In New York it is held that a mode of payment of the succession tax prescribed by will is something with which the statute is not concerned, and that manifestly, under the law, that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deduction for any purpose or under any testamentary direction. 107

Under the English law in valuing a succession to lands vested in trustees, the cestui que trust cannot deduct, as "necessary outgoings," reasonable expense of management incurred, independently of his control, by the trustees under an authority given by will.108

But statutes making it the duty of executors to pay mean domestic executors and administrators, as it is not to be presumed that the legislature intended to control or impose liabilities upon foreign personal representatives or foreign decedents, as they are not subject to its jurisdiction. Such statutes, it has been held, cannot be enforced.109 But, as we have already seen,1 110 the decisions upon this point were based upon the ground that there was no intention on the part of the legislature to tax nonresident decedents. But, where such intention exists, the state has undoubted power to tax the property of foreign decedents within its jurisdic

107 In re Swift, 137 N. Y. 77, 32 N. E. 1096.

108 In re Earl Cowley, L. R. 1 Exch. 288.

109 Kintzing v. Hutchinson, 34 Leg. Int. 365; In re Enston, 13 N. Y. 180, 21 N. E. 84, by a divided court; In re Tulane, 51 Hun, 213, 4 N. Y. Supp. 36. See In re Romaine, 127 N. Y. S6, 27 N. E. 759. But see In re James, 144 N. Y. 6, 38 N. E. 961; In re Phipps, 77 Hun, 325, 28 N. Y. Supp. 330, affirmed in court of appeals without opinion, 143 N. Y. 641, 37 N. E. 823. See an article entitled "Collateral Inheritance Tax in Connection with Transfer of Stocks and Loans by Foreign Executors and Administrators," by E. H. Blanc, Esq., Alb. Law J. April 16, 1892, p. 331.

110 Chapter 4, § 47, subd. c.

tion, and to enforce payment of the tax from persons seeking to obtain such property.111

So it would seem that domestic executors are not responsible for the tax upon real property situate in another state at the death of the testator, although the proceeds are subsequently brought within the taxing state, as the succession takes place to such property under the law of the place where it is situate.112

Hence the state has no power to enforce a tax in the nature of a direct tax, and compel the executor to pay it upon such foreign real estate.113

This

But where the will of a resident directs that his foreign real estate be converted into personalty it is so considered, and the executor will be liable for the tax thereon. rule exists in Pennsylvania 114 and in England, but in New York the subject of the taxation of real property through the doctrine of equitable conversion has not been definitely determined by the highest courts, and the question remains doubtful.115

By the Pennsylvania statute foreign executors and administrators are to pay the tax on stocks transferred within the state, and if they default the corporation permitting the transfer of such stock is liable.116

A similar provision in the New York statute was held to

111 Chapter 4, § 47, subd. b, et seq.

112 State v. Brevard, Phil. Eq. (N. C.) 141; Alvany v. Powell, 2 Jones, Eq. 51; Drayton's Appeal, 61 Pa. St. 172; Com. v. Coleman, 52 Pa. St. 468; In re Hood's Estate, 21 Pa. St. (9 Harris) 106.

113 In re Bittinger's Estate (Appeal of Commonwealth) 129 Pa. St. 338, 18 Atl. 132. See In re Dewey's Estate, N. Y. Law J. Oct. 21, 1889. 114 Chapter 4, § 46, subd. b.

115 See chapter 4, § 46, subd. b; In re Swift, 137 N. Y. 77, 32 N. E. 1096, and cases there cited; In re Curtis, 142 N. Y. 219, 36 N. E. 887.

116 See chapter 4, § 47, subd. c; Scott, Intest. Law Pa. 1871, p. 547, citing In re Cook's Estate, 9 Leg. Int. 50. Contra, Kintzing v. Hutchinson, 34 Leg. Int. 365. See In re Cigala, 7 Ch. Div. 351.

be unenforceable under the law 117 passed in 1885, but under the amended statute 118 taxing nonresident decedents' estates this provision would appear to be enforceable against the representatives of such decedents seeking to transfer property which was within the state at the time of death.119

There are further exceptions to the rule requiring the executor or administrator to deduct the tax, as where real estate passes directly to the devisees, and in intestacy to the heirs. It is then no part of the executor's or administrator's duty to pay the tax. Those who take the lands are liable therefor.120

So it would seem that an administrator has no right to pay the tax upon real estate out of the personalty, as his rights and liabilities are limited to the latter property.121

In Pennsylvania, if it is an intestate estate, and administration is granted there, to enable the administrator to collect the assets, he pays the tax out of the aggregate of the estate before distribution. If a will be proved and administered, the executor deducts the collateral tax from the devised property, unless the will otherwise directs.1

122

And an executor is not liable, as such, for a collateral tax due the state upon a devise of land to himself, though he be liable as an individual; but his coexecutors are so liable.123

117 In re Enston, supra.

118 Appendix, I., Laws 1887.

119 See chapter 4, § 47, subds. b, c, and cases cited; In re Romaine, In re James, and cases supra.

120 In re Boyd's Estate, 4 Wkly. Notes Cas. 510; In re Forbes' Estate, 16 Phila. 356; Com. v. Coleman, 52 Pa. St. 468.

121 Com. v. Coleman, supra.

122 Com. v. Coleman, supra; Com. v. Smith, 5 Pa. St. 144; In re King's Estate, 11 Phila. 26. As to duties of administrator in Pennsylvania under these statutes, see Scott, Int. Law (Pa.; 1871) p. 535. 123 State v. Brevard, Phil. Eq. (N. C.) 141. See In re Farley, 15 N. Y. St. Rep. 727.

But few adjudications have thus far been made in this country determining the extent of the personal liability of executors, administrators, or trustees for the payment of the tax under the statutory provisions heretofore enumerated. Under the English statutes the executor or other representative is held primarily liable to pay the duty,124 and where such executor fails to deduct the duty, or the legatee fails to pay the amount thereof, both he and the legatee accepting the legacy or share 125 become personally liable for the tax.126

Where the executor is compelled to pay the duty, he has an appropriate remedy over against the legatee, the questions relating to which subject are considered in the chapter relating to the remedy, and practice under these acts.127

It is doubtful whether, under the acts of congress, the executor was liable in personam for the legacy duty.128

There was no personal liability upon the legatee unless it appeared that he had custody or possession of the property itself, or of the legacy, and refused to pay the tax after a demand made as required by the statute.129

On failure of the executor or administrator to pay, the tax suit was maintainable against the individual in possession to enforce the statutory lien. 130 So, under the succession

124 Bate v. Payne, 13 Q. B. 900.

125 Attorney General v. Munby, 3 Hurl. & N. 826; Foster v. Ley, 2 Bing. N. C. 276; In re McPherson, 104 N. Y. 323, 10 N. E. 685.

126 In re Sammon, 3 Mees. & W. 381; Bate v. Payne, supra; In re Wilkinson, 1 Cromp., M. & R. 142; Hales v. Freeman, 1 Brod. & B. 391; 15 & 16 Vict. c. 51, § 44; 36 Geo. III. c. 52, § 6; 13 & 14 Vict. c. 97, § 8.

127 See cases supra, and post, § 64, and chapter 8, § 66.

128 U. S. v. Allen, 9 Ben. 154, Fed. Cas. No. 14,430; U. S. v. Trucks, 27 Fed. 541.

129 U. S. v. Trucks, supra; U. S. v. Pennsylvania Co., 27 Fed. 539; 12 Stat. 485, § 112.

130 U. S. v. Trucks, supra.

duty act of congress,131 the person beneficially interested in the property was the one liable to pay the tax, and not the trustee or executor in whom the legal title vested or to whom a power in trust was given for the benefit of such person.132

In Pennsylvania executors and administrators are treated as agents of the state, and, as such, their duty is to retain the tax and pay it over to the proper officers.133

The law of that state 134 expressly declares that the tax on real estate shall remain a lien thereon until paid, and that 135 the owners of all estates and all executors, adminis trators, and their sureties shall only be discharged from liability for the amount of such taxes the settlement of which they may be charged with by having paid the same over as directed by law. This liability is perpetual, and the limitations in the act only apply to purchasers of the real estate.136

Where the tax is not paid within the time limited by law, the penalty is properly chargeable to the administrator or executor.137

In New York it has recently been determined that a personal liability138 for the tax is imposed upon executors, administrators, and trustees which continues until the tax has been paid. Such liability becomes fixed where the repre

131 13 Stat. 285; Act June 30, 1864, §§ 126, 127.

132 U. S. v. Tappan, 10 Ben. 284, Fed. Cas. No. 16,431. See Sohier v. Eldridge, 103 Mass. 349; Hathaway v. Fish, 13 Allen, 267.

133 Seibert's Appeal (Pa. Sup.) 6 Atl. 105; Wright's Appeal, 38 Pa. St. 507.

134 Appendix, III., Laws Pa. 1887, p. 79, § 3.

135 Laws Pa. 1887, p. 79, § 1.

136 Cullen's Estate, 26 Wkly. Notes Cas. 216; James' Appeal, 2 Del. Co. Rep. 164.

137 In re Palmer's Estate, 2 Del. Co. Rep. 180. See In rè Minturn's Estate, 3 N. Y. Law J. 804

138 See Laws 1892, c. 399, § 3.