262 Opinion of the Court. can do so legally only if it is located in a State in which state banks are so authorized. In some States national banks had, prior to the 1930 amendment, frequently pledged assets to secure public deposits of the State or of a political subdivision thereof; comptrollers of the currency knew that this was being done; and they assumed that the banks had the power so to do. But the assumption was erroneous. The contention that such power is generally necessary in the business of deposit banking has not been sustained. Second. Banks organized under the laws of Illinois do not appear to possess the power of pledging assets to secure the deposit of public moneys of a political subdivision of the State. Illinois corporations have only such powers as are conferred by statute either expressly or by implication; and only those powers are conferred by implication which are reasonably necessary to carry out the powers expressly granted, People v. Chicago Gas Trust Co., 130 Ill. 268; 22 N.E. 798; Calumet Dock Co. v. Conkling, 273 Ill. 318; 112 N.E. 982. No Illinois statute confers in express terms upon banks organized under its laws either the general power to pledge assets to secure a deposit; or the general power to pledge assets to secure public deposits. A statute confers in terms the power to pledge assets to secure deposits of the State but there is none which so confers the power to pledge assets to secure public deposits of a political subdivision of the State. No 3 In the Banking Act of 1919, Cahill's 1931 Hl. Rev. Stats., c. 16a, Par. 1, which, reënacting the law of 1887, provides for the organization of banks "for the purpose of . . . deposit" there is complete silence on this subject. The only references in any Illinois statute concerning the pledge of assets to secure a deposit are the following: (a) Section 10 of the State Depositary Act of 1919 (Cahill's 1931 Ill. Rev. Stat., c. 130, Par. 29) provides: "No moneys in the State Treasury shall be deposited in any bank approved as a depositary Opinion of the Court. 291 U.S. reported decision rendered by any Illinois court since the enactment of the General Banking Law of 1887 holds that the alleged power exists as one incidental to the business of deposit banking. Nor is there any evidence that in Illinois such power is necessary in the conduct of the business of deposit banking. Ward v. Johnson, 95 Ill. 215, 217, decided in 1880, is relied upon as authority for the proposition that Illinois banks have power to pledge assets to secure deposits. That case arose under the charter of "The Merchants, Farmers and Mechanics Savings Bank," which was granted long before the General Banking Act of 1887. The pledge involved therein was given to secure a transaction which appears to have been a loan as distinguished from a deposit. The transaction dealt with private funds. The statement was there made that banks have authority to pledge assets to secure deposits. If that statement expresses the law of the State, Illinois banks have had for more than half a century power to pledge their assets to secure private deposits as well as deposits of public moneys of its political subdivisions. But the case has never been referred to since on this point in any reported opinion of any Illinois court. During that period, many state under the terms of this Act until such bank shall have deposited security with the State Treasurer equal in market value to the amount of moneys deposited. (b) Section 11 of the Banking Act as amended in 1929 (Cahill's 1931 Ill. Rev. Stat., c. 16a, par. 11) provides that a receiver of a closed bank: "Shall deposit daily all moneys collected by him in any state or national bank selected by the auditor, who shall require of such depository satisfactory securities or satisfactory surety bond for the safe keeping and prompt payment of the money so deposited." *Courts of other States have referred to it as authority for the proposition that banks have the power to pledge assets to secure deposits. See Williams v. Earhart, 34 Ariz. 565; 273 Pac. 728; First 262 Opinion of the Court. banks have failed; and there must have been much litigation arising therefrom; but no exertion of the alleged power on the part of any state bank has been shown. An authoritative determination of the question whether Illinois banks have power to pledge assets to secure the deposit of public moneys of a political subdivision of the State can be given only by its highest court. The District Court discussed, but did not decide, that question. Its decision dismissing the bill was rested on the ground that the National Bank Act as enacted in 1864 had conferred the general power to pledge assets to secure deposits; and that the power so granted had not been lessened by the later legislation. The majority of the Circuit Court of Appeals being of opinion that national banks lacked the power to pledge assets to secure deposits (except so far as conferred by the 1930 amendment) necessarily passed upon the applicable Illinois law. After careful consideration, it reached the conclusion that Illinois had not conferred upon its banks the power to pledge assets to secure deposits of political subdivisions of the State. Its reasons are set forth fully and persuasively; and the decisions of the courts of other States Amer. Bank & T. Co. v. Palm Beach, 96 Fla. 247; 117 So. 900; U.S. Fidelity Co. v. Bassfield, 148 Miss. 109; 114 So. 26; Melaven v. Hunker, 35 N.M. 408; 299 Pac. 1075; Page Trust Co. v. Rose, 192 N.C. 673; 135 S.E. 795; Cameron v. Christy, 286 Pa. St. 405; 133 Atl. 551; Grigsby v. People's Bank, 158 Tenn. 182; 11 S.W. (2d) 673; Pixton v. Perry, 72 Utah 129; 269 Pac. 144. "The Auditor of Public Accounts in his annual statement on the condition of state banks (p. 42) gives (Dec. 31, 1932) 1,866 as the aggregate number of the banks existing on Dec. 6, 1888 and organized since. Of these 26 had charters granted prior to Dec. 6, 1888; and 1,840 were organized thereafter under the general law. The number of banks in operation Dec. 31, 1932 was 742. The number then in receivership was 444. Between Dec. 31, 1932 and March 1, 1933, 32 more state banks failed. Federal Reserve Bulletin, 1933, pp. 105, 201. Statement of the Case. 291 U.S. involving similar questions are fully reviewed. We cannot say that the Circuit Court erred in the conclusion reached. Third. Since the Herrin bank was without power to make the pledge of bonds here in question, its receiver is entitled to recover them unconditionally in order that they may be administered for the benefit of the general creditors of the bank. See Texas & Pacific Ry. Co. v. Pottorff, ante, p. 245. Affirmed. UNITED STATES v. PROVIDENT TRUST CO., ADMINISTRATOR. CERTIORARI TO THE COURT OF CLAIMS. No. 224. Argued January 11, 12, 1934.—Decided February 5, 1934. 1. In determining the value of a devise to charities of a remainder contingent upon the death without issue of a female life tenant in order that such value may be deducted from gross income in computing the federal estate tax, it is permissible to prove that before the death of the testator the life tenant became incapable of having issue, as the result of a surgical operation by which her procreative organs were removed. P. 281. 2. The ancient rule that a woman is conclusively presumed to be capable of bearing children as long as she lives, was, like other irrebuttable presumptions, a rule of expediency or policy, based upon the belief that to permit proof of the facts would result in injuries of greater consequence than the predominance of truth over error in the cases to which it applied. P. 281. 3. Applicability of this presumption remains a proper subject of judicial inquiry in the light of modern knowledge and experience. Pp. 282, 285. 4. Application of a conclusive presumption of possibility of issue in the present case would be subversive of the policy of the estate tax statute to encourage bequests to charitable organizations. P. 286. 77 Ct. Cls. 37; 2 F.Supp. 472, affirmed. CERTIORARI, 290 U.S. 614, to review a judgment allowing a claim for overpayment of federal estate tax. 272 Argument for the United States. Solicitor General Biggs, with whom Assistant Attorney General Wideman and Mr. Paul A. Sweeney were on the brief, for the United States. The amount subject to tax is to be ascertained as of the date of the decedent's death. Ithaca Trust Co. v. United States, 279 U.S. 151. No deduction will be allowed for a charitable bequest dependent upon a condition unfulfilled at that date. Humes v. United States, 276 U.S. 487; Regulations 37, Art. 56. By the overwhelming weight of authority in the United States, evidence is not admissible to show that a woman, after reaching adult age, is incapable of bearing children. Whether the courts use the words "conclusive presumption of law," "presumption of law," or some other expression, the result is the same, the rule being one of substantive law rather than one governing the burden of proof or the duty of going forward with evidence. The following cases involved the rule against perpetuities, holding that remoteness could not be avoided by allegation, agreement or proof that a woman was, by reason of age, incapable of bearing children: White v. Allen, 76 Conn. 185; Taylor v. Crosson, 11 Del. Ch. 145; Reasoner v. Herman, 191 Ind. 642; Beall v. Wilson, 146 Ky. 646; Brown v. Columbia Finance & Trust Co., 123 Ky. 775; Tyler v. Fidelity & Columbia Trust Co., 158 Ky. 280; U. S. Fidelity & G. Co. v. Douglas' Trustee, 134 Ky. 374; Lovering v. Lovering, 129 Mass. 97; Gettins v. Grand Rapids Trust Co., 249 Mich. 238; Rozell v. Rozell, 217 Mich. 324; Loud v. St. Louis Union Trust Co., 298 Mo. 148; Graves v. Graves, 94 N.J.Eq. 268; Stout v. Stout, 44 N.J.Eq. 479. The following involved determination of title and the right to distribution or partition under wills and deeds. Presumption in favor of child-bearing capacity held conclusive: Bowen v. Frank, 179 Ark. 1004; Williams v. Frierson, 150 Ga. 797; Dustin v. Brown, 297 Ill. 46305-34--18 |