emption or a prior rate. By reference to the schedule of the probate court in the statement, it will be seen that the court followed this construction.

This result is in accord with the ruling in Corbin v. Baldwin, 92 Conn. 99, 101 Atl. 834, Ann. Cas. 1918E, 932. That case had to do with class C, but the language determining the amounts is the same. In that case the very point under discussion was involved. The court there imposed a tax of 8 per cent. upon the net estate passing to class C. This was assigned for error and was held erroneous. The matter was discussed by counsel, and the court, at the end of the opinion, ruled, though without discussion, and apparently by agreement of the parties, that the taxation should be 5 per cent. on $50,000 less the exemption of $500, that is, $49,500; 6 per cent. on the $250,000 less $50,000, that is $200,000; and so on. While this may not be absolutely binding because conceded by counsel, still it is highly persuasive as showing, when the point had to be settled, that it did not occur to the court or to any of the counsel that any other construction than that here adopted could reasonably be claimed.

Counsel for appellant insist that we adopt the construction requiring us to hold that the $25,000 is over and above the exemption of $3,000, and that the $50,000 is over and above the $25,000, and so on. The reasonably clear 'construction of the statute, as explained, is not consistent with this claim. As counsel for the appellee well suggests, if appellant's claim is sound, the lower limit of the second progressive amount should be $28,000 and not $25,000. The construction we adopt makes the entire language consistent with the theory stated at the outset, that the several progressive amounts are stated as based upon the entire estate passing. Counsel for the appellant apparently rely upon Matter of Jourdan Estate, 206 N. Y. 653, 99 N. E. 1109, decided on the adoption of a dissenting opinion in 151 App. Div. 8, 135 N. Y. Supp. 172, which involved a construction of the Laws of New York of 1910, c. 706, § 221. The pertinent language of that statute, after stating the exemption, is:

centum.

* * *

is

one hundred thousand dollars, twice the primary rates”—and so on for succeeding amounts.

Here the language, unlike our statute, is definite that the computation of the $25,000 does not begin until after the $5,000 exemption is taken out. "Twenty-five thousand dollars over and above the exemption" is the descriptive language. And the court applied this idea in construing the descriptions of the succeeding amounts subject to progressive rates. Whatever may be said of the reasoning of the Jourdan Case, there is sufficient difference between the New York statute and ours to render that decision of slight weight in construing our own.

[2] The second question is whether the successive amounts shall be determined with reference to the net estate going to class B as a whole, or with reference to the amounts going to the individual beneficiaries, respectively, designated as belonging to class B. The language of the statute leaves little unSection 6 (Gen. certainty upon this point. Stat. 1264) divides the beneficiaries into three classes, A, B, C, the basis of the division being nearness or remoteness of the relationship of the beneficiaries to the deceIn class A the statute describes the dent. estate as the "net estate," as "the amount passing to relations of this class." In class B the same language is used. In class C, as "the amount passing to beneficiaries of this class." Of course, the different relationships included in classes A and B are named, but they are named conjunctively, as taken together forming one class, not disjunctively. The amount passing to relations of this class is clearly the whole amount passing to all in the class collectively, and not the amount passing to each member of the class, and it is this whole amount that is subject to progressive taxation. Had the Legislature intended that each member's share in the net estate should be the basis on which to determine the progressive rates, it is difficult to see why it should not have used the disjunctive "or" in enumerating the relationships in each class, nor why, instead of saying "passing to relations of this class," it should not have said "passing to each relative of this class." In section 7 (Gen Stats. 1265), in referring to proportional exemptions to nonresident estates, the estate is referred to as passing to classes, and not to each member of the class. Section 8 (Gen. Stats. 1266) speaks of "gifts, devises, and bequests to the class." In section 9 as amended in 1917, now section 1267, Gen. Stats., and not changed in the point referred to, the court is directed how to ascertain the tax, and in the decree to state "the value

"If the amount so transferred over five thousand dollars [the exemption], the excess shall be taxable at the rate of one per The rates of taxation hereinbefore prescribed in this and the preceding section are hereby designated as 'primary rates.' Whenever any property, real or personal, or any beneficial interest therein which passes by any such transfer to or for the use of any person or corporation, shall exceed the amount of twenty-five thousand dollars over and above the exemptions herein before provided, the rate of the estate passing to each class of bene* the rate and amount of of taxation shall be as follows: Upon all amounts in excess of the said twenty-five thou- the estate passing to each such class," and to sand dollars and up to and including the sum of "determine the amount of such tax," refer

ficiaries

(107 A.)

ring to the tax on the amount of property | language which substantially leaves the statpassing to the class, and not to each member ute equally open to different interpretations, of the class. Finally, the act conclusively and that there is no such ambiguity in the settles this question in section 10, now sec- statute under construction. tion 1268, where it is said:

"Only one exemption as herein provided shall be allowed to each class, and each beneficiary or distributee shall pay such percentage of the tax on property passing to such class as his share is of such property."

The schedules prepared by the probate court and set out in the statement are in strict conformity to the requirements of sections 9 and 10 of the act, and are prepared on a correct interpretation of section 6 of the act.

[3] Counsel for the appellant invoke the doctrine that, in case of doubt in the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer. City of Rochester v. Fourteenth Ward Ass'n, 183 N. Y. 30, 75 N. E. 692.

The claim is further stated in the quotation from Knowlton v. Moore, 178 U. S. 77, 20 Sup. Ct. 747, 44 L. Ed. 984:

"Where a particular construction of a statute will occasion great inconvenience or produce inequality or injustice, that view is to be avoided if another and more reasonable interpretation is present in the statute."

The superior court is advised to render a judgment affirming the order and decree of the court of probate appealed from and dismissing the appeal.

In this opinion the other Judges concurred.

2. NEGLIGENCE ~~55
OVERHANGING CORNICE
CONTRACTOR'S LIABILITY.

NUISANCE PER SE
INDEPENDENT

A cornice, overhanging a sidewalk, which fell only after the wood had rotted and the tin and nails had rusted, was not a nuisance per se for the construction of which the contractor is liable to the beneficiary of one killed by the fall of the cornice.

3. PLEADING 8(17) PROXIMATE CAUSE -CONCLUSION.

Allegations in a complaint for negligence that each and every act, omission, and negligence stated was a proximate cause of the injury, are statements of legal conclusions which add nothing to the previous allegations of fact.

In the present case, the validity of our statute and of its progressive features is unquestioned, and there is no occasion for discussion on that point. We see no great inconvenience, inequality, or injustice in the interpretation given, and we hold that no other interpretation, particularly of the class feature, which is the most serious question raised by the reservation, "is present in the statute." That a succession tax, which is not strictly a tax but a death duty (Corbin v. Baldwin, 92 Conn. 103, 101 Atl. 834, Ann. Cas. 1918C, 932), may be graduated according to classes of takers and made progressive according to amounts going to the class, it is too well settled to admit of discussion or require citation, and we cannot perceive any injustice or hardship in prorating the tax on a class among the members of Action by Nelson Howard, as administrathat class according to the proportion pass- tor, against William H. Redden and George ing to each. If it is a hardship that the Gilbey. From a judgment in favor of desmall taker pays his percentage, while the fendant Gilbey after his demurrer to comtaker of a large amount pays no greater per-plaint was sustained and plaintiff refused to centage, such hardship is due to the act of the testator in giving much to one and little to another, and in no way is chargeable to the statute.

The mere fact that there may be differences of opinion so that a judicial determination has to be obtained, or that one construcion may lead to a heavier tax than another, is not enough. We think this doctrine applies only in case of a clear ambiguity in

Appeal from Superior Court, New London County; John E. Keeler and William M. Maltbie, Judges.

plead further, plaintiff appeals. No error.

Action to recover damages for death caused by a falling cornice, brought against the builder, Gilbey, and the owner, Redden, to the superior court for New London county, and tried to the court, Keeler, J., upon demurrer of Gilbey to the substituted complaint. The demurrer was sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendant

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

To this complaint the defendant Gilbey de- ments, the rusting and rotting took place,

(107 A.)

and rotting the cornice fell; and it further appears, and is so alleged, that defendant Redden failed and neglected to inspect the cornice to determine its condition, and failed and neglected to remove the cornice. Whether Gilbey in doing the work was acting as independent contractor or as the servant of Redden does not clearly appear. We assume that it is intended to hold Gilbey as a contractor. It is not alleged that Gilbey had anything whatever to do with the building after the construction of the cornice. The necessary inference of fact is that he did not. His is the ordinary case of a contractor or carpenter doing a job upon a building at the request of the owner, and thereafter having nothing to do with it. It is further to be presumed, from the acceptance and use necessarily implied from the other allegations of the complaint, that the cornice was constructed as the owner directed, or at least to his satisfaction. Whether the original contract was well done or not, it distinctly appears, and this is the controlling factor in the case, that the fall of the cornice was not due to the condition the contractor left it in, but to the neglect of the owner Redden to inspect and guard against the result of rusting and rotting that inevitably takes place in every structure in which nails, tin, and wood are used. The structure stayed up so long as the materials did not rust and rot out.

The reasoning of Miner v. McNamara, 81 Conn. 690, 72 Atl. 138, 21 L. R. A. (N. S.) 477, is conclusive of the present case. In that case the Hubbell Company was alleged to have negligently constructed a warehouse. It was delivered to the owner, who knew the negligent construction and that the building was unsafe. The owner leased to the plaintiff without disclosing the condition of the warehouse, and the building collapsed from its inherent weakness about a month after plaintiff took possession. This presents a much stronger case for the plaintiff than the present, for the collapse was due to conditions existing when the Hubbell Company | turned over the building to the owner, and was not due to a supervening natural deterioration negligently allowed by the owner to proceed to the point of collapse, when reasonable inspection and care by the owner would have prevented it. Yet this court held that the Hubbell Company was not liable on the ground that its negligence was not the proximate cause of the collapse, but that the failure of the owner to notify the lessee of the defective condition was negligence and the proximate cause of the collapse. The court said:

[quence, unbroken by any new and intervening cause, produces that event, and without which that event would not have occurred.' Smith v. Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888 [17 L. R. A. (N. S.) 707]. The last conscious agent in producing the injury is the party liable for it. 1 Beven on Neg. in Law (3d Ed.) 53. The law does not search for the more remote agencies by which the injury was brought about or made possible."

It appears from the present complaint that the fall of the cornice was due to the action of rust and rot, and it is in terms alleged:

"The defendant Redden negligently and carelessly failed and neglected to inspect the cornice to determine its condition, and negligently and carelessly failed and omitted to remove said cornice from said building."

A contractor or workman is surely not the insurer of the everlastingness of the materials of a cornice built by him. The owner, or occupier, as the case may be, is under obligation to give such inspection and make such repairs as will at least preserve the structure from the dangerous effects of natural causes, wind, rain, dampness, which no foresight of construction can guard against.

[2] But the plaintiff contends that this is a case of a nuisance per se, and therefore the contractor is liable in any event. It is unnecessary to discuss the law in such cases, for the reason that the allegations do not show a nuisance per se, and do show a supervening proximate cause. There is, to be sure, an allegation that the cornice was so constructed as to be a constant menace as liable to fall by its own weight due to insecure fastening. Whether this was so or not, the fall which in fact occurred was of a structure quite different from that left by the builder. So long as it remained as left by him, it did not fall. The fall was due to rust and rot occurring from natural causes and which the complaint says should have been guarded against by the owner by inspection and repair or removal, and which he neglected. The most alleged against Gilbey is negligence, and then it is shown that the subsequent negligence of the owner brought about the fall. There is no similarity between the facts of this case and of those cited by the plaintiff. House v. Metcalf, 27 Conn. 631, was the case of an overshot water wheel built near the road, uninclosed and uncovered and calculated by its very nature to frighten horses. The danger was constant from the time the wheel was constructed, and it was that identical danger which caused the accident.

The bridge cases, of which O'Brien v. American Bridge Co., 110 Minn. 364, 125 N. "Whether this defendant (the Hubbell Build- W. 1012, 32 L. R. A. (N. S.) 980, 136 Am. ing Company) is liable for the plaintiff's injury depends upon whether its negligent or unlawful St. Rep. 503, may be taken as an illustration, act was the proximate cause of that injury. are cases where the very method of construc"That only is a proximate cause of an event, tion made the bridge liable to collapse at juridically considered, which, in a natural se- any time and it did collapse because of the

defects in its construction alone. The very its bridges and highways in good order; but danger left by the contractor, without any between the contractor and the traveler interintervening cause, materialized in the col-vened the city, an independent, responsible lapse. We may apply to the claim of nui- agent, breaking the causal connection.'" sance per se the words of Hobson, C. J., in Simons v. Gregory, 120 Ky. 116, 85 S. W.