95 A. 1043 | N.H. | 1915
It is in effect conceded by the plaintiffs that the property of the deceased represented by the stocks, bonds, and notes had been properly taxed to her, before her death, at her domicile in Charlestown. While the securities were in fact held on deposit in Minnesota and were not actually in this state, the property represented by them, or her proprietary right to have and enjoy the beneficial use of them, inhered in the place of her domicile. For the purpose of taxation, her property right in such intangible property had its situs where she had her domicile, and not where the documentary evidence of it happened to be. This proposition is so well established that it is not open to serious disputation. Bullock v. Guilford,
The tax of which the plaintiffs complain was assessed April 1, 1913, after Miss Gilson's death, and was assessed against her estate. No administration had been granted in this state, and the tax was assessed under the statutory provision for the contingency that at the taxing time there was no representative of the estate. P. S., c. 56, s. 26; Kent v. Exeter,
Their argument appears to be, that on the day of the assessment of the tax they held the legal title to all of Miss Gilson's estate, and being non-residents, no tax could properly be assessed against the property that had been hers. They contend, citing Commonwealth v. Williams,
While by the English law an executor could do many, indeed most, acts pertaining to his office, except maintaining and defending suits, before proof of the will or obtaining letters testamentary (2 Bl. Com. *507), in most of the American states he has no such legitimate authority before probate. 2 Red. Wills 13. Not only is the executor here forbidden to intermeddle with the estate of the decedent until he has given bond to the judge, one condition of which must be the payment of legacy and succession taxes, but he is not to "be considered as having that trust" until after filing such bond. P. S., c. 188, ss. 12, 13, 14; Laws 1907, c. 86. In this case, not being residents the plaintiffs could not claim the appointment as of right and could not be appointed unless in the opinion of the court other circumstances rendered the appointment proper (P. S., c. 188, s. 4; Pickering v. Pendexter,
Miss Gilson, the testatrix, an inhabitant of Charlestown in this state, died at Charlestown on September 14, 1912. It was the duty of the executors named in the will to cause her will to be proved in the probate court of Sullivan county within thirty days. P. S., c. 187, ss. 2, 3. For reasons or purposes not disclosed in the case, they disregarded the command of the statute, and the will was not proved in the court of her domicile until December 4, 1913, over a year later, the tax in dispute being assessed in the meantime. If the petitioners had complied with the law, and duly proved the will and secured their appointment as executors, they could then have raised the questions to what extent the law of the state does or can tax the intangibles of the estate of a deceased resident in the hands of non-resident executors. As the case stands, the only question is whether since the testatrix's death anything had occurred at the time of assessment to free from liability to taxation here her estate or any part of it admittedly taxable to her here while living.
Choses in action, after the decease of one of the parties, are incapable of any change until the intervention of a duly appointed personal representative. Abbott v. Coburn,
It is urged that "the securities and deposits in Minnesota in respect to which the tax was assessed were on April 1, 1913, in the actual possession and custody of the executors, under appointment as executors of the will in the courts of that state, and that they thus had title and all the other incidents of ownership." The claim is very skillfully drawn. Nowhere in the briefs is the claim distinctly made that this grant of administration gave the plaintiffs title to the property evidenced by the papers preserved in a safety vault in that state. Lawful possession of these papers by the Minnesota custodians gave them in Miss Gilson's lifetime no title to the property represented. Mere lawful custody gave no more title to the plaintiffs. They had title as executors to such property and such only as was given by the decree of ancillary administration, which alone, upon the facts found and the pleadings before it, the Minnesota court had power to grant. It may be a fiction of the law which considers the domicile of the owner the situs for the taxation of intangible property, but it is a fiction supported by all the authorities. To hold the situs for taxation to be determined by the location of the evidences of title alone would be a bald assumption supported by no authority. It is elementary that "the primary probate jurisdiction of wills, and of everything pertaining to the settlement of estates, is exclusively in the place of the domicile of the deceased" (Leonard v. Putnam,
It has been said "that the administrator is the officer of the state court appointing him, and that property placed in his possession by order of that court is in the custody of the court" (Byers v. McAuley,
The only legislation so far found necessary appears to have been the enactment of the statute providing for the assessment of taxes in the interim between death and administration. Under this statute, the question may arise whether the legislature, in authorizing the taxation of the property of an estate to the heirs generally of a decedent, intended that a tax should be laid upon property of *46 the estate to which the legal title had been secured by the grant of administration to a living person by a court of competent jurisdiction. That question is not material, however, unless it appears that the tax complained of has been laid in part upon property of the estate to which the plaintiffs have secured such title.
It is found in the case that the probate in this state was original or domiciliary, from which it follows that the Minnesota jurisdiction is ancillary. The presence of assets gives jurisdiction for the grant of administration. It is immaterial in which jurisdiction the grant is first made; the original or domiciliary jurisdiction is that in which the deceased was domiciled at death. Knight v. Hollings,
By the domiciliary, probate title is given to all the personal estate wherever situate, so "in the absence of ancillary administration or statutory prohibition, the domiciliary administrator or executor has authority to take possession of and remove the goods or effects of the decedent in another jurisdiction, or to collect a debt due from debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. . . . So, too, he may sell and assign stock in a foreign corporation, and the corporation may voluntarily consent to its transfer by accepting the outstanding certificate and issuing a new one to the purchaser." Luce v. Railroad,
The ancillary representative, upon the grant of administration to him, becomes exclusively vested with the title to all the assets within the jurisdiction. But the title of the ancillary representative extends only to property of the decedent which is assets for the purpose of administration therein. Grayson v. Robertson,
If it be assumed, then, that the grant of ancillary administration conferred such title on the plaintiffs as to exclude the property from the operation of the tax law in this state, the material inquiry is: What of the property described in the petition was assets for administration in Minnesota? "The general rule of law is well settled, that for the purpose of founding administration all simple contract debts are assets at the domicile of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it, and therefore the debt is assets where the debtor lives, without regard to the place where the same is found or payable." Wyman v. Halstead,
No other grounds have been urged in support of the plaintiffs' claim. It does not appear that the tax has been assessed upon property to which the plaintiffs could claim title under any view of the law. "Stocks, bonds, and notes contained in a safety deposit vault" located in Minnesota are not necessarily assets for administration *48 in Minnesota. As no ground appears requiring an abatement as matter of law, the order must be,
Petition dismissed.
All concurred.