Estate of William G. Street, Deceased, Anne Street Skipper, Executrix - Page 11

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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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