issue as may be born of their marriage or any his deceased mother's estate) annually to subsequent marriage of my said son, Lewis Lewis Vaughan Clark for his separate supVaughan Clark, during the minority of such issue. port at a total of $6,000. Since any residue goes back into the corpus of the trust fund, the codicil's provision does not affect appellant's interest in any manner, so far as we are here concerned. In other words, and reduced to its simplest analysis, is a bequest of an income for life, or till the legatee's divorce and remarriage, “payable annually in monthly installments" by a trustee "in such sums as the trustee shall deem advisable and just,” out of an estate devised in trust for that sole purpose, taxable under the terms of the Collateral Inheritance Tax Statutes? tions 309-331, R. S. 1909. Sec

""The said trustee, from the net income derived from the trust estate as aforesaid, shall annually pay in equal monthly installments during the lives of said Lewis Vaughan Clark, and Grace Clark, and to each, severally and separately, in such proportions as it may deem advisable and just, for their joint and separate support, considering their joint or several comfort, necessities and station in life, such part or all of said income, as it may determine to be necessary. "In the event of the death of my son, Lewis Vaughan Clark, Grace Clark, surviving him, leaving no issue by their marriage or any subsequent marriage of my said son Lewis Vaughan Clark, such part or all of the income as said trustee may deem necessary or reasonable or just for her support and maintenance, considering her circumstances and station in life, shall be paid to her at all times as such trustee may determine. If issue, either by the present or any subsequent lawful marriage of my said son, Lewis Vaughan Clark, should survive him also, then such income shall be apportioned by said trustee between such issue and said Grace Clark, until her death and the attainment of majority by the youngest issue aforesaid, as such trustee may, in its judgment, determine.

While in this paragraph eighth of this will, I have heretofore provided for the said Grace Clark during her life, it is my will and I direct that, if she should marry again after the death of my son, Lewis Vaughan Clark, or after a legal separation between them, then at the time of her marriage, her interest in the trust estate shall end, with the same effect as if she had died. ""The beneficiaries shall not incumber and sell

The will of Charles Clark, deceased, set forth certain contingencies, on the occurrence of which it may be said to be inferable that the income accruing to appellant might be increased to a sum equal to the whole income from one-fourth of the estate. But any change seemingly worked in the question stated by these contingencies will, on inspection, be found apparent and not real, since, in all cases any increased payment by the trustee to appellant is contingent upon her necessities as interpreted by the trustee's discretion, thus leaving the entire matter as nebulous as before. In short, no subsequent contingency so modifies the situation as to render inaccurate our statement above of the ultimate question involved.

or convey or in any manner anticipate his or her interests in the trust fund, principal or in- [1] Attending now specifically to the last come, and any such sale, transfer, assignment, question put, since in the view we take of the or incumbrance shall be utterly void; and if case it may be disposed of upon that point any creditor attempt by suit or otherwise to subject the interest of any beneficiary to the alone, we are of the opinion that the inpayment of any of the debts of such beneficiary, come here provided for appellant vests in then and thereafter the trustee shall not be possession at once. Its taking effect as a beobliged to make payments as hereinbefore provided, to such beneficiary or beneficiaries request of an income is not postponed to the spectively, but during the rest of the period happening of any contingency whatever; during which the trust is to continue, may in its discretion apply such sums, or such part there of as it thinks reasonable, for the support or comfort of the beneficiaries, or the family of the beneficiaries, respectively. The trustee shall semiannually render to the beneficiaries a written statement and account of the transaction of the trust estate during the preceding half year.'"

There are certain codicils attached to the will, which deal with the interest of testator's son Lewis Vaughan Clark, the husband of appellant, but counsel seem to take the view, in which after a careful reading we acquiesce, that these codicils do not in any material wise affect the provision made for appellant. We might say in passing that one provision of these codicils emphasizes the view, which, however, we understand counsel for appellant to concede, that the trustee was to deal separately and not jointly with the proceeds of the trust estate, that is, that it was to pay to appellant and to said Lewis Vaughan Clark each a sum "such as the trustee may deem advisable for his or her support." The codicil referred to simply commutes the sum which may be paid from any source (including an income from

it does not depend upon the falling in of any prior estate for either life or years, nor is it a remainder. It takes effect in immediate possession, just as, in all respects and just as surely as, any other devise or bequest of an estate in trust, wherein the income alone is to be paid to the cestui que trust. Only the amount of the income and the duration of the right to enjoy it are doubtful, or subject to be either changed or defeated-short of appellant's death-by contingencies. The contingency of duration for life or less can be defeated only by appellant's own voluntary act; that of uncertainty of amount of the annual income depends upon the judg ment (semble, to be exercised annually) of the trustee as to the amount which will be required for the support of the appellant.

Even a casual reference to the question presented in the light of the statute shows clearly that there has been no method provided by the Legislature fixing the time or manner of the collection of an inheritance tax on this sort of income. Sections 310 and 314, R. S. 1909. The two sections last above cited contain all of the legislative methods

method of taxing this income can be found in these statutes anywhere, which even measurably fits the facts confronting us. Concerning the Collateral Inheritance Tax Statutes of the state of New York of 1885, from which state our own statutes were largely taken, and of which they are substantial rescripts (Laws New York 1887, chap. 713, p. 921 et seq.), in a case wherein the impossibility of enforcing the collection of the tax upon a similar so-called expectancy was urged as rendering the whole law unconstitutional, the New York Court of Appeals said:

error or not as to the mathematics of his argument, it is plain that such an order, when nowhere provided for by the statutes, is too inequitable and unjust to sanction, and that the rule which enjoins upon us the duty to enforce the intention of the Legislature (in collecting this tax, not in selecting those liable to pay it) is not so flexible as to embrace a case so flagrant as this. The law does not require us to leave the statute and go into the field of invention to find a way to tax this income.

The remedy lies with the Legislature. The statutes of 1887 of the state of New York, "The learned brief submitted by Mr. Hun, on from which our statutes on the subject largethe part of the appellants, points out many im-ly come, have been so many times re-written perfections in this act, and shows that there will be great embarrassment and difficulty in and amended since we adopted this ancient executing the act in the cases of contingent re- law upon the subject as seemingly to permit mainders and expectant estates, and in some oth-(since the case of Matter of McPherson, suer cases. The criticisms made by him upon the act are well worthy of the attention of the Leg-pra, was decided) the taxing of an income islature. But even if in one of the respects similar to the one under discussion. Likepointed out by him it should be found that the wise, is this also the case in many other act is inoperative and impracticable, yet on that jurisdictions. Cf. State ex rel. v. Probate account we see no reason for condemning the entire act. If it should be wholly inoperative Court, 112 Minn. 279, 128 N. W. 18; In re in cases of contingent and expectant estates and Crompton, 10 Pa. Co. Ct. R. 443; Chisholm in some other cases mentioned by him, yet it v. Shields, 67 Ohio St. 374, 66 N. E. 93; Peocan operate without difficulty or embarrassment in the great majority of cases coming within ple v. McCormick, 208 Ill. 437, 70 N. E. 350, its purview. A majority of persons having 64 L. R. A. 775; In re Babcock, 81 App. Div. property die intestate, and a majority of those 645, 81 N. Y. Supp. 1117; Billings v. People, disposing of property by will do it by simple 189 Ill. 472, 59 N. E. 798, 59 L. R. A. 807; bequests or devises, and the cases of contingent Howe v. Howe, 179 Mass. 546, 61 N. E. 225, and expectant estates are not very common. There is no reason, therefore, for condemning 55 L. R. A. 626; In re Sloane, 154 N. Y. 109, the whole act because possibly in some cases 47 N. E. 978. But the condition of our statit could not have operation according to the in- ute regarded, to hold the income here intent of the Legislature." Matter of McPherson, 104 N. Y. loc. cit. 324, 10 N. E. 690, 58 Am. volved as liable to this tax, would necessitate Rep. 502. so violent a construction of our statute as to amount to judicial legislation.

The judgment nisi provided for the ascertainment of the tax due each month, bottomed upon the sum which the trustee should in its discretion decide to pay appellant for her support for that month. For, so runs the memorandum filed below:

"Then it becomes known and certain and the amount of the tax is also then known and can be determined by the court, and is required by the law to be deducted and withheld and paid in 30 days by the trustee to the collector."

We have shown that no statutory method has been provided, or exists by which the situation here presented is in any sense met, so that the plan adopted below is the result of the most violent construction. Such violence of construction we do not deem warranted in order to enforce a statute operating in invitum, as this and other taxing statutes do.

It is manifest that such a method of ascertainment and payment of the amount of tax due would be expensive in fees and burdensome in the extreme. Learned counsel for appellant insist that the monthly outlay in probate court fees necessitated by the order nisi would be $4.45 upon a total monthly tax, as developed by past experience in this case, of $20.83. In short, the costs entailed in fees would amount to more than 20 per cent. of the monthly tax. Whether learned counsel is in

Having reached this conclusion, we need not concern ourselves with the other questions reserved for discussion, since this one disposes of the case.

It results that the case must be reversed and remanded, with directions to the court nisi to enter judgment for the appellant. Let this be done. All concur.

MAYES v. ADAIR COUNTY. (No. 16937.) (Supreme Court of Missouri, Division No. 1. March 30, 1917.)

1. ESTOPPEL 62(3)-ESTOPPEL IN PAIS.

That county paid larger portion of tax bills which were void could not, standing alone, estop tive balances, from urging that tax bills were the county, when afterwards sued upon respecinvalid, as the payee was not prejudiced by the

act.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 153.]

2. MUNICIPAL CORPORATIONS 340, 443 PUBLIC IMPROVEMENTS COMPETITIVE BIDDING.

The plans and specifications for paving, etc., of streets called for completion of work by November 15th, unless for good cause shown council extended time. The notice to bidders referred to these plans and specifications, and provided that bids would be received up to September 28th. Bids were received up to that time,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

but awarding of contract was postponed to September 30th. Before the bids were opened and contract made, the council extended time for execution. Held, that an assessment based on the work and the contract was void, in view of Rev. St. 1909, § 9411, requiring contracts for street improvements to be let to lowest and best bidder upon plans and specifications, etc.; there being no notice of the contract made which was different from that advertised.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 869, 1063.] 8. MUNICIPAL CORPORATIONS

340-PUBLIC IMPROVEMENTS-NOTICE FOR BIDS-CHANGE IN SPECIFICATIONS IN CONTRACT. Where the plans and specifications incorporated in notice for bids for contract to construct pavement, etc., provided that work should be completed by November "unless for good cause shown council extended time," council could insert in the contract a clause like the one quoted, but could not extend time for completion before contract was made and after publication of notice.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 869.]

4. APPEAL AND ERROR

854(2) - REVIEW CORRECT JUDGMENT ON WRONG THEORY, Where the judgment of the lower court is correct, it will be affirmed on appeal, although based on an erroneous theory.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410.]

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by A. S. Mayes against the County of Adair. Judgment for defendant, and plaintiff appeals. Affirmed.

Higbee & Mills and P. J. Reiger, all of Kirksville, for appellant. A. Doneghy and J. E. Rieger, both of Kirksville, for respond

ent.

GRAVES, J. This is an action in two counts upon two tax bills issued by the city of Kirksville. The suit is for a balance due upon each tax bill, the county having paid a part on each bill: On the first $1,647.61, leaving a balance due of $245.69; on the second $1,602.60, leaving a balance of $268.78. The case reaches this court by reason of the county of Adair being the defendant therein. Plaintiff's counsel thus state their case:

"This action is a suit on two special tax bills issued by the city of Kirksville, for grading, guttering, curbing, and paving the roadway of Washington street from the west line of Franklin street to the west line of Elson street, and also for grading, guttering, curbing, and paving the roadway of Elson street from the north line of Washington street to the north line of Harrison street. The petition is in two counts: One, on tax bill No. 19; one on tax bill No. 25. The defendant, county of Adair, owns one entire block of ground in the center of the business district of Kirksville, Mo., on which tract the Adair county courthouse is located. On the 29th day of July 1908, the city council of Kirksville deemed it necessary to improve the roadway of Elson and Washington streets, and passed a resolution in due form to that effect; no protest being filed, plans and specifications having been properly filed with the city clerk, the council passed an ordinance authorizing the work, and thereafter the city clerk, by direction of city council, advertised for bids for doing the

work. Three bids were received for doing the work and B. A. Powell being the lowest and best bidder was awarded the contract. The contractor executed a bond and contract, the same were filed with the city clerk, and the contract was completed and the work of improvement done according to the plans and specifications and ordinances of the city of Kirksville. Washington and Elson streets are each of the width of 75 feet, which accounts for the area of the intersection of the streets connecting with them. After the completion of the work, the city encost of the improvement among the lots and gineer computed the costs and apportioned the tracts of land abutting on the parts of Washington and Elson streets, that were improved by paving. Washington street runs east and west through the city of Kirksville, and Elson street runs north and south through said city. The tract of land on which the courthouse is situated, and owned by Adair county, lies north of Washington street and east of Elson street. The property owners of Washington street, abutting that part of said improvement, were charged with their proportionate share of cost of improving the intersection of Washington street and Elson street; and all the property owners on the west side of Elson street abutting on that part of said improvement were charged with and paid their proportionate part of the cost of improving said Elson street, including the costs of improving the intersection of Elson Adair, owning all the land north of the improved and Harrison streets. Defendant, county of part of Washington street and all the land east ed with its proportionate part of the said imof the improved part of Elson street, was chargprovement, according to law. The tax bills issued against the county of Adair were delivered to the contractor B. A. Powell, by him assigned, for value received, to Carl P. Werner, and by him assigned to plaintiff herein. Adair county paid part of the costs of the improvement, but Washington and Elson streets on tax bill No. refused to pay for one-half the intersection of 19, and for intersection of Elson and Harrison streets, on tax bill No. 25. This suit was brought to recover the balance due on said tax bills. Case tried in the circuit court of Adair county, Mo., and judgment rendered in favor of defendant, county of Adair. The case was tried before the court sitting as a jury and the court made its finding for defendant on the ground that the apportionment of the costs of paving the intersection of streets was erroneous, and that Adair county was liable for only onefourth of the cost of intersection, instead of onehalf, and the legality of the apportionment of the cost of paving the intersections is the only issue before the court."

Notwithstanding the fact that defendant had paid the greater portion of each tax bill, the answer herein raises many questions as to the validity of the tax bills. These can be properly noted in the course of the opinion.

[1] I. There is a suggestion of estoppel in pais as to the county, contained in the briefs, but no authority is cited. It is true that the county did pay the larger portion of each of these tax bills, but this fact, standing alone (as it does here), would not prevent the county from afterward urging that the tax bills were invalid, when sued upon the respective balances. The plaintiff was not misled to his injury by this act of the county. If I have an alleged outstanding note, and choose to pay the greater portion thereof, I would not be precluded, when sued upon the balance, from saying that my name thereto

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The contention is that the contract actually awarded and made was not in pursuance of the notice given, and for that reason bad. The question is novel, if the decided cases are looked to for parallel facts. We have here

was a forgery. Nor would my act of paying a portion of the note, said act standing alone, be such an act as would necessarily mislead the alleged payee to his injury, so as to invoke the doctrine of estoppel in pais. If, as a fact, the tax bills were void, the mere acta notice to bidders to the effect that they of payment, standing alone, could not mislead the payee to his injury, and the doctrine of estoppel in pais rests upon the idea that the party invoking the doctrine has been made to act, and to act to his own injury, by and through the act of the other party. The facts here do not call for the application of the rule. This contention is therefore ruled against appellant.

[2] II. The answer in the case raises a very important question. The plans and specifications for the work were prepared by the city engineer, and bears date July 28, 1908. These were filed July 29, 1908, with the city clerk, and such plans and specifications were made the basis for the bids to be made for the construction of the work. In these plans and specifications, which is the only thing upon which bidders could act, was the following clause:

"All work to be completed by 15th day of November, 1908, unless for good cause shown the council extends the time for the completion of said work."

must bid upon work to be completed by November 15th. We have here an ordinance extending the time for the execution of a contract, before any contract was made. We have further a recitation in that ordinance the following significant language:

"Now, therefore, on account of the condition of the weather, the near approach of winter, the scarcity of paving material, and the time refor the work, the council deems these reasons asquired to get said material on the ground ready signed good cause for the extension of the time for the construction and completion of the aforesons herein assigned, the council by this ordisaid improvements, and on account of the reanance does extend the time for the construction and completion of the aforesaid improvements to the 15th day of August, 1909."

Here is a recitation of facts which shows that a bid for work under the notice (work to be completed November 15th) meant more expensive work than if the notice had given more time and a more favorable season for the performance of the work. But we may leave this matter out of consideration, and get to a strict legal question. To thus extend the time before bids are opened, and before a contract is made, opens up a fruitful field for

The notice to bidders referred to these plans and specifications, and provided that bids would be received up to 8 p. m. of Sep-fraud. We are not called upon to say there tember 28, 1908. Bids were received up to that time, but the awarding of the contract was postponed to September 30th. On September 28th, and, as we gather it from the record, before the bids were opened, an ordinance was passed, by the city council, the first section of which reads:

was fraud in this case, although a spyglass might discern earmarks thereof. It would be easy to indicate to one of many bidders that there would be an extension made after bids were in and before the contract was made, and thus destroy actual competition on the contract to be made.

"The time having expired for filing bids for these considerations, and get to the strict But we may lay aside the grading, paving, guttering and curbing of Elson street from the north line of Washington legal status of this case. The notice for bids street to the north line of Harrison street, and called for a contract to do this work by NoWashington street from the west line of Frank- vember 15, 1908. No such contract was ever lin street to the west line of Elson street, and made. Franklin street from the center line of McPher- advertised in the notice. The contract made was not the one son street to a point in line with the north line In other words, of Jefferson street, and Franklin street from the there was no notice of the contract actually center line of Missouri street to a point in lien made and approved. No notice was given of with a point two and one-half feet south of the a contract to be made, calling for the complesouth rail of the track of the Quincy, Omaha tion of this work on August 15, 1909. The and Kansas City Railroad Company, and before any of the said bids are opened, and before notice given called for a contract to complete any contract for the aforesaid improvements are the work on November 15, 1908. The conlet and before the mayor and council knows tract made was void for want of notice. The to whom the contract for aforesaid improvement notice given referred to the specifications of will be awarded or before said mayor and council knows whether or not a contract will be the engineer on file with the city clerk. These awarded to any person for aforesaid improve- specifications required the completion of the ments, now, therefore, on account of the condi- work on November 15th. That a contract of tion of the weather, the near approach of win- this kind, to be valid, must be in pursuance ter, the scarcity of paving material, and the time required to get said material on the ground ready of the notice, is well settled law. The time for the work, the council deems these reasons when the work is to be done is as much a part assigned good cause for the extension of the of the contract as the materials to be used time for the construction and completion of the therein, in so far as a determination of the aforesaid improvements, and on account of the reasons herein assigned, the council by this ordi- question as to whether or not the contract nance does extend the time for the construction follows, and is in compliance with the notice, and completion of the aforesaid improvements is concerned. The law requires public notice to the 15th day of August, 1909." of contracts to be let. The contract made must be in accordance with the notice. In 20 Am. & Eng. Ency. of Law (2d Ed.) 1169 the general rule is thus stated:

The actual contract was awarded on September 30, 1908, but not entered into nor approved by the council until October 19, 1908.