The challenge of appealing defendants to the correctness of the judgment below is directed in the main to the refusal of the court to grant their motions, aptly made, for judgment as in case of nonsuit. C. S., 567. Decision in this respect is dependent upon the basic question as to whether appealing defendants are bound by the decision of the Board of Tax Appeals on 27 March, 1942, in the proceeding upon petition of plaintiff in accordance with redetermination of value of property transferred in the year 1936 by William Nebel to plaintiff and to defendants Arthur Nebel and Marie Nebel upon which the gift tax liability was fixed at $6,334.96, instead of $20,111.82, the amount specified in the notice of 14 March, 1931, given by Commissioner of Internal Revenue to plaintiff and to said defendants.
As basis for consideration and clear understanding of this question, it is appropriate to refer to the Gift Tax Act of 1932, Act of Congress 6 June, 1932, Chapter 209, 47 Stat. 245, as amended 10 May, 1934, Chapter 277, in effect in 1936 at the time it is alleged that William Nebel made the gifts in question, in so far as same is pertinent here. The Act imposes a tax upon the transfer of property by gift by any individual during any calendar year beginning with the year 1932. Section 501. If the gift be in property, the value of it at the date of the gift shall be considered the amount of the gift. Section 506. Any individual who within any such year makes any transfer of property by gift shall make a return under oath as prescribed on or before 15 March following the close of the year. Section 507. The tax imposed shall be a lien upon all gifts so made for ten years from the time same are made, and if not paid when due (that is, on or before 15 March following the close of the calendar year, Section 509), the donee of the gift shall be personally liable for such tax to the extent of the value of *683such gift. Section 510. The amount of the tax shall be assessed within three years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of three years after the return was filed. Section 517. However, as soon as practicable after the return is filed the Commissioner shall examine it and shall determine the correct amount of the tax. Section 511. If the Commission determines that there is a deficiency in respect of the tax imposed in the Act, that is, the amount by which the tax imposed by the Act exceeds the amount shown as the tax by the donor upon his return, Section 512, the Commissioner is authorized to send a notice of such deficiency to the donor by registered mail, and within 90 days (increased from 60 to 90 days by amendment 10 May,. 1934, Chapter 277, Section 501 — 48 Stat. 755) after such notice is mailed, the donor may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. No assessment of a deficiency in respect of the tax imposed by the Act and no distraint or proceeding in court for its collection shall be made, begun or prosecuted until such notice has been mailed to the donor, nor until the expiration of such 90-day period (amendment 1934, supra), nor, if a petition has been filed with the Board, until the decision of the Board has become final. Section 513 as amended in 1934, supra. If the donor files a petition with the Board, the entire amount redetermined as a deficiency by the decision of the Board .which shall become final shall be assessed and shall be paid upon notice and demand from the Collector. Section 513 (b). And as to transferred assets, the Gift Tax Act provides: That the amount of the liability, at law or in equity, of a transferee or donee of property of donor, in respect of the tax, interest and additions, imposed by the Act, shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in the tax imposed by the Act. But the period of limitation for assessment of any such liability of a transferee or donee shall be within one year after the expiration of the three year period for assessment against the donor. Section 526 (a) and (b).
In substantial conformity, these provisions have been brought forward and are embodied in the Internal Revenue Code — Title 26, Chapter 4, Sections 1000-31.
To summarize, the gift tax is assessed upon the aggregate value of the gifts made by the donor within the calendar year, and is the liability of the donor. But if the tax be not paid when due, the donee becomes liable for the whole amount of the tax to the full extent of the value of the gifts received. And if there be more than one donee, the liability for the whole tax is separate, and the Commissioner of Internal Revenue may proceed against any' one or all of the donees as he may elect to do. *684Tbe Supreme Court of tbe United States bas so beld in a case involving similar facts. Phillips v. Commr. of Internal Revenue, 283 U. S., 588, 75 L. Ed., 1289.
There a corporation bad distributed all of its assets among its stockholders, and then dissolved. Thereafter tbe Commissioner of Internal Revenue made a deficiency assessment against tbe corporation for income and profits tax, a part of which was not paid. Thereupon, tbe Commissioner, acting under statute similar to provisions of Section 513 of Gift Tax Act of 1932, sent notice that be proposed to assess against, and collect from, Phillips tbe entire remaining amount of tbe deficiencies. No notice of such deficiencies was sent to any other transferee, and no suit or proceeding was instituted against them. Upon petition by Executors of Phillips for a redetermination, tbe Board of Tax Appeals beld that tbe estate was liable for tbe full amount of such deficiencies. Tbe order of tbe Board was affirmed by tbe U. S. Circuit Court of Appeals and by tbe U. S. Supreme Court. Justice Brandéis, writing for tbe Supreme Court, disposed of tbe question of separate liability in this manner: “One who receives corporate assets upon dissolution is severally liable, to tbe extent of assets received, for tbe full payment of taxes of tbe corporation; and other stockholders and transferees need not be joined. Non-joinder cannot affect or diminish tbe several liability of tbe stockholder or transferee sued . . . Tbe individual several liability of Phillips may be fully enforced by tbe United States in tbe present proceeding. Whatever tbe petitioners’ rights to contribution may be against other stockholders who have also received shares of tbe distributed assets, tbe Government is mot required, in collecting its revenue, to marshal tbe assets of a dissolved corporation so as to adjust tbe rights of tbe various stockholders.”
Therefore, applying tbe above principle in tbe light of tbe provisions of Section 513 (b) of tbe Act to tbe case in band, tbe decision of tbe Board of Tax Appeals, when it became final, fixed tbe entire gift tax liability of William Nebel for all gifts made in tbe year 1936 to plaintiff and to appealing defendants, and tbe payment of it by plaintiff constituted a complete discharge of such tax, and freed appealing defendants of liability, if any, to tbe Government on account of tbe property received by them.
In consequence plaintiff seeks equitable contribution. Is she entitled to it? On tbe facts on this record, we think she is. “Tbe principle of contribution is equality in bearing a common burden. Tbe general rule is that one who is compelled to pay or satisfy tbe whole or to bear more than bis just share of a common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against tbe others to obtain from them pay*685ment of their respective shares. In other words, when any burden ought, from the relationship of the parties or in respect of property held by them, to be equally borne and each party is in aequali jure, contribution is due if one has been compelled to pay more than his share. The doctrine is founded not upon contract, but upon principles of equity.” 13 Am. Jur., sec. 3, page 6. See also Moore v. Moore, 11 N. C., 358, 15 Am. Dec., 523; Bunker v. Llewellyn, 221 N. C., 1, 18 S. E. (2d), 717. The principle here stated is differentiated from that applied in Godfrey v. Power Co., ante, 641, where the statutory right of contribution was invoked, rather than equitable contribution as here.
Defendants Arthur Nebel and Marie Nebel knew that in accordance with the notice from the Commissioner there had been determined for assessment against each of them as a transferee of property from William Nebel gift tax liability in the amount of $20,111.82 — the liability of Marie Nebel being limited to the value of the property received by her. Each of them had petitioned the Board of Tax Appeals for a redetermi-nation of the deficiency, and proceedings were pending before that Board. A time had been set and a place named for hearings thereon. In the order of the calendar their proceedings would have been called before that -of the plaintiff. They had been informed that an adjustment of the values had been worked out by which the Bureau of Internal Eeve-nue had agreed with plaintiff upon a redetermination of the deficiency upon which decision of the Board of Tax Appeals would rest. They were advised as to the terms of such redetermination and were asked to come in and share their part of the burden. They said it was not their burden. Yet, they had been notified by the Clerk of the Board that in accordance with the Eules of Practice of the Board their failure to appear at the time and place set for the hearing would be taken as cause for dismissal of each of their proceedings, and that in all other respects they would be expected to be familiar with such rules. They were thereby specifically charged with knowledge of the rule that in cases where a petition for a redetermination of a deficiency had been filed, decision of the Board dismissing the proceeding “shall be considered as its decision that the deficiency is the amount determined by the Commissioner.” Internal Eevenue Code Title 26, Section 1111. In like manner they were charged with knowledge of provisions of Section 513 (b) of the Grift Tax Act that “no part of the amount determined as a deficiency by the Commissioner but disallowed as such by the decision of the Board, which has become final, shall be assessed or be collected by distraint or by proceeding in court with or without assessment.” In other words, they had knowledge, constructively, at least, that the decision of the Board upon the proposed redetermination of liability would fix the whole amount of the gift tax. They knew that in such event they *686would be relieved of expense of further litigation. In tbe light of this knowledge, and even though to plaintiff they denied liability, they failed to appear at the time and place named when they had the opportunity to show effectively lack of liability, and by their silence permitted the decision of the Board to be entered as against the plaintiff on 27 March, 1942, and stood by to see plaintiff pay the whole tax — thereby exonerating them of liability to the Government. Under such circumstances they have by their conduct fixed the common liability, and equity will require them to stand to it. “He who is silent when it is his duty to speak will not be permitted by the law to speak when such silence has made it his duty thereafter to remain speechless.” Stacy, C. J., in Sugg v. Credit Corp., 196 N. C., 97, 144 S. E., 554.
Appealing defendants contend, however, that they are not bound by the decision of the Board of Tax Appeals on 27 March, 1942; that in so far as they are concerned there has been no determination of a common liability; that the payment of the tax by plaintiff was voluntary; that they have the right to set up in this action all defenses they might have had in 'the original proceeding to which they were parties before the Board of Tax Appeals. And they rely upon the case of Phillips v. Parmley, 302 U. S., 233, 82 L. Ed., 221, in which the stockholder who had to pay the tax deficiencies to which the case of Phillips v. Commr. of Internal Revenue, supra, related, sues other stockholders for equitable contribution. In that case the Court held that “The right of a stockholder transferee to contribution arises under the general law and does not differ from that of any other person who has paid more than his fair share of a common burden. The right to sue for contribution does not depend upon a prior determination that the defendants are liable. 'Whether they are liable is the matter to be decided in the suit. To recover, a plaintiff must prove both that there was a common burden of debt and that he has, as between himself and the defendants, paid more than his fair share of the common obligations. Every defendant may, of course, set up any defense personal to him.” This holding must be read in the light of the facts of the case. There the defendants had had no notice of the tax assessment which the Government had made and prosecuted against the plaintiffs alone, and defendants had not had an opportunity to assert any defenses they may have had. Not so here, the defendants had the opportunity at the only time it would have been effective, and they let it pass.
Due consideration has been given to other exceptive assignments and no prejudicial error is found.
In the judgment below we find
No error.