the assessment and levy made were void, and the collection of said taxes wholly unauthorized by law. None of the legacies so taxed had vested when the tax was levied or collected, none of them capable of being immediately possessed or enjoyed, and none of them could, under the terms of the will, vest until the legatee reached majority. Each and every act of the collector herein mentioned was done under the direction of the Commissioner of Internal Revenue and proper officers of the United States. Plaintiffs pray judgment for the sum of $51,751.59, with interest at the rate of 6 per cent. per annum from September 25, 1898, and for costs. Such is the amended petition.
The defendant has demurred thereto, on the grounds: (1) There is a misjoinder of parties plaintiff. (2) Several causes of action have been improperly united. (3) Facts sufficient to constitute a cause of action are not stated. (4) There is no cause of action stated against the defendant, Charles W. Roberts, collector.
First as to the objection of misjoinder of parties plaintiff, and of causes of action. If allowable, and if this case were by a bill in equity, the objection of multifariousness would not avail defendant. The pivotal question in the case is, as to whether the action can be maintained against the defendant to recover back the moneys thus paid. That question is common to all the plaintiffs, and no additional expense would be incurred by the defendant whether the action was brought by one or all the plaintiffs, and the evidence would be the same. But this is an action at law, and defendant contends that there is a misjoinder. The purpose in adopting a code of practice was to, in large part, make the principles of equity practice controlling in actions at law. The technicalities of the common law could be learned, but too often by no two men concerned in a case, at the bar or on the bench, alike. Needless expense, parties wrongly thrown out of court, multiplicity of suits, and delays were supposedly made matters of history when the Codes were enacted. So that if the parties have a common interest, although differing in value, they can all join. And if one refuses to join he can be made a defendant, and one adjudication puts all the questions at rest. And the objection so often stated, that complications will arise in taking a verdict of a jury, is an objection of no force. Under most of the Codes the court upon request must...
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Moffett v. Commerce Trust Co.
... ... Adler, 188 Mo.App. 607; Crenshaw v. Ullman, 113 ... Mo. 633; Burford v. Aldridge, 165 Mo. 419; Perry ... v. Roberts, 23 Mo. 221; Citizens Trust Co. v ... Tindle, 272 Mo. 681; Wilson v. Hartford Fire Ins ... Co., 300 Mo. 1; Hotchkiss v. Ogle, 153 Kan ... 156; 24 C.J., sec. 2042; McLain v. Atlas Assur. Co., ... 67 S.W.2d 849; State ex rel. Utilities P. & L. Co. v ... Ryan, 337 Mo. 1180; Armour v. Roberts, 151 F ... 846; Pollard's Lessee v. Hagen, 3 How. 212, 11 ... L.Ed. 570; Cowles on Treaties and Constitutional Law; ... Dred Scott ... ...
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...It is one of the responsibilities, which, under the act of February 8, 1899, may be passed to the successor in office. Armour v. Roberts (C.C.) 151 F. 846, 852.) * * The brief closes as follows: "* * * We therefore submit that the purpose of the Act of February 8, 1899, is to protect the ri......
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