
    OTTO H. KAHN AND HENRI P. WERTHEIM VAN HEUKELOM, AS EXECUTORS OF THE LAST WILL AND TESTAMENT OF ABRAHAM WOLFF, DECEASED, v. THE UNITED STATES.
    
    [No. 33809.
    Decided April 5, 1920.]
    
      On the Proofs.
    
    
      Inheritance tax, refund of; limitations. — Where claims for the refund of legacy taxes have not been filed with the Commissioner of Internal Revenue and suit brought within the time prescribed by Sections 3226 and 3227 of the Revised Statutes, the court has no jurisdiction to consider the same.
    
      Same; parties. — Where claims for the refund of taxes have been filed by the trustees under a will, the executors under the will can not maintain an action for their recovery.
    
      The Reporter's statement of the case:
    
      Mr. Harry T. Newcomb for the plaintiffs. Mr. Frederick L. Fishback was on the briefs.
    
      Mr. Charles H. Bradley, with whom was Mr. Assistant Attorney General Frank Davis, jr., for the defendants.
    The following are the facts of the case as found by the court:
    Abraham Wolff, a loyal citizen of the United States and of the State of New Jersey, residing at Morristown, Morris County, N. J., died on October 1, 1900, leaving a valid last will and testament, which was, on November 7, 1900, duly admitted to probate in the Orphans’ Court of -said county and State, a court of competent jurisdiction, and of which Otto H. Kahn and Henri P. Wertheim Van Henkelom, petitioners herein, are duly appointed, qualified, and acting executors. The said Otto H. Kahn and Henri P. Wertheim Yan Heukelom are loyal citizens of the United States.
    A copy of the will of said decedent is attached to the petition herein marked “ Exhibit A” and is made a part hereof by reference.
    II. The said Abraham Wolff, deceased, left him surviving his daughters, Addie W. Kahn and Clara W. Wertheim, who were the legatees designated in the several paragraphs of his will and also in subdivisions 1 and 2 of the twenty-eighth paragraph thereof, and the legatees designated in the other paragraphs of his will which are incorporated in the body of the petition.
    III. The estate of Abraham Wolff was a large one, amounting to seven or eight million dollars. He had been in business in New York City and had long resided there, having taken up his residence in New Jersey only a short time before his death, and there was some question as to his residence at the time of his death. His will was finally probated in New Jersey, November 7, 1900, but the Comptroller of the State of New York, contending that decedent’s residence was in that State claimed State transfer or inheritance taxes on that basis as against the basis of non-residence claimed by the executors, and the controversy continued until the latter part of 1903. There were some other questions as to interests of the estate involving questions of taxability on the assumption of nonresidence, which, after appeals from the appraiser to the surrogate, were compromised and the appeals dismissed in November, 1903. The comptroller abandoned his contention that deceased was a resident of New York.
    IV. None of the funds directed by the various paragraphs of the will to be paid to the trustees for the benefit of the various beneficiaries named were paid to the trustees- or set apart or established on or before July 1, 1902. For the period from October 1,1900, to July 1, 1902, 21 months, and thereafter, until the payment to the trustees of the sum provided to be paid to them, the legatees named in paragraphs 6 to 22 (except paragraphs 18 and 19) were paid the monthly sums directed in said paragraphs to be paid to them until the trustees should receive the principal sum named therein and for said period of 21 months to July 1, 1902, they were paid by the executors the following amounts:
    
      
    
    Y. Prior to July 1, 1902, Addie W. Kahn, one of the two residuary legatees, was paid by the executors out of the income of the estate, various sums each month from January, 1901, to June, 1902, both inclusive, aggregating from the personal estate $307,488.77 and from income from real estate $23,274.56, a total of $330,763.33.
    VI. Prior to July 1, 1902, Clara W. Wertheim, one of the two residuary legatees, was paid by the executors out of the income of the estate, various sums each month from January, 1901, to June, 1902, both inclusive, aggregating from the personal estate $307,488.73 and from income from real estate $25,274.56, a total of $330,763.29.
    VII. The legacies to Edward S. Steinam, Louis Keller, and Louis Elson, provided by the fourth paragraph of the will, and the legacy to Stanley L. Wolff, provided by the twenty-fourth paragraph of the will, were satisfied prior to July 1,1902.
    VIII. The specific legacies to the two daughters of said decedent, Addie W. Kahn and Clara W. Wertheim (who were also the beneficiaries of the trusts provided to be established out of the residuary estate) provided by the second paragraph of the will were satisfied prior to July 1, 1902, and the clear value of the property passing to each of said daughters under these specific legacies was $5,000.
    IX. Except as stated in Findings IY, Y, YI, VII, and VIII, no legacy in excess of $10,000 in actual or clear value was satisfied in whole or in part or advances made on account of any such legacy prior to July 1,1902.
    X. The statutes of the State of New Jersey, in force during the period material herein, provided:
    (1) That executors must inventory and appraise estates within three months after grant of letters testamentary unless further time is granted by the court.
    (2) That every executor under a will shall state and settle his account in the surrogate’s office within one year after his appointment unless the court for good cause shown should extend the time. (Compiled Stats., N. J., 1910, vol. 3, sec. 114.)
    (3) That in case of an executor’s failure to so settle his account, any person interested in the estate may cite him to make such settlement at the ensuing term. (Id., sec. 116.)
    (4) That if no time is fixed in a will for the payment of Legacies therein created, the executor has one year after probate in which to pay them. Legatees may maintain action against an executor for the payment of legacies after the expiration of one year. (Id., sec. 1.)
    (5) That the orphan’s court or surrogate of the proper county is authorized to give public notice to creditors to present their debts, demands, and claims against the decedent’s estate within nine months from the date of such order by setting up notice in public places in the county and also by advertising the same for a specified time in one or more newspapers of said State.
    (6) That after the expiration of the time in such order limited, the orphan’s court or the surrogate of the proper county upon proof to its or his satisfaction that notice thereof has been set up and advertised as directed, may by final decree order that all creditors who have not brought in their claims within the time in said order directed shall be barred from any action therefor against the executor, and any creditor who has neglected to bring in his debt, demand or claim within the time so limited shall by such decree be forever barred of Ms action against the executor. (Id., sec. 1.)
    XI. On the 7th day of November, 1900, pursuant to an order of the surrogate that day made, public notice was given by the executors to all persons having claims against the estate of the decedent to present the same on or before the 7th day of August next ensuing. Proof was made‘of the setting up of the notice in five public places and of its publication in The Jerseyman once each week for nine successive weeks beginning November 9, 1900. The order of surrogate of date November 7, 1900, was as follows:
    “ On application of the above-named executors it is ordered that the said executors give public notice to the creditors of the estate of said decedent, to bring in their debts, demands, or claims against the same, under oath, within nine months from this date, by setting up a notice of this order, within twenty days hereinafter in five of the most public places in the county of Morris for two months, and also within the said 20 days, by advertising the same in the Jerseyman, one of the newspapers of this State, for the same space of time; and if any creditor shall neglect to exhibit his or her debt, demand, or claim, within the said period of nine months, public notice being given as aforesaid, such creditor shall be forever barred of his or her action therefor against the said executors.”
    And on August 8, 1901, the surrogate made the following order:
    “It appearing by due proof that the notice given pursuant to the order of the surrogate, made on the 7th day of November, 1900, limiting creditors of the estate of the above-named decedent to nine months to bring in their claims and demands against said estate, has been advertised and published according to law:
    “It is ordered that all creditors of said estate who have neglected to bring in their claims and demands against said estate within the time so limited be forever barred from their action therefor against the executors of said decedent.”
    XII. The clear value of the legacies to Edward S. Stei-nam, Louis Keller, Louis Elson, and Stanley L. Wolff, and of the specific legacies to the two daughters of the decedent Addie W. Kahn and Clara W. Wertheim, was ascertained and they were satisfied previous to July 1, 1902.
    
      The values of the legacies in trust provided for in the sixth to the twenty-second (except the eighteenth and nineteenth) paragraphs of the will, of which the persons named in Finding IV were the beneficiaries, were ascertainable before July 1, 1902. The value of the estate was such and known to be such that no pending controversy could affect the value of any but the residuary legacies, and there is no reason shown why these trusts should not have been set up before July 1, 1902. They were not set up before July 1, 1902, and why they were not so set up is not shown except inferentially.
    The clear values of the residuary legacies in trust were not ascertained and could not have been accurately ascertained before July 1, 1902, because of pending questions, the determination of which would to some extent offset their value. The bulk of these trusts could have been set up before July 1,1902.
    XIII. On or about April 4, 1904, Otto H. Kahn, one of the executors, presented to the collector of internal revenue for the fifth district of New Jersey a claim for the refund of $26,637.59 of the legacy taxes paid as aforesaid, which claim was at some time thereafter transmitted to the office of the Commissioner of Internal Revenue.
    Said claimant in an affidavit alleged that the total tax of $107,398.16 was paid because of a notification by the collector that if not paid by a time stated he would proceed to collect the same with penalty and interest; that it was paid under protest; and that $26,637.59 thereof was erroneously, improperly, and illegally assessed for reasons stated. Said sum was made up of three items, as follows:
    (1) The sum of $13,918.53 was alleged to have been erroneously assessed because in valuing the estate of the decedent there had been included therein the sum of $779,108.02 as the value of decedent’s interest in certain syndicate transactions, whereas, in effect, it had been demonstrated that the net value of the decedent’s interest in said transactions was only $49,993, an overvaluation of $729,-115.02.
    (2) The sum of $10,729.97 was alleged to have been erroneously assessed because in valuing the estate of said decedent there was included therein the sum of $600,539.21 as decedent’s interest in the profits of the firm of Kuhn, Loeb & Co., of which he was a member, whereas such interest in said profits did not at the time of the death of the sarid decedent have any ascertainable value nor any value at all, and that the valuation by the commissioner was erroneous and excessive and that by so valuing said interest and including the same in the valuation of the estate he had thereby increased by said sum of $10,729.97 the amount of the tax upon the life interest of the residuary legatees.
    (3) That the sum of $1,989.09 had been erroneously assessed on the future interest of Addie W. Kahn and Clara W. Wertheim in the specific trusts provided in paragraphs 6 to 22 (except 18 and 19) of the will, which trust funds upon the death of the life beneficiaries were to be added to and form a part of the residuary estate, for the reason that the assessment of said amount so made against the life estates of the residuary legatees was upon contingent beneficial interest which prior to July 1, 1902, had not vested in possession or enjoyment.
    The claim with reference to the matter set up in the first and second paragraphs did not assert any erroneous assessment because upon contingent beneficial interests which had not vested in possession or enjoyment. The facts asserted were in support of the contention that the amounts and interests mentioned were erroneously included in the valuation of the total estate.
    This claim was examined and approved for allowance in the sum of $14,008.36 by the chief of the Division of Claims and by the Committee on Claims in the office of the Commissioner of Internal Revenue in April, 1905, and $12,629.23 thereof was rejected. The Commissioner of Internal Revenue thereupon approved the allowance of the claim to the amount of $14,008.36 and its rejection as to said sum of $12,629.23, and it was sent to the auditor for settlement. Upon a revision of the assessment $729,115.02 was deducted from the valuation of the estate as error in syndicate transactions as asserted in the first paragraph of the claim. The tax was recalculated and $13,983.36 of the claim was allowed which, in addition to the matters set up in said first paragraph, included also an allowance of the sum of $1,989.09 set up in the third paragraph of the claim, apportioned to the interests of Addie W. Kahn and Clara W. Wertheim in the respective sums of $915.35 and $1,073.74, and an allowance of $294.70 on account of the assessment against the residuary legatees of the second life interest of Fannie Phillips, under the fourteenth paragraph of the will, and said sum of $13,983.36 was repaid to the executors.
    XIV. On or about the fifteenth of May, 1905, Otto H. Kahn and Louis A. Heinsheimer, who in their affidavit alleged that they, together with Henri P. Wertheim, were the sole trustees of the trusts created by the will of Abraham Wolff, deceased, filed a claim with the Commissioner of Internal Eevenue for the refund of two sums, namely, $13,-986.36 (presumably intended to be $13,983.36) and $37,-673.13, alleged to have been erroneously assessed and collected. The said sum of $13,986.36 ($13,983.36) was alleged to have been included in the sum of $26,637.59 previously claimed (Finding XIII), and was on account of the erroneous inclusion in the valuation of the estate of the decedent of his alleged interest in certain syndicate transactions in which the firm of which he was a member was interested at the time of his death. The said sum of $13,986.36 ($13,-983.36) had been previously allowed, but the payment thereof had been temporarily suspended at the request of the executors. As a basis for the claim of $37,673.13, it was alleged that Clara W. Wertheim had died on August 15, 1903, and that the actual duration of her life estate was, therefore, less than three years. It was also alleged that the value of this life interest had been erroneously computed and an erroneous rate applied and, for the reasons stated, it was alleged that the assessment as against her life estate should have been but $4,408.78 instead of $42,081.91, a difference of said sum of $37,673.13. On June 15, 1905, the Commissioner of Internal Eevenue notified the collector of the fifth district of New Jersey, and directed him to notify the claimants that said sum of $13,986.36 had been allowed on the prior claim and that the claim as to said sum of $37,673.13 was rejected.
    
      On or about November 1, 1905, Otto H. Kahn and Henri P. Wertheim, as executors of the will of Abraham Wolff, deceased, commenced an action in the Supreme Court of the State of New Jersey against Herman C. H. Herold as collector of internal revenue for the fifth district of New Jersey for the recovery of said sum of $37,673.13 with interest, which action was on November 22, 1905, removed to the United States Circuit Court for the District of New Jersey, and in said court, on or about December 11, 1906, judgment was rendered for the plaintiffs against said collector in the sum of $33,703.19 and interest, said sum being a part of the amount which had been assessed and collected upon the interest of Clara W. Wertheim as a legatee under the will of said decedent. In determining the amount of the judgment the court found that the tax properly to be assessed amounted to $10,097.14, which, deducted from $42,081.91, left $31,984.77, for which sum, with interest, a verdict was given, the figures “subject to adjustment and correction by counsel.” (147 Fed., 575 at 585.) Upon appeal said judgment was in May, 1908, affirmed by the United States Circuit Court of Appeals for the Third Circuit. (159 Fed., 608.) On the 12th of December, 1908, a claim predicated upon said judgment was settled by the Auditor for the Treasury Department and allowed in the sum of $44,381.80 and was thereafter paid.
    XV. On June 6, 1911, Mortimer L. Schiff, alleging in his affidavit that he and Otto H. Kahn “ are the sole trustees under the will of Abraham Wolff,” filed a claim, transmitted to the office of the Commissioner of Internal Revenue, for the refund to the trustees of the sum of $44,305.72 of the sum of $107,398.16 paid by the executors.
    The claim alleged the payment of $107,398.16 by the executors, that said sum included $47,877.88 assessed on the interest ■ of Addie W. Kahn as a life beneficiary, that $5,794.22 (included in the sum of $13,983.36) has been refunded, leaving $42,083.26 collected on the interest of Addie W. Kahn and unrefunded, of which it is alleged that $37,121.82 was a tax collected on a beneficial interest which had not vested in possession or enjoyment prior to July 1, 1902. The claim also included $7,193.90 alleged to have been erroneously assessed and collected on the life interests of the beneficiary under paragraphs 6 to 22 (except 18 and 19) of the will, in connection with which it is alleged by the claimant that those beneficiaries, previous to July 1, 1902, had received certain amounts of “ income ” set out in a table submitted, which are the same amounts shown in Finding IV, and that the assessment of said life interests at their determined value according to the mortality tables was erroneous because they were contingent beneficial interests which had not vested in possession or enjoyment before July 1, 1902, and that the difference between the tax actually collected and paid on said life interests and the amount of tax thereon had it been computed and assessed on the amount to which such beneficiaries had become entitled prior to July 1,1902, is said sum of $7,183.90.
    This claim was examined, and on February 28, 1912, was submitted for rejection by the Chief of the Claims Division; rejection was approved by the committee on claims, and on or about that date it was rejected by the Commissioner of Internal Revenue.
    XVI. On November 23, 1915, H. T. Newcomb, a member of the firm of Newcomb, Churchill & Tracy, attorneys for Otto H. Kahn, described as “ executor of the last will of Abraham Wolff, deceased,” filed with the collector of internal revenue for the fifth district of New Jersey, a claim after-wards transmitted to the Commissioner of Internal Revenue, for the refunding of $59,711.61. The claim recited the allowance and repayment of $13,983.36 and $33,703.19, and the amount of the claim was the difference between the sum of those amounts and the total tax of $107,398.16. Refund was claimed on the ground that it was a tax on legacies, which had not vested in possession or enjoyment prior to July 1, 1902, and that the legacies left in trust by the will had not been turned over to the trustees prior to that date.
    On August 14, 1916, the claim was rejected by the Commissioner of Internal Revenue.
    XVII. After a return by the executors of the personal estate of the decedent, with a schedule of legacies arising under the will, and after investigation and correction under the direction of the Commissioner of Internal Revenue, the collector of internal revenue of the fifth district of New Jersey assessed a tax of $107,398.16 as a legacy tax under section 29 of the act of June 13, 1898, and amendments, and on October 26, 1903, notified the executors of such assessment, and on November 5,1903, or, theretofore, as to part the executors paid said amount to said collector who, in the usual course of business, paid the same into the Treasury of the United States. Directions to the collector from the Commissioner of Internal Eevenue as to the assessment of “ this balance tax due” contained a summary of “bequests as amended by this office ” with tax to be assessed thereon, in which appears “ Total tax, $107,398.16,” “ Tax paid, $68,-533.10,” and “ Tax due, $38,865.06.” Whether the whole amount of $107,398.16 was paid November 5, 1903, as appears in parts of the record, or whether $68,533.10 thereof had been previously paid can not be found.
    The amounts assessed and collected in respect of the several interests in said estate were as follows:
    
      
    
    
      The assessment against the legacy of Fannie Phillips in the sum of $294.70 and the amount of $1,989.09 assessed on remainder interests of Addie W. Kahn ($915.35) and Calara W. Wertheim ($1,073.74) in “other reversions” were the sums included in the allowance of $13,983.36 on the claim of April 4, 1904, set out in Finding XIII, and the remainder ($11,699.57) allowed on said claim was properly apportioned to the interests of Addie W. Kahn and Clara W. Wertheim in the sums,' respectively, of $5,794.22 and $5,905.35.
    There was allowed and repaid on account of the residuary life interest of Clara W. Wertheim, as shown in Finding XIY, the principal sum of $33,703.19 and interest.
    No other part of said tax was refunded.
    The tax collected on the legacies of Edward L. Steinam, Louis Keller and Louis Elson provided in the fourth paragraph of the will and of Stanley L: Wolff provided in the twenty-fourth paragraph thereof, which had been satisfied prior to July 1, 1902, was $825.75.
    XVIII. Certain regulations promulgated by the Secretary of the Treasury and in force during the period herein involved were as follows:
    “ Claims for the refunding of assessed taxes and penalties must be made out upon Form 46. In this case, as in that of claims for abatement upon Form 47, the burden of proof rests upon the claimant. All the facts relied upon in support of the claim should be clearly set forth under oath. The claim should be still further supported by an affidavit of the deputy collector of the proper division and by the certificate of the collector.
    “A claim for refunding should be made in the name of the party assessed, if living; if he is dead, there should be evidence of his death and the claim should be made in the name of the executor or administrator. Certified copies of the letters of administration or letters testamentary, or other similar evidence, should be annexed to the claim to show that the claimant is administrator.”
    In Treasury Decision No. 552, rendered with reference to section 29, act of June 13, 1898, is the following paragraph :
    “When the decedent died prior to July 1, 1902, and the property was left in trust by the will, but had not been turned over to the trustee before July 1, 1902, legacy tax will not accrue.”
    Said holding was in no way revoked or modified.
    
      
       Appealed.
    
   DowNey, Judge,

delivered the opinion of the court:

The action is to recover an unrcfunded portion of certain legacy taxes assessed and collected on life estates provided in the will of Abraham Wolff, deceased, upon the ground that the assessments were upon contingent beneficial interests not vested in possession or enjoyment prior to July 1, 1902. The facts fully appear in the findings and will not be repeated here. And for manifest reasons which will appear, questions involved may be disposed of without lengthy discussion except perhaps in one respect.

Since under the statute, section 3226, a claim for refund must be first made to the Commissioner of Internal Revenue before any action can be maintained in this or any other court, it is proper first to notice the claims filed with the Bureau of Internal Revenue which are relied upon as the. basis for this action, and they may best be disposed of by referring to them in their inverse order.

The last claim (Finding XVI) was filed on November 23, 1915, by one of the attorneys for Otto H. Kahn, one of the executors, and claimed a refund of $59,711.61, the total unrefunded balance of the taxes assessed and collected, and this claim was specifically predicated upon the ground that the tax collected was a tax on legacies which had not vested in possession or enjoyment prior to July 1,1902. This claim was clearly filed too late. The act of July 27, 1912 (37 Stat., 240), had raised the bar of limitation imposed by existing statutes, but it had specifically required that claims thereunder should be filed on or before the first day of January, 1914. No discussion of the question seems necessary. Coleman v. United States, 250 U. S., 30.

The next preceding claim asking a refund of the unre-funded portion of the tax assessed against the life interest of Addie W. Kahn, one of the residuary legatees, was filed June 6, 1911, by Mortimer L. Schiff, one of the trustees under the will of. the decedent (Finding XV). Aside from another question which will be suggested later, it seems to us sufficient, so far as this claim is concerned, to call attention to the fact that the tax was paid by the executors under a provision of the will of the decedent, this action is brought by the executors and this claim was filed by one of the trustees under the will. It seems to us so clear that it can not constitute the required basis for this action or any part thereof, that we again refrain from discussion. Rand v. United States, 249 U. S., 503.

The next preceding claim was filed on May 15, 1905, by Otto H. Kahn and Louis A. Heinsheimer, trustees under the will of the decedent. A part of this claim had been already allowed, the balance was disallowed, suit was brought against the collector, judgment was rendered, and it is apparent from the conclusion of the court referred to in the finding that all matters involved as to the full amount of the claim were adjudicated. We are aware of the holding that an adjudication against the collector of the internal revenue is not necessarily res judicata so far as the United States is concerned, but if this claim were not otherwise to be disposed of it might be for consideration that the judgment rendered became the basis of a claim filed by the executors against the United States upon the allowance of which the payment was made. But so far as the minor portion of this claim, which was not included in the judgment and thus not paid, is concerned, it is sufficient, in line with what has been suggested, to call attention to the fact that this claim was filed by trustees and not by the executors.

The next preceding claim (Finding XIII), and the only one left for consideration, was filed April 4, 1904, by Otto H. Kahn, one of the executors. We are mindful of what has been said by the 'Supreme Court in the Sage case, 250 U. S., 33, but since some doubt exists in our minds as to the application of the rule laid down in that case, under the facts as they appear in the instant case with reference to the consideration of this claim as a proper basis for this action, we venture to suggest the provisions of the statute which seem to us clearly to bar any action predicated upon this claim. We quote sections 3226 and 3227 of the Revised Statutes:

Sec. 3226. No suit shall be maintained in any court for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until appeal shall have been duly made to the Commissioner of (the) Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury established in pursuance thereof, and a decision of the Commissioner has’ been had therein: Provided, That if such decision is delayed more than six months from the date of such appeal, then the said suit may be brought without first having a decision of the Commissioner at any time within the period limited in the next section.
“ Sec. 3227. No suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court unless the same is brought within two years next after the cause of action accrued: Provided, That actions for such claims which accrued prior to June six, eighteen hundred and seventy-two, may be brought within one year from said date; and that where any such claim was pending before the Commissioner, as provided in the preceding section, an action thereon may be brought within one year after such decision and not after. But no right of action which was already barred by any statute on the said date shall be revived by this section.”

Section 3227 prohibits the maintenance of any suit in any court unless the same is brought within two years next after the cause of action has accrued. This claim was filed April 4, 1904. The cause of action accrued under the statute when the Commissioner of Internal Revenue rejected the claim or, if he did not act, when his decision thereon had been delayed for more than six months. The claim in part rejected was not refiled under the act of 1912, and no action was had thereon after its original rejection by the Commissioner of Internal Revenue. But conceding that the right of action thereon was revived by the act of 1912 and applying the holding in the Sage ease, that until January 1, 1914, no statute of limitations could begin to run, which as to this case must be regarded as a liberal holding, it is still apparent that under section 3227 no action could be maintained with this claim as its basis unless it were brought on or before January 1, 1916. This action was commenced July 2, 1917. The general statute of limitations in this court (section 156, Judicial Code) is not permissive in form in the sense that it specifically permits any action of which this court has jurisdiction to be brought at any time within six years, notwithstanding any other statute, but it forever bars any claim unless sued upon or transmitted within six years, and hence there is no necessary conflict between it and the provisions of section 3227, applicable to a particular class of cases,' prohibiting the maintenance of any suit of this character in any court unless brought within two years. Fort Pitt Gas Co. v. United States, 49 C. Cls., 224 at 234, citing Christie-Street Com. Co. v. United States, in the Circuit Court of Appeals for the Eighth Circuit, 136 Fed., 326, in which it was said: “It is an action directly against the United States, and the logical and unavoidable conclusion is that it was barred by the limitation of section 3227, because it was not commenced until more than two years after the cause of action it presents accrued.” And the last-named case is cited with approval in United States v. Emery, 237 U. S., 28-32, although it was a jurisdictional question in this class of cases there under discussion, and it is said, as to these cases, that they are “ founded upon the revenue law” of which section 3227 is a part. But for the Sage case, we would entertain the opinion that there could be no question that an action predicated upon this claim was barred in two years, and we entertain such doubt as to whether the Supreme Court intended under such circumstances to substitute the six-year statute of limitations in this court for the express provision of section 3227, that we venture to suggest the question.

Aside from this question there is another feature of this claim to which we call attention. The basis of the claim as to the different amounts going to make up the aggregate was stated in three separate paragraphs. As appears clearly from the findings the portions of the claim set up in paragraphs 1 and 2 were predicated solely upon averments of error in the inclusion of certain interests in the aggregate amount of the estate and upon the theory necessarily that the improper augmenting of the aggregate amount of the estate went to augment the value of the life estates of the residuary legatees on which a tax was assessed; but there is in these paragraphs of the claim no suggestion whatever that these life estates were not taxable. The only questions raised went to the amount. On the contrary, in the third paragraph of the claim wherein refund was sought of a tax assessed upon reversionary interests of these residuary legatees in certain specific trusts, the claim was specifically made that the assessment of these reversionary interests as part of the life interest of the residuary legatees was an assessment upon contingent beneficial interest, which prior to July 1, 1902, had not vested in possession or enjoyment. The basis of the claim as to the first and second paragraphs is not only clearly stated but the theory upon which it is predicated is the more apparent because of the inclusion, in the third paragraph, of the ground upon which recovery is now sought and its exclusion from the first and second paragraphs. And it is to be observed that all of the claim which was predicated upon the ground that the assessment was upon a contingent beneficial interest was allowed and repaid. While the question is one, as far as we know, which has never been specifically decided, we are clearly of the opinion that the claim as presented being upon an entirely different theory from that upon which the action is predicated and, excluding by implication from its terms the theory of the subsequent action, and in effect conceding, except as to amount, the propriety of the taxes, is not such a claim as the law contemplates must be filed with the Commissioner of the Internal Eevenue before action such as this can be maintained in this court.

We conclude that the plaintiffs are not entitled to recover.

GRAham, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  