law.87 And, while the administration and distribution of the personal estate of a nonresident decedent are regulated by the law of the owner's domicile, in this country the maxim of "Mobilia sequuntur personam" has not been adopted or applied, in its full force, as against the state, upon questions of taxation; in fact, in some cases it has been entirely rejected, as wholly inapplicable.

In some states this result has been reached either by a construction placed upon the statutes on grounds of public policy, favoring equality, and to prevent unjust discrimination between estates of resident and nonresident decedents, and in others by express legislation, and the tax has been imposed upon both the real and personal property, tangible and intangible, of nonresident or alien decedents actually within the taxing state at the time of death, whether or not there be legatees or heirs within the state. In such cases the theory seems to be that for the purposes of this tax the succession is deemed to take place under the law of the taxing state, in reaching which result the courts have leaned towards the actual or real situs of property, having a visible and tangible existence, rather than to the mere domicile of the owner.

Such would seem to be the law of Maryland, Maine, North

87 See chapter 2, § 23; State v. Dalrymple, 70 Md. 294, 17 Atl. 82; Wallace v. Attorney General, 1 Ch. App. 1; Alvany v. Powell, 2 Jones, Eq. 51; In re Enston, 113 N. Y. 184, 21 N. E. 87; In re McPherson, 104 N. Y. 316, 10 N. E. 685; In re Romaine, 127 N. Y. 86, 27 N. E. 759; In re James, 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 28 N. Y. Supp. 351, and 6 Misc. Rep. 206, 27 N. Y Supp. 288; In re Bittinger's Estate, 129 Pa. St. 338, 18 Atl. 132; In re Small's Estate, 151 Pa. St. 1, 25 Atl. 23. See note to 32 Am. Law Reg. (N. S.) 365, and cases cited.

88 See Appendix IV.-VII., statutes of Connecticut, Maine, Massachusetts, and Ohio.

Carolina, New York, Connecticut, Massachusetts, and Ohio.8

89

In Connecticut the tax, under a very comprehensive statute, is expressly applied to tangible and intangible property.90

90

The state has power to give tangible personal property a special situs for the purpose of taxation."1

In North Carolina the question was early considered under a statute providing for a tax upon the descent or be quest of real estate and personal property passing to stran

89 Real and leasehold estate in England is taxed irrespective of domicile. Chatfield v. Berchtoldt, 7 Ch. App. 192.

90 Pub. Laws Conn. 1889, c. 180, Appendix VII. No decision seems to have been made as yet construing this statute. The same provisions are contained in the statutes of Massachusetts, Maine, and Ohio. Alvany v. Powell, 2 Jones, Eq. 51; State v. Brevard, Phil. Eq. 141; State v. Brim, 4 Jones, Eq. 301; State v. Dalrymple, 70 Md. 294, 17 Atl. 82; In re Enston's Will, 113 N. Y. 183, 21 N. E. 87; In re Vinot (Surr.) 7 N. Y. Supp. 517; In re Clark (Surr.) 9 N. Y. Supp. 444; In re Romaine, 127 N. Y. 80-88, 27 N. E. 759. See, also, In re Duckworth (July 3, 1891) 5 N. Y. Law J. 864; In re Morejon, Id. 864; In re Boudon (March 1, 1892) 6 N. Y. Law J. 1322. Regarding stocks and bonds of foreign corporations belonging to nonresident decedents, see In re James (1894) 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 28 N. Y. Supp. 351; In re Thomas, 3 Misc. Rep. 388, 24 N. Y. Supp. 713; In re Corning's Estate, 3 Misc. Rep. 160, 23 N. Y. Supp. 285; In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330; Laws N. Y. 1887, c. 713, as amending Laws 1885, c. 483, Appendix, I. See, also, an article by E. H. Blanc, Esq., in 45 Alb. Law J. April 16, 1892, p. 331, entitled "Collateral Inheritance Tax in Connection with Transfer of Stocks and Loans by Foreign Executors and Administrators," reviewing the law of New York.

91 Cooley, Tax'n (2d Ed.) 23; citing American Coal Co. v. County Com'rs of Allegany Co., 59 Md. 185; Mayor, etc., of Baltimore v. Baltimore City Passenger R. Co., 57 Md. 31.

gers or collateral kindred. In that case 92 the decedent was a foreigner, and died abroad intestate, leaving property in the state. The authorities under the English legacy act were considered and rejected, and it was held that the principle by which a distinction was made between personal property and real estate, so that in regard to the former a construction depending upon the domicile of the owner was adopted, was based upon a fiction that had no application to questions of revenue, but merely applied to the dis tribution of the personal estates of deceased persons, and it was claimed that it never had any application where the rights of creditors were concerned.93

Pearson, J., said:

"The notion upon which the principle of the domicile is based-that personal property attends the person, and is where the owner lives-is a mere fiction, and its very restricted application rests upon the comity of nations; but in collecting debts and taxes we must proceed upon the fact, and consider the property as being where it actually is. In other words, the situs of the property must be the governing principle." "5

92 Alvany v. Powell (1854) supra; criticising Thomson v. Advocate General, 12 Clark & F. 1, and other English cases.

93 Story, Confl. Law, 354; Moye v. May, 8 Ired. Eq. 131. 94 2 Jones, Eq. 57, supra.

95 That the fiction is simply based on considerations of comity, see Catlin v. Hull, 21 Vt. 158, approved in Hoyt v. Commissioners, 23 N. Y. 232; Whart. Priv. Int. Law, §§ 11, 13-297; Green v. Van Buskirk, 7 Wall. 150; Hervey v. Locomotive Works, 93 U. S. 664; Lewis v. Woodford, 58 Tean. 25; Birtwhistle v. Vardill, 5 Barn. & C. 438-451. See the whole question discussed in Re Romaine, 127 N. Y. 80, 27 N. E. 759; 48 Phila. Leg. Int. 265; criticised in Alb. Law. J. Dec. 12, 1891, p. 478. See Alb. Law. J. April 16, 1892, p. 331. See In re James, 144 N. Y. 6, 38 N. E. 961; Id., 77 Hun, 213, 28 N. Y. Supp. 351; In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 611, 37 N. E. 823 (no opinion).

Precisely the same views have been announced in New York, under general tax laws.96

97

So the question has been considered under the Maryland statute, with reference to the liability of a nonresident decedent, who at the time of his death owned certain stocks, bonds, and cash, proceeds of the estate of his deceased brother in that state, and whose legatee-a stranger to the blood-resided outside of the state. McSherry, J., said: "No reason has been assigned, or can be suggested, why the broad language of the statute, and the evident design of the legislature, should be so narrowed and restricted as to exempt from this tax the estate of a nonresident actually here, notwithstanding that same property may, for other purposes be treated as constructively elsewhere. If we adopt the view insisted on by the appellees, it will result in a discrimination in favor of nonresidents and against our own citizens, a discrimination, too, which the legislature certainly never intended to make, and for which no warrant can be found in the plain letter of the statute. In permitting property within the state, on the death of its owner, to pass by devise, or descent, or distribution, the legislature has seen fit, where strangers or collateral kindred received it, to exact, as the condition upon which that privilege is granted, the tax in question. The imposition and collection of the tax, therefore, cannot depend upon the mere incidental residence of the owner." 98

The court distinguished the English cases upon the ground that there was no intention, as declared in those

96 Hoyt v. Commissioners, supra; Graham v. Bank, 84 N. Y. 400. See People v. Coleman, 119 N. Y. 139, 23 N. E. 488; People v. Barker, 135 N. Y. 656, 32 N. E. 252.

97 State v. Dairymple, 70 Md. 294, 17 Atl. 82.

98 And see opinion of Woodward, C. J., in Foreign Bond Tax Cases (Pa. Sup. Ct.) 15 Wall. 305, and cases cited supra.

cases, on the part of the legislature, to impose the tax on the estates of alien or nonresident decedents."

And the same criticism applies to other cases decided under these statutes,-that there was no intention to tax such nonresident property, and the result in such cases will be found to be predicated solely upon this ground, and the fiction of law thus held applicable.100

So the treaty of France with the United States does not relieve citizens of France leaving property here at their death from the New York inheritance tax. The treaty of 1853 provides: "In all states of the Union whose existing

99 Citing and reviewing Citizens' Nat. Bank v. Sharp, 53 Md. 521; Orcutt's Appeal, 97 Pa. St. 179; Attorney General v. Hope, 1 Cromp., M. & R. 530; Attorney General v. Cockerell, 1 Price, 165; Attorney General v. Beetson, 7 Price, 560; Thomson v. Advocate General, 12 Clark & F. 1; Wallace v. Attorney General, L. R. 1 Ch. App. 1.

100 U. S. v. Hunnewell, 13 Fed. 617; U. S. v. Morris, 27 Fed. 341. See Com. v. Chesapeake & O. R. Co., 27 Grat. 354; Orcutt's Appeal, 97 Pa. St. 185; Del Busto's Estate, 23 Wkly. Notes Cas. 111; In re Bacon's Estate, 3 Del. Co. Rep. 603; In re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36; In re Enston's Will, 113 N. Y. 181, 21 N. E. 87, where Andrews, J., said that "the fiction must prevail unless there is something in the policy of the statute or its language which shows a different legislative intent." Notwithstanding the ruling in Re Romaine, 127 N. Y. 80, 27 N. E. 759, the fiction has been applied to stocks and bonds of foreign corporations within the state belonging to a deceased nonresident, the court holding that, there being no intention in the act of 1887 (chapter 713) to tax these securities, the fiction prevailed, and they were presumed to be at the domicile of the owner. In re James (1894) 144 N. Y. 6, 38 N. E. 961, affirming 77 Hun, 213, 28 N. Y. Supp. 351; distinguishing In re Romaine, supra. See elaborate article on the subject in Alb. Law J. April 16, 1892, p. 331. This would seem to overrule In re Duckworth (July 3, 1891) 5 N. Y. Law J. 864; In re Morejon (July 31, 1891) Id.; In re Bondon (March 1, 1892) 6 N. Y. Law J. 1322. See, also, In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, affirmed 143 N. Y. 641, 37 N. E. 823, on opinion below. But see Hoyt v. Commissioners of Taxes, 23 N. Y. 232, and cases supra, page 170.