Dissenting opinion, per VANN, J. [Vol. 150. the succession to whatever may be the subject of ownership, whether within or without the state, that it can tax, it intended to tax. The question at once arises, what limitation is there upon the power of the legislature with reference to the subject of taxation. It answering this question it must be borne in mind that the tax under consideration is not a tax upon property, but upon the transfer of property, under succession laws, on the death of the owner. (In re Merriam, 141 N. Y. 479; In re Swift, 137 N. Y. 77.) The position of the Supreme Court of the United States upon the subject appears from the following authorities: Mager v. Grima (8 How. [U. S.] 490); Green v. Van Buskirk (5 Wall. 307); State Tax on Foreign Held Bonds (15 Wall. 300, 319); Hervey v. Rhode Island Locomotive Works (93 U. S. 664). In deciding the case last cited the court declared "that every state has the right to regulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides." (p. 671.) The Foreign Held Bonds case involved a tax upon property, not upon the right of succession to property. This right was not considered by the court, and it rests upon principles utterly different from those applicable to taxation upon property itself. It would be a startling proposition for that learned court to hold that a state may not regulate the transfer of property within its own own limits by subjecting it to any reasonable condition. Property owned by a resident gives rise to no question, for there is jurisdiction of the person of the decedent and of his personal representatives. Tangible property, which is apparent to the senses, presents no difficulty, even when it belonged to a non-resident decedent, provided it is physically present in the state. Intangible property, however, because it has no physical presence, has long perplexed both those who N.. Y. Rep.] Dissenting opinion, per VANN, J. make and those who expound the law. It may exist, as it were, in the air, for it may consist of a right, which, if denied, must be established by parol evidence. Such rights are ordinarily regarded as attached to the person of the owner, but they are not inseparable from him, because creditors are permitted to seize them for the payment of debts, even in a state where the owner never resided and never was personally present. (Plimpton v. Bigelow, 93 N. Y. 592, 596, 600; Code Civ. Pro., secs. 648, 2478; see, also, L. 1830, ch. 320, sec. 16; Beers v. Shannon, 73 N. Y. 292; Story's Conflict of Laws, sec. 380; Catlin v. Hull, 21 Vt. 158; Alvany v. Powell, 2 Jones Eq. 51; State v. Dalrymple, 70 Md. 294.) In Plimpton v. Bigelow (supra) this court said: "We do not doubt that shares (of stock in a domestic corporation) for the purpose of attachment proceedings may be deemed to be in the possession of the corporation which issued them, but only at the place where the corporation by intendment of law always remains, to wit, in the state or country of its creation." (p. 600.) There is nothing, therefore, in the nature of the most intangible right, such as a debt without any written evidence thereof, to prevent the legislature from giving it a situs apart from the residence of its owner, but in order to permit this it must have some practical existence in the state that assumes jurisdiction over it either for the purpose of taxation or the collection of debts. In the latter case the residence of the debtor is deemed to give the debt a practical existence in the state where the debtor resides, because the non-resident creditor, if his claim is not paid voluntarily, must go where his debtor is and invoke the aid of the laws in force there, in order to collect it. If the legislature has jurisdiction over intangible property for the purpose of enabling creditors to collect debts, why has it not jurisdiction over it in order to provide means for the support of government, including the courts and other agencies provided to enable non-residents as well as residents to enforce collection of their claims? The most serious obstacle thus far encountered in the effort to sub Dissenting opinion, per VANN, J. [Vol. 150. ject to taxation the transfer of all the personal property of non-resident decedents, which has a practical existence in this state, is the legal maxim, mobilia personam sequuntur. This is a mere fiction of the law, and is not, as we have seen, universal in its application. It is based partly on comity between states and partly on convenience of administration. Long as it has stood, and well embedded in the law as it is, it is not paramount to a statute, and must stand aside whenever the legislature directs it to give way. As said by Judge CoмSTOCK: "Like other fictions it has its special uses. It may be resorted to when convenience and justice so require. In other circumstances the truth and not the fiction affords, as it plainly ought to afford, the rule of action. ingly there seems to be no place for the fiction of which we are speaking in a well-adjusted system of taxation." (People ex rel. Hoyt v. Commissioners of Taxes, 23 N. Y. 224, 228.) * * -* * * * Accord So Judge STORY said, the legal fiction "yields whenever it is necessary for the purposes of justice that the actual situs of the thing should be examined. Hence it is that, whenever personal property is taken by arrest, attachment or execution within a state, the title so acquired under the laws of the state is held valid in every other state, and the same rule is applied to debts due to non-residents, which are subjected to the like process under the local laws of a state." (Conflict of Laws, § 550.) Mr. Justice GRAY, of the Supreme Court of the United States, referring to this maxim, said that it "grew up in the middle ages, when movable property consisted chiefly of gold and jewels, which could easily be carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs. * * * For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed, on its account, at the place where it is, although not the place of his N. Y. Rep.] Dissenting opinion, per VANN, J. own domicile, and even if he is not a citizen or a resident of the state which imposes the tax." (Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22.) Long ago the legislature subjected to general taxation certain kinds of debts due to non-residents, and the act was unanimously sustained by the Commission of Appeals. (L. 1851, ch. 371; People ex rel. Westbrook v. Trustees of Ogdens burgh, 48 N. Y. 390.) Another statute, which virtually repealed the maxim, pro tanto, as to foreign capital invested in banking business in this state, was referred to by this court as "designed to remedy an evil, then existing, which mainly consisted in persons residing near the borders of our state carrying on trades and business here, in competition with our own citizens, and while enjoying the protection of our laws, escaping all the burdens of taxation by having their residences beyond the boundary line." (L. 1855, ch. 37; Williams v. Board of Supervisors, 78 N. Y. 561, 568.) In the People ex rel. Jefferson v. Smith (88 N. Y. 576, 581) Judge EARL said: "That choses in action can have a situs away from the domicile of the owner for the purpose of taxation and for other purposes, is frequently manifested in the statutes of this state. * * I think it may safely be said * that the legal fiction that choses in action always attend the owner, and have a legal existence only at the place of his domicile, has been frequently ignored by the legislature in framing our system of taxation." That the legislature intended to do away with this fiction, so far as it tended to restrict the scope of the act and to give personal property a special situs for the purposes of taxation, is evident from the quotations already made from the statute, and especially from the declaration that "all property or interest therein" capable of ownership, shall be included, "whether situated within or without this state, over which this state has any jurisdiction for the purpose of taxation;" that foreign executors shall not "transfer any stock or obligations standing in the name of a decedent," without payment Dissenting opinion, per VANN, J. [Vol. 150. of the tax, and that no depositary shall transfer “securities or assets of a decedent," without giving the required notice. (Secs. 9 and 22.) "Stock * * * in this state standing in the name of a decedent," apparently refers to shares of stock in a domestic corporation. What are shares of stock, and what rights does the owner thereof enjoy? Judge ANDREWS answered this question when he wrote in Plimpton v. Bigelow (supra), that "the right which a shareholder in a corporation has by reason of his ownership of shares, is a right to participate according to the amount of his stock in the surplus profits of a corporation on a division, and ultimately on its dissolution, in the assets remaining after payment of its debts." Chief Justice SHAW answered it when he said that "the right is, strictly speaking, a right to participate, in a certain proportion, in the immunities and benefits of the corporation, to vote in the choice of their officers and the management of their concerns; to share in the dividends and profits and to receive an aliquot part of the proceeds of the capital on winding up and terminating the active existence and operations of the corporation." (Fisher v. Essex Bank, 5 Gray [Mass.], 377.) Judge EARL, referring to the same subject, has said that "a share of stock represents the interest which the shareholder has in the capital and net earnings of the corporation. The interest is of an abstract nature; that is, the shareholder cannot by any act of his, nor ordinarily by any act of the law, reduce it to possession." (Jermain v. Lake Shore & M. S. R. Co., 91 N. Y. 492.) "A share of stock is an incorporeal, intangible thing." (Neiler v. Kelley, 69 Pa. St. 407.) "The expression, 'shares of stock,' when qualified by words indicating number and ownership, expresses the extent of the owner's interest in the corporation property. The interest is equitable and does not give him the right of ownership to specific property of the corporation, but he does own the specific stock held in his name, and under the rules of law, |