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the question in final fashion, in favor of Anne Street Skipper
and her father's estate. It is the law of the case on this
issue. The principle is recognized in Texas: where a
determination has already been made on a prior appeal to a court
of last resort, it will govern the case throughout all its
subsequent stages. Transport Ins. Co. v. Employees Cas. Co., 470
S.W.2d 757 (Tex. App. 1971, writ refd. n.r.e.). The principle is
equally applicable in Federal courts. White v. Higgins, 116 F.2d
312, 317 (1st Cir. 1940).
So much for the matter of ownership of the property under
State law. We turn now to the Federal estate tax aspects of the
case. The estate tax is not a tax on property but rather is an
excise tax, levied on the right to transmit property at death.
The amount to be taxed is valued by the property actually
transferred, as opposed to that owned by the decedent before
death, or the interest held by the legatee after death. New York
Trust Co. v. Eisner, 256 U.S. 345 (1921); Knowlton v. Moore, 178
U.S. 41 (1900); Estate of Bright v. United States, 658 F.2d 999
(5th Cir. 1981) (a Texas case). As the Court of Appeals pointed
out in Walter v. United States, 341 F.2d 182, 185 (6th Cir.
1965), the tax is imposed on the right to transfer property by
the decedent, and is measured by what is passed rather than by
what is received. This adds significance to the provisions of
section 2042(1), which provides that for Federal estate tax
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