(after stating the facts as above). No question is made, as to the propriety of the amount of tax paid if the interest was subject thereto; the sole question presented for consideration being whether the right or interest passing to the legatees, and upon which the tax was assessed, was of a character to subject it to the burden imposed by the act. That question, to employ the language of counsel for the government, is:

*163 Upon this question he states his position thus:

And further:

And that:

This fairly presents the attitude of the government in the controversy, and is, perhaps, as strong a statement of the case as the facts would warrant. Was such an interest a proper subject of taxation under the act?

This inquiry is to be answered from a consideration of the provisions of the act in the light afforded by certain adjudicated cases wherein these provisions have been under review. Primarily in this connection it is necessary to keep in view a cardinal principle, to be applied generally to the interpretation of legislation whereby the government seeks to impose a duty or burden upon the property or rights of the citizen in the nature of taxation, and more especially applicable to si atutes such as this, seeking to impose a burden o f a special or unusual character, and that is that, in all cases of doubt or ambiguity arising on the terms of such a statute, every intendment is to he indulged against the taxing power. This principle has been aptly stated in two cases involving the application of the statute under consideration : Eidman v. Martinez, 184 U. S. 578, 588 , 22 Sup. Ct. 515, 46 L. Ed. 697 ; Disston v. McClain, 147 Fed. 114, 116 , 77 C. C. A. 340 .

The feature of the act more immediately involved is found in section 29, which, so far as material to be stated, is as follows:

This section was repealed, to take effect July 1, 1902 (Act April 12, 1902, c. 500, § 7, 32 Stat. p. 97 [U. S. Comp. St. Supp. 1907, p. 649]), *164 but all taxes or duties imposed thereby and the amendment thereto, prior to the taking effect of the repeal, were reserved from the operation thereof. Subsequently, on June 27, 1902 (Act June 27, 1902, c. 1160, § 3, 32 Stat. 406 [U. S. Comp. St. Supp. 1907, p. 652]), Congress passed an act, commonly known as the “Refunding Act,” which authorized and directed the refunding by the Secretary of the Treasury, upon proper application, of all such taxes “as may have been collected on contingent beneficial interests which shall not have become vested prior to July first, nineteen hundred and two,” and provided that no tax should thereafter be assessed or imposed, under said war revenue act, “upon or in respect to any contingent beneficial interest which shall not become absolutely vested in possession or enjoyment prior to said July first, nineteen hundred and two/’ This was the state of the legislation at the time the present action arose.

But three cases have been cited as bearing in any wise directly upon the particular question involved. The first or leading case is that of Vanderbilt v. Eidman, 196 U. S. 480 , 25 Sup. Ct. 331, 49 L. Ed. 563 , where the act and its amendments, as affected by the provisions of the refunding act, were under consideration by the Supreme Court, and its general scope and purpose and the rules of interpretation to be applied in ascertaining its limitations were very thoroughly gone into. In that case the testator gave the residue of his estate to his executors, to hold in .trust for the support, maintenance, and education of his son, to accumulate the surplus and pay such accumulation to the son ai the age of 21, and thereafter to pay him the net income of the whole estate until he should arrive at the age of 30 years, when he was to be put in possession of one-half the corpus, and the net income from the remainder to be paid him thereafter until reaching the age of 35 years, when he was to receive the remaining half of the estate; and the question arose as to the power to tax under the act the rights or interests of the son under the residuary clause of the devise. It was there held that, for the purposes of the duty or tax imposed by the act on legacies or distributive shares passing by death,' such rights were intended to be' placed in the same category as to the limitation of possession and enjoyment as the second class of interests referred to in the act — that is, property or interests therein transferred by deed, gift, etc., to take effect after death — and that the intent of the statute was, as to both classes, to tax only interests which were actually vested in possession or enjoyment of the beneficiary, and not an interest the title to which had merely vested in a technical sense, with the possession or enjoyment remaining contingent. In that connection, after a careful review of the provisions of section 29 of the act, it is said:

It is further said, in discussing the effect of the refunding act;

This case was followed by that of Herold v. Shanley, 146 Fed. 20 , 76 C. C. A. 478 , decided by the Circuit Court of Appeals of the Third Circuit. In that case the question presented was essentially the same as in Vanderbilt v. Eidman, and the decision, being rested upon the authority of that case, does not call for further comment.

It will be observed that in neither of these two cases was the precise question presented in the case at bar involved; the only question being, as above suggested, the right to tax the residuary interest passing to the legatees. The cases are valuable, however, as furnishing an authoritative declaration of the scope and purpose of the act and the rules to be observed in its application.

The case of Disston v. McClain, above referred to, is more nearly analogous to the present, if, indeed, it may not be said to he exactly on all fours. In that case the will of the testator gave the residue of his estate to trustees, to keep the same invested, and—

It was sought, as in this case, to tax this legacy or income as a life estate, and for that purpose its value was attempted to be ascertained by the employment of life or annuity tables. The opinion is written by Judge Gray, and is very full and exhaustive. After adverting to the rule of strict construction above referred to, it is said, with reference to the terms of the act as bearing upon the interest of the legatee:

And, after an elaborate discussion of - the cáse of Vanderbilt v. Eidman and the principles of construction there announced, it is said:

Applying the principles announced in these cases to the facts here presented, it would seem to be obvious that the interest sought to be taxed under the will of Follis did not fall within the terms of the statute. Confessedly the only present right passing to these beneficiaries was that of receiving the income from the corpus of the estate in the hands of the trustees. Such an interest does not, for the reasons aptly stated by Judge Gray in Disston v. McClain, fall within the definition of either a legacy or a distributive share, in the sense in which those terms are employed in the act. It matters not that this right to the income may, as contended by counsel for the government, constitute an equitable interest in the trust fund, the present beneficial enjoyment of which is in the beneficiaries. It may, indeed, be conceded that this is a correct characterization of the estate conferred. But the question is-: Does the act undertake to impose any burden upon such an interest? Very clearly it does not in express terms; and under the doctrine of strict construction, heretofore referred to, the application of those terms is not to be extended by implication beyond their plain, usual, and ordinary sense. As suggested by Judge Gray. *167 llie act says nothing about taxing the mere right to an income before that income is actually received; and, had such been the intention, it would have been a very easy matter to express the purpose. Instead, Congress has contented itself, in designating the estates that shall be burdened with the tax, by employing terms having general and well-understood significations, and by those terms must its purpose be limited.

Moreover, as held in Vanderbilt v. Eidman, the purpose of the act was to subject to taxation only beneficial interests, which by reason of being absolutely vested in possession or enjoyment have a value capable of being definitely ascertained — “actual value” as expressed in section 29, or “clear value” as expressed in section 30. The estate or interest here sought to be taxed was very clearly not of that character. While the right to receive the income was vested, it was a right the enjoyment of which, as with the legatee in Disston v. McClain, was contingent upon the beneficiaries living to receive it; and, furthermore, as in that case, this income wras to be derived from the entire residue of the estate of the testator, real and personal alike. It was necessary for the collector, therefore, under the limitations of the act, which taxes personal property alone, in order to reach his basis of value for the assessment, to first segregate the real from the personal property, and then resort, not only to the use of life or mortality tables, but to employ an arbitrarily assumed rate of interest in making the computation. We are entirely satisfied that, whether the employment of mortality or life tables tinder any circumstances is contemplated by the act, the mode resorted to in this case was not such as to produce the “actual” or “clear” value therein specified. In using those terms Congress must be deemed to have meant something more definite and certain than would be attached to the bald term “value,” without the qualifying adjectives. A thing may have value in a general sense, although that value may not be susceptible of ready or definite ascertainment. It may depend upon some uncertainty or contingency. So that, when Congress employed the expressions “actual value” and “clear value,” it very evidently intended to convey the idea of definite or certain value — something in no sense speculative. Here it is at once apparent that the result reached as a basis for the tax through the method adopted was at most an approximation or merely speculative; and it could be nothing else. Life or annuity tables are never employed to ascertain definite or actual results, but only as guides to a reasonable approximation. Vicksburg, etc., R. R. Co. v. Putnam, 118 U. S. 545 , 7 Sup. Ct. 1, 30 L. Ed. 257 , and cases there cited.

We have not overlooked in this connection the stipulation in the record on the subject of value; but we do not read that stipulation as meaning anything more than that the result reached was the admitted value of the interests as that value was shown by the method of computation adopted — not that the employment of such a method was authorized by the act. If it was intended by the stipulation to convey the latter idea, it must be disregarded, since the .parties can *168 not be permitted to bind the court as to the proper construction of the statute.

Without pursuing the analogies further, we are satisfied that in no essential particular are the rights of the legatees involved in this case to be distinguished in their legal aspects from those involved in Disston v. McClain, and that, in accord with the conclusion reached in that case, it must be held that the only interest these legatees received under the will of the testator which could properly have been subjected to taxation under the act in question was the amount of income actually received and enjoyed prior to the date when the repeal of the act took effect; and, as that sum as to no one of them reached the amount of $10,000, there was nothing to which the tax could attach.

The contention of the government that the right to tax such an interest was implicitly upheld by the Supreme Court in Vanderbilt v. Eidman is very fully met and refuted in Disston v. McClain, and need not be further noticed.

These considerations are conclusive of the propriety of the judgment of the Circuit Court, and it is accordingly affirmed. .