uary estate of the amount of the tax to be assessed, either upon prior legacies, or upon its value. He held that the legacies taxable should be reported, irrespective of the provision of the will; and that a mode of payment of the succession tax prescribed by will is something with which the statute is not concerned. I am satisfied with his reasoning and can add nothing to its force. 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.

A question is raised as to the effect upon the law, as contained in the acts of 1885 and 1887, of the passage of chapter 215 of the Laws of 1891; but as that has been the subject of another appeal, and is fully discussed in the opinion in the Matter of the Estate of Prime, 136 N. Y. 347, reference will be made to it here.

My brethren are of the opinion that the tax imposed under the act is a tax on the right of succession, under a will, or by devolution in case of intestacy; a view of the law which my consideration of the question precludes my assenting to.

They concur in my opinion so far as it relates to the imposition of a tax upon real estate situated out of this State, although owned by a decedent, residing here at the time of his decease; holding with me that taxation of such was not intended, and that the doctrine of equitable conversion is not applicable to subject it to taxation. But as to the personal property of a resident decedent, wheresoever situated, whether within or without the State, they are of the opinion that it is subject to the tax imposed by the act.

The judgment below, therefore, should be so modified as to exclude from its operation the personal property in New Jersey, and, as so modified, it should be affirmed, without costs to either party as against the other.1

FROTHINGHAM v. SHAW.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1899.

[Reported 175 Massachusetts, 59.]

MORTON, J. This is a petition by the plaintiff, as executor of the will of one Joseph Frothingham, for instructions in regard to the payment of a collateral inheritance tax on the residuary legacies. The case was heard on agreed facts, and comes here by successive appeals from decrees of the probate court and of a single justice of this court finding that the tax was payable, and directing the executor to pay the same. At the time of his death the testator was domiciled at Salem, in this Commonwealth, and his estate, except certain real estate situ

ated here, and appraised at $2100, and cash in a savings bank in Salem amounting to $993, was, and for many years had been, in the hands of his agents in New York, and consisted of bonds and stock of foreign corporations, a certificate of indebtedness of a foreign corporation, bond secured by mortgage on real estate in New Hampshire, the makers living in New York, and of cash on deposit with a savings bank and with individuals in Brooklyn; the total being upwards of $40,000. There has been no administration in New York, and the petitioner has taken possession of all the property except the real estate, and has paid all of the debts and legacies except the residuary legacies. None of the legacies are entitled to exemption if otherwise liable to the tax. The appellants contend that the stocks, bonds, etc., were not "property within the jurisdiction of the Commonwealth," within the meaning of St. 1891, c. 425, § 1, and that, if they were, the succession took place by virtue of the law of New York, and not of this State. It is clear that, if the question of the liability of the testator to be taxed in Salem for the property had arisen during his lifetime, he would have been taxable for it under Pub. St. c. 11, §§ 4, 20, notwithstanding the certificates, etc., were in New York (Kirkland v. Hotchkiss, 100 U. S. 491; State Tax on Foreign-Held Bonds Case, 15 Wall. 300; Cooley, Tax'n [2d ed.], 371); and the liability would have extended to and included the bonds secured by mortgage (Kirkland v. Hotchkiss, supra; State Tax on Foreign-Held Bonds Case, supra; Hale v. Commissioners, 137 Mass. 111). It is true that the Public Statutes provide that personal property, wherever situated, whether within or without the Commonwealth, shall be taxed to the owner in the place where he is an inhabitant. But it is obvious that the legislature cannot authorize the taxation of property over which it has no control, and the principle underlying the provision is that personal property follows the person of the owner, and properly may be regarded, therefore, for the purposes of taxation, as having a situs at his domicile, and as being taxable there. After the testator's death the property would have been taxable to his executors for three years, or till distributed and paid over to those entitled to it, and notice thereof to the assessors; showing that the fiction, if it is one, is continued for the purposes of taxation after the owner's death. Pub. St. c. 11, § 20, cl. 7; Hardy v. Inhabitants of Yarmouth, 6 Allen, 277. In the present case the tax is not upon property as such, but upon the privilege of disposing of it by will, and of succeeding to it on the death of the testator or intestate; and it has," as was said in Minot v. Winthrop, infra, "some of the characteristics of a duty on the administration of the estates of deceased persons." Minot v. Winthrop, 162 Mass. 113; Callahan v. Woodbridge, 171 Mass. 595; Greves v. Shaw, 173 Mass. 205; Moody v. Shaw, 173 Mass. 375. In arriving at the amount of the tax, the property within the jurisdiction of the Commonwealth is considered, and we see no reason for supposing that the legislature intended to depart from the principle heretofore

66

adopted, which regards personal property, for the purposes of taxation, as having a situs at the domicile of its owner. This is the general rule (Cooley, Tax'n [2d ed.], 372), and, though it may and does lead to double taxation, that has not been accounted a sufficient objection to taxing personal property to the owner during his life at the place of his domicile, and we do not see that it is a sufficient objection to the imposition of succession taxes or administration duties, under like circumstances, after his death. In regard to the mortgage bonds, it is to be noted, in addition to what has been said, that this case differs from Callahan v. Woodbridge, supra. In that case the testator's domicile was in New York, and it does not appear from the opinion that the note and mortgage deed were in this State. In this case the domicile was in this Commonwealth, and we think that, for the purposes of taxation, the mortgage debt may be regarded as having a situs here. This is the view taken in Hanson, Death Duties (4th ed.), 239, 240, which is cited apparently with approval by Mr. Dicey, though he calls attention to cases which may tend in another direction. See Dicey, Confl. Laws, 319, note 1. It seems to us, therefore, that for the purposes of the tax in question the property in the hands of the executor must be regarded as having been within the jurisdiction of this Commonwealth at the time of the testator's death. See In re Swift, 137 N. Y. 77; In re Miller's Estate, 182 Pa. St. 162.

The petitioner further contends that the succession took place by virtue of the law of New York. But it is settled that the succession to movable property is governed by the law of the owner's domicile at the time of his death. This, it has been often said, is the universal rule, and applies to movables wherever situated. Stevens v. Gaylord, 11 Mass. 256; Dawes v. Head, 3 Pick. 129, 144, 145; Fay v. Haven, 3 Metc. (Mass.) 109; Wilkins v. Ellett, 9 Wall. 740; id. 108 U. S. 256; Freke v. Carbery, L. R. 16 Eq. 461; Attorney-General v. Campbell, L. R. 5 H. L. 524; Duncan v. Lawson, 41 Ch. Div. 394; Sill v. Worswick, 1 H. Bl. 690; Dicey, Confl. Laws, 683; Story, Confil. Laws (7th ed.), §§ 380, 481. If there are movables in a foreign country, the law of the domicile is given an extra-territorial effect by the courts of that country, and in a just and proper sense the succession is said to take place by force of, and to be governed by, the law of the domicile. Accordingly it has been held that legacy and succession duties, as such, were payable at the place of domicile in respect to movable property wherever situated, because in such cases the succession or legacy took effect by virtue of the law of domicile. Wallace v. Attorney-General (1865) 1 Ch. App. 1; Dicey, Confl. Laws, 785; Hanson, Death Duties (4th ed.), 423, 526. With probate or estate or administration duties, as such, it is different. They are levied in respect of the control which every government has over the property actually situated within its jurisdiction, irrespective of the place of domicile. Laidley v. Lord Advocate, 15 App. Cas. 468, 483; Hanson, Death Duties (4th ed.), 2, 63. Of course, any state or country may impose

a tax, and give it such name or no name as it chooses, which shall
embrace, if so intended, the various grounds upon which taxes are or
may be levied in respect of the devolution of estates of deceased
persons, and which shall be leviable according as the facts in each
particular case warrant. In England, for instance, the "estate duty,"

as it is termed, under the Finance Act of 1894 (57 & 58 Vict. c. 30), has
largely superseded the probate duty, and under some circumstances
takes the place of the legacy and succession duty also. Hanson, Death
Duties (4th ed.), 62, 63, 81. But, whatever the form of the tax, the
succession takes place and is governed by the law of the domicile, and
if the actual situs is in a foreign country, the courts of that country
cannot annul the succession established by the law of the domicile.
Dammert v. Osborn, 141 N. Y. 564. In further illustration of the
extent to which the law of the domicile operates, it is to be noted that
the domicile is regarded as the place of principal administration, and
any other administration is ancillary to that granted there. Payment
by a foreign debtor to the domiciliary administrator will be a bar to a
suit brought by an ancillary administrator subsequently appointed.
Wilkins v. Ellett, supra; Stevens v. Gaylord, supra; Hutchins .
Bank, 12 Metc. (Mass.) 421; Martin v. Gage, 147 Mass. 204. And
the domiciliary administrator has sufficient standing in the courts of
another State to appeal from a decree appointing an ancillary adminis-
trator. Smith v. Sherman, 4 Cush. 408. Moreover, it is to be observed
if that is material that there has been no administration in New
York, that the executor was appointed here, and has taken possession
of the property by virtue of such appointment, and must distribute it
and account for it according to the decrees of the courts of this Com-
monwealth. To say, therefore, that the succession has taken place by
virtue of the law of New York, would be no less a fiction than the
petitioner insists that the maxim, Mobilia sequuntur personam, is
when applied to matters of taxation. The petitioner contends that in
Callahan v. Woodbridge, supra, it was held that the succession to the
personal property in this State took place by virtue of the law of this
State, although the testator was domiciled in New York. We do not
so understand that case. That case and Greves v. Shaw, supra, and
Moody v. Shaw, supra, rest on the right of a State to impose a tax or
duty in respect to the passing on the death of a non-resident of personal
property belonging to him, and situated within its jurisdiction. We
think that the decree should be affirmed.1
So ordered.

--

1 For the English doctrines as to the effect of their Revenue Laws on non-residents and on foreign property, see Dicey, Conflict of Laws, 781.

For cases on the Income Tax, see Calcutta Jute Mills v. Nicholson, 1 Ex. D. 428; Colquhoun v. Brooks, 14 App. Cas. 493. On Probate Duty, see Att.-Gen. v. Hope, 1 C. M. & R. 530; Sudeley v. Att.-Gen., [1897] A. C. 11. On Legacy Duty, see Thompson v. Adv.-Gen., 12 Cl. & F. 1; Chatfield v. Berchtoldt, L. R. 7 Ch. 192. On Succession Duties, see Att.-Gen. v. Campbell, L. R. 5 H. L. 524; Wallace v. Att.Gen., L. R. 1 Ch. 1. ED.

SECTION III.

TEMPORARY PRESENCE.

CALDWELL v. VAN VLISSENGEN.

CHANCERY. 1851.

[Reported 9 Hare, 415.]

TURNER, V. C.1 The plaintiffs in these causes are the assignees of a patent granted to James Lowe in the year 1838, for a mode of propelling vessels by means of one or more curved blades set or affixed on a revolving shaft below the water-line of the vessel, and running from stem to stern of the vessel. The defendants in the first two causes are owners of vessels trading between Holland and this country, and the defendant in the third cause was the captain of a vessel engaged in the same trade. . . .

It was insisted, on the part of the defendants, that there was in each of these cases a sufficient ground for the interference of the court being withheld. In the first place, the ground is thus stated in the affidavit of Izebbe Swart, of Amsterdam. He says, in his affidavit, that he is the master of the ship called the Burgemeester Huidekoper, ... that the vessel belongs to a company formed in Holland; . . that some time before the vessel was built and fitted, the same propelling power with that used for the vessel had been openly used and exercised in Holland; . . . that no patent has been granted, or, as he is informed and believes, applied for in Holland, for or in respect of such alleged invention. . . .

It is to be observed, that in none of these cases is it attempted to be denied, on the part of the defendants, that the screw propellers used in their respective vessels fall within the invention claimed by this patent; and after anxiously considering the case, I am of opinion that I cannot withhold these injunctions, upon the grounds which are stated. I take the rule to be universal, that foreigners are in all cases subject to the laws of the country in which they may happen to be; and if in any case, when they are out of their own country, their rights are regulated and governed by their own laws, I take it to be not by force of those laws themselves, but by the law of the country in which they may be, adopting those laws as part of their own law for the purpose of determining such rights. Mr. Justice Story, in his Treatise on the "Conflict of Laws," addressing himself to this subject (s. 541), says: "In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate over them, it would

1 Part of the opinion is omitted. ED.