delivered the opinion of the Court.
Thеse , two cases, which are really one, grow out of the operation of a transfer tax by the State of Connecticut. They are brought to this Court, one by certiorari, and one by writ of error. The questions presented are whether the tax on the transfer of certain parts of the large estate of Robert B. Hirsch was in violation of the due process clause of the Fourteenth Amendment to the Federal Coristitution in that they were tangible property in New York and not in Connecticut. Hirsch died September 23, 1924, domiciled at Stamford, Connecticut, leaving a will with two codicils executed in accordance' with the laws of both New York and Connecticut.- The plaintiffs are the surviving executors of the will. Hirsch left real estate, chattels, cattle, horses and poultry in Connecticut, and also a debt due from a resident of Connecticut and a certificate of stock in a Connecticut corporation, as to all of which there is no dispute about the tax that was imposed. The great bulk of his estate, however, consisted of (1) a large -interest, as general partner, appraised at $1,687,245.34, in the partnership of William Openhym & Sons, doing business in New York, and оrganized under the Limited Partnership Act of that State; (2) certificates of stock in’'New York, New Jersey and Canada corporations, appraised at $277,864.25; (3) bonds and Treasury
On September 1,1925, the executors filed in the Probate Court for the Stamford district, and with the tax commissioner for Connecticut, a statement under oath covering the property of the estate and the claimed deductions therefrom, all this for the purpose of determining the succession tax, if any, due the State of Connecticut. The tax commissioner thereafter filed a copy of his computation of the tax with the Probate Court, to which the executors made objection, but that court on December 4,1925, made its order and decrеe approving the computation of $188,-780.58, and directed the executors to pay this amount to the State Treasurer.
From this order the plaintiff executors took- an appeal to the Superior Court of Fairfield County, and then by stipulation of the parties the case was reserved for the advice and direction of the Supreme Court of Errors as to what judgment, decree or decision should be made or rendered thereon by the Superior Court.
The chief questions considered by the Supreme Court of Errors were, first, whether the interest of the decedent in the partnership of Openhym & Sons was subject to a transfer tax in Connecticut, and second, whether the bonds of the United States and certificates of its indebted
The Supreme Court of Errors held, first, that the interest of the decedent in the partnership was a eho§g in action and intangible and the transfer thereof was subject to the tax imposed by the law of the decedent’s domicil; second, that the bonds and certificates of the United States were tangible property having a
situs
in New York and were not within the taxable jurisdiction of Connecticut, but 'were to be regarded as in the same class of tangibles as the paintings, works of' art and furniture considered in the case of
Frick
v.
Pennsylvania,
The Superior Court, following the advice of the Supreme Court of Errors, entered a judgment giving full effect to it. That is the final judgment' in the case and it is the judgment now to be reviewed.
• In No. 191 a writ of error was allowed by the Chief Justice of the Supreme Court of Errors and the Presiding Judge of the Superior Court of the State of Connecticut under Section 237(a) of the Judicial Code, Act of February 13, 1925 (ch. 229, 43 Stat. 936, 937) to the final and consolidated judgment of the Superior Court of Con
In‘No. 190, the State Tax Commissioner applied for a writ of certiorari to the same consolidated judgment, and sought a reversal of that judgment in so far as it denied to the State of Connecticut, because of the Fourteenth Amendment to the Federal Constitution, the power and right created by its statute, chapter 190 of the Public Acts of 1923, to tax the transfer of the United States bonds and certificates of indеbtedness and of $287.50 in bank notes and coin, all in a safe deposit box in the City and State of New York, as not within the taxing jurisdiction of Connecticut.-
Had the Supreme Court of Errors put its ruling against the validity of part of the tax on the construction of the State Constitution or statute, we could not review that' ruling, because it would have involved only a question of state law, but so far as the ruling was put on the ground that the State could not impose the tax consistently with the due process of law clause of the.Fourteenth Amendment, a federal question is presented which we may consider; and when we havе determined the federal questions, the cause will go back to the state court for further..proceedings not inconsistent with our views on such federal questions.
“All property and any interest therein owned by'a resident of this state at the time of his decease-, and all real estate within this state owned by a nonresident of this state at the time of his decease, which shall pass by will or inheritance under the laws of this state; and all gifts of such property by deed, grant or other conveyance, made in cоntemplation of the death of the grantor or donor, or intended to take effect in possession or enjoyment at or after the death of such grantor or donor, shall be subject to the tax herein prescribed.”
This is a tax not upon property but upon the right or privilege of succession to the property of a deceased person as is made clear in the opinion of the Supreme Court of Errors in this and prior cases.
Silberman
v.
Blodgett,
“ Taxes of this general character are universally deemed to relate, not to property eo nomine, but to its passage by will or by descеnt in case of its intestacy, as distinguished from taxes imposed on property, real or personal as such, because of its ownership and possession. In other words, the public contribution which death duties exact is predicated on the passing of property as the result of death, as distinct from a tax on property dissociated from its transmission or receipt by will, or as the result of intestacy.”
The power of the State of a man’s domicil to impose a tax upon the succession to, or the transfer of, his intangible property, even when the ‘evidences of such property are outside of the State at the time of his death, has been constantly asserted by the legislatures of the various
At common law the maxim “
mobilia sequimtur personam ”
applied. There has been discussion and criticism of the application and enforcement of that maxim, but it is so fixed in the common law of this country and of England, in so far as it relates to intangible property, including choses in action, without regard to whether they are
Further, this principle is not to be shaken by the inquiry into the question whether the transfer of such intangibles, like specialties, bonds or promissory notes, is subject to taxation in another jurisdiction. As to that we need not inquire. It is not the issue in this case. For present purposes it suffices that intangible personalty has such a situs at the domicil of its owner that its transfer on his death may be taxed there.
This brings us to the question whether the partnership interest of the decedent in William Openhym & Sons was a chose in action and intаngible personalty. The partnership was a limited partnership organized in New York, the last agreement therefor having been executed in December, 1921. The New York partnership law then in force was Chapter 408, Laws of 1919.
Under Section 51, of this law, a partner is a co-owner with his partner of specific partnership property, holding this property as a tenant in partnership. Such tenancy confers certain rights with limitations. A partner has a right equal to that of his partners to possess specific partnership property for partnership purposes, but not othеrwise. His right in specific partnership property is not assignable nor is it subject to attachment or execution upon a personal claim against him; upon his death the right to the specific property vests not in the partner’s personal representative but in the surviving partner; his right in specific property is not subject to dower, curtesy, or allowance to widows, heirs or next of kin.
Section 52 specifically provides:
“A partner’s interest in the partnership is his share of the profits and surplus and the same is personal property.”
Under Section 98, Chapter 640, Laws of 1922, --the rights of a general. partner in a limited partnership, which was the interest of the decedent here when he died, are identical with those of a general partner in a general partnership. And-in regard to a limited partner’s interest, Section 107 of the law specifically provides:
“A limited partner’s interest in the partnership is рersonal property.”
It is very plain, therefore, that the interest of the decedent in the partnership of William Openhym & Sons was simply a right to share in what would remain of the partnership assets after its liabilities were satisfied. It was merely an interest in the surplus, a chose in action. It is an intangible and carries with it a right to an accounting.
There were among the holdings and property of the partnership, buildings and land. Although these statutes were passed after the decision in
Darrow
v.
Calkins,
“ It is, however, generally conceded that the question whether partnership real estate shall be deemed absolutely converted into personalty for all purposes, or only converted pro
tanto
for the purpose of partnership equities, may be controlled by the express or implied agreement of the partners themselves, and that where by such agreement it appears that it was the intention of the partners that the lands should be treated and administered
It thus clearly appears that both under the partnership agreement and-under the laws of the State of New York the interest of the partner was the right to receive a sum of money equal to his share of the net value of the partnership after a settlement, and this right to his share is a debt owing to him, a chose in action, and an intangible. We concur with the Supreme Court of Errors that as such it was subject to the transfer tax of Connecticut.
We cоme then to the second question, whether bonds of the United- States and certificates of indebtedness of the United States deposited in a safe deposit box in New York City, and never removed from there, owned by the
The argument is that such bonds, payable to bearer and transferable from hand to hand, have lost.their character as choses in action and have taken on the qualities of physical property, and cases are cited to indicate that they can be madе the subject of execution and constitute a basis for the jurisdiction of the courts and of taxing officers of the State in which the paper upon which the evidence of the debt or obligation is written, is found, although their owner lives and dies in another State.
The Supreme Court of Errors takes this view, citing
Frick
v.
Pennsylvania,
and holds that the transfer of the United States bonds and certificates is taxable in New York where they are, and only there. The Court cites, as sustaining its conclusion that the transfer of the bonds is only taxable in New York, the case of
State Tax on Foreign-Held
Bonds, 15 Wall, 300. This lease is often cited to the point that Mr. Justice Field takes as indisputable (on page 319) that a State may not tax property that is not within its jurisdiction — a matter recognized in
Frick
v.
Pennsylvania,
The question here is whether bonds, unlike other choses in action, may have a
situs
different from the owner’s domicil such as will render their transfer taxable in the State of that
situs
and in only that State. We think bonds are not thus distinguishable from other choses in action. It is not enough to show that the written or printed evidence.of ownership may, by the lаw of the State in which they are physically present, be permitted to be taken in execution or dealt with as reaching that of which they are evidence, even without the presence of the owner. While bonds often are so treated, they are nevertheless in their essence only evidences of debt. The Supreme Court of Errors expressly admits that they are choses in action. Whatever incidental qualities may be added by usage of business or by statutory provision, this characteristic remains and shows itself by the fact that
The case of
Kirtland
v.
Hotchkiss,
“ The question does not seem to us to be very difficult of solution. The creditor, it is conceded, is a permanent resident within the jurisdiction of the State imposing the tax. The debt is property in his hands constituting a portion of his wealth, from which he is under the highest obligation, in common with his fellow-citizens of the samе State, to contribute for the support of the government whose protection he enjoys.
“
That debt, although a species of intangible property, may, for purposes of taxation, if not for all others, be regarded as situated at the domicile of the creditor. It is none the less property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only the evidence of the debt,- and if destroyed, the debt — the right to demand payment of the money loaned, with the stipulated interest — remains. Nor is the debt, for the purposes оf taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. The mortgage is but a security for the debt, and, as held in
State Tax on Foreign-held Bonds (supra),
the right of the creditor ' to proceed against the property mortgaged, upon a given contingency, to enforce by its sale the payment of his demand, . . . has no locality independent of the party in whom it resides. It may undoubtedly be taxed by the State when held by a resident therein/ &c. Cooley on Taxation, 15, 63, 134, 270. The debt, then, having its
situs
at the. creditor’s
The line which was drawn in the case of
Frick v. Pennsylvania, supra,
was one which was adopted from the decision of this Court in
Union Refrigerator Transit Company
v.
Kentucky,
“ In this class of cases the tendency of modern authorities is to apply the maxim mobilia sequuntur personam, and to hold that the property may be taxed at the domicil of the owner as the real situs of the debt, and also, more particularly in the casе of mortgages, in the State where the property is retained.”
The Court again said, p. 206:
“ The arguments iii favor of the taxation of intangible property at the domicil of the owner have no application to tangible property. The fact that such property is visible, easily found and difficult to conceal, and the tax readily collectible, is so cogent an argument for its taxation at its
situs,
that of late there is a general 'consensus of opinion that it is taxable in the State where it is permanently located and employed and where it receives its entire protection, irrespеctive of the domicil of the owner. We have, ourselves, held in a number of cases that such property permanently located in a State other than that of its owner is taxable there.
Brown
v.
Houston,
The Court continued, p. 206:
“There are doubtless eases in the state reports announcing the principle that the ancient maxim of mobilia sequuntur personam still applies to personal property, and that it may be taxed at the domicil of the owner, but upon examination they all or nearly all relate to intangible property, such as stocks, bonds, notes and other choses in action. We are cited to none applying this rule to tangible property, and after a careful examination have not been able to find any wherein the question is squarely presented. ...”
The discussion in the Union Refrigerator case shows what this Court meant in the Prick case in holding that personal property in the form of paintings and furniture having an actual situs in one State could not be subjected to a transfer tax in another State, and emphasizes the inference that it did not apply to anything having as its essence an indebtedness or a chose in action and could not apply to property in the form of specialties or bonds or other written evidences of indebtedness whethеr governmental or otherwise, even though they passed from hand to hand. The analogy between furniture and bonds cannot be complete because bonds are representative only and are not the thing represented. They are at most choses in action and intangibles.
We think therefore that the Supreme Court of Errors in extending the rule of the
Frick
case from tangible personal property, like paintings, furniture or cattle, to bonds, is not warranted, and to that extent wé must reverse its conclusion in denying to Connecticut the right to tax the transfer of the bonds and Treasury certificаtes.
Among the other items is a savings bank account in New York which is certainly a chose in action and was properly treated as subject to the same rule. So, too, a life insurance policy payable to the estate was also of that character.
There was a small amount of cash, $287.48, in bank notes and coin in a safe deposit box in New York which the Supreme Court of Errors held not taxable in Connecticut. As to this, the contention on behalf of Connecticut is that it should be treated as attached to the person of the owner and subject to a transfer tax at thedomicil. It is argued that it was not like coin or treasure in bulk, but like loose change, so to speak. To money of this amount usually and easily carried on the person, it is said that the doctrine of mobilia sequuntur personam has peculiar application in the historical derivation of the maxim. But we think that money, so definitely fixed and separated in its actuаl situs from the person of the owner as this was, is tangible property and can not be distinguished from the paintings and furniture held in the Frick case to be taxable only in the jurisdiction where they were.
The results thus stated lead to our reversing the judgment of the Superior Court of Connecticut, in respect to the tax on the transfer of the bonds and certificates of indebtedness of the United States, and to our affirming the judgment in other respects.
It is further contended by the executors that the proceedings in the Connecticut court and the judgment therein fail to give full faith and credit to the public acts, records and proceedings of the State of New York, and that this is in violation of the Constitution of the
Affirmed, in part and reversed in part.