Clarke v. United States, No. 10419.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMARIS, STALEY and HASTIE, Circuit
Citation189 F.2d 101
PartiesCLARKE v. UNITED STATES.
Docket NumberNo. 10419.
Decision Date25 May 1951

189 F.2d 101 (1951)

CLARKE
v.
UNITED STATES.

No. 10419.

United States Court of Appeals Third Circuit.

Argued May 10, 1951.

Filed May 25, 1951.


189 F.2d 102

John Wintersteen, Morse Garwood, Philadelphia, Pa. (MacCoy, Evans & Lewis, Philadelphia, Pa., on the brief), for appellant.

Morton K. Rothschild, Washington, D. C., (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Special Assts. to the Atty. Gen., Gerald A. Gleeson, U. S. Atty., Thomas J. Curtin, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before MARIS, STALEY and HASTIE, Circuit Judges.

MARIS, Circuit Judge.

This is an appeal from a judgment entered against the plaintiff by the District Court for the Eastern District of Pennsylvania in a suit brought by her against the United States to recover income taxes which she alleges have been erroneously exacted.

The plaintiff was the widow of Edward S. Wagner and is coexecutor of his estate with the Provident Trust Company of Philadelphia. Wagner, who was a resident of Montgomery County, Pennsylvania, died August 15, 1939 leaving a very substantial estate. During the course of the administration of the estate certain differences arose between the executors and the plaintiff in her individual capacity and as beneficiary under her husband's will. One of these questions was whether an extraordinary dividend received from the Scott Paper Company, amounting to $37,491.60, should be treated as principal or income.

The other question arose under the Pennsylvania Apportionment Act of July 2, 1937, P.L. 2762, 20 P.S.Pa. § 844. It appears that the decedent and the plaintiff held as tenants by entireties certain real estate and bank accounts which passed to the plaintiff on the decedent's death but which were included in the decedent's gross estate for purposes of federal and Pennsylvania estate taxes. Under the Pennsylvania Apportionment Act the estate tax levied in respect of such jointly owned property is to be prorated and charged against the person to whom the property passes unless the decedent has provided otherwise by his will. By his will Wagner had made provision in this regard as follows: "SIXTH: I will and direct that all estate tax, inheritance tax, succession tax, transfer tax, or any other tax in the nature of any thereof which may be chargeable upon my estate or any portion thereof, or upon any bequest, trust, benefaction or any interest in my estate or any part thereof given or provided for by this my Will, shall be paid out of my general estate, so that all provisions or benefactions of every kind or nature given or made by this my Will shall be free and clear of all taxes as aforesaid." Thus the second dispute between the parties involved the proper interpretation to be put upon

189 F.2d 103
this testamentary provision, the plaintiff contending that it should be construed as imposing upon the decedent's general estate the estate taxes attributable to the property held by entireties and the executors taking the position that those taxes should be charged to the plaintiff

In order to terminate these controversies and to provide for the amicable settlement of the estate a formal agreement was entered into on May 26, 1941 between the Provident Trust Company and the plaintiff as executors and the plaintiff individually. The agreement recited that the questions to which we have referred had...

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3 practice notes
  • Estate of Buder v. Commissioner, Docket No. 77659 and 77660.
    • United States
    • United States Tax Court
    • March 13, 1963
    ...and the receipt for a cash-basis taxpayer of taxable income. Bailey v. Commissioner, supra, Cf. Clarke v. United States 51-1 USTC ¶ 9317, 189 F. 2d 101 (C. A. 3, 1951); Acer Realty Co. v. Commissioner 43-1 USTC ¶ 9213, 132 F. 2d 512 (C. A. 8, 1942) Dec. 12,115 affirming 45 B. T. A. 333 (194......
  • Sanatorium v. Comm'r of Internal Revenue, Docket No. 36540.
    • United States
    • United States Tax Court
    • September 30, 1953
    ...512, or as actual receipt and payment because the credit had the effect of canceling the payee's debt. Clarke v. United States, (C.A. 3) 189 F.2d 101; Estate of W. P. Graff et al., 9 B.T.A. 1116; see William H. Stayton, Jr., 32 B.T.A. 940, 943; Lorenzo C. Dilks, 15 B.T.A. 1294. It was the o......
  • Quirk v. New York, C. & St. LR Co., No. 10334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 25, 1951
    ...court stated: "`Where an employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself 189 F.2d 101 back into the line of his employment, the injury does not arise "out of and in the course of" his employment, * * * but where the personal m......
3 cases
  • Estate of Buder v. Commissioner, Docket No. 77659 and 77660.
    • United States
    • United States Tax Court
    • March 13, 1963
    ...and the receipt for a cash-basis taxpayer of taxable income. Bailey v. Commissioner, supra, Cf. Clarke v. United States 51-1 USTC ¶ 9317, 189 F. 2d 101 (C. A. 3, 1951); Acer Realty Co. v. Commissioner 43-1 USTC ¶ 9213, 132 F. 2d 512 (C. A. 8, 1942) Dec. 12,115 affirming 45 B. T. A. 333 (194......
  • Sanatorium v. Comm'r of Internal Revenue, Docket No. 36540.
    • United States
    • United States Tax Court
    • September 30, 1953
    ...512, or as actual receipt and payment because the credit had the effect of canceling the payee's debt. Clarke v. United States, (C.A. 3) 189 F.2d 101; Estate of W. P. Graff et al., 9 B.T.A. 1116; see William H. Stayton, Jr., 32 B.T.A. 940, 943; Lorenzo C. Dilks, 15 B.T.A. 1294. It was the o......
  • Quirk v. New York, C. & St. LR Co., No. 10334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 25, 1951
    ...court stated: "`Where an employee breaks the continuity of his employment for purposes of his own and is injured before he brings himself 189 F.2d 101 back into the line of his employment, the injury does not arise "out of and in the course of" his employment, * * * but where the personal m......

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