The opinion of the court was delivered, May 11th 1869, by
Sharswood, J.
By the Act of Assembly entitled “An Act relating to Collateral Inheritances,” passed April 7th 1826, Pamph. L. 227, “ all estates, real, personal and mixed, of every kind whatsoever, passing from any person who may die seised or possessed of such estate, being within this Commonwealth, either by will or under, the intestate laws thereof,” shall be subject to a certain tax, generally called the Collateral Inheritance Tax: and by the 3d section of the Act of March 11th 1850, entitled “ An Act relating to Collateral Inheritance Taxes,” Pamph. L. 170,-it is provided that the wfirds “ being within this Commonwealth,” in the 1st section of the Act of April 7th 1826, “shall be so construed as to relate to all persons, who have been at the time of their decease or now may be, domiciled within this Commonwealth as well as to estates; and this is declared to be the true intent and meaning of said act.”
In The Commonwealth v. Coleman’s Adm’rs., 2 P. F. Smith 468, it was decided that land in another state is not subject to this tax. It is evident that to determine the nature of the thing descending or devised, and thus ascertain whether it is within the rule thus established, we must consider what it was at the time of its passing from the person who died seised or possessed thereof, that is, in the case either of descent or devise at the time of his death. This is according to the express words of the Act of 1826, which in this respect, is in no way modified by the Act of 1850. Was then the subject from which the tax in this case is claimed, land in another state, at the time it passed from the testator Captain Drayton to his residuary devisees ? It was then unquestionably land, though subject to a power of. sale. Had one of the residuary devisees died,' it would have descended to his heirs at law, and- not vested in his executors. There was a *175mere authority to sell, not a positive direction. Had there been, it might have been contended that the land was converted into money, and passed as such; and that in that case even a subsequent election by those entitled to the proceeds to hold the subject as land would not have availed to exempt it. It follows logically from the premises that if it was land or real estate at the time it passed from the testator, its subsequent conversion under the power of sale did not change its status, so far as this question is concerned. We are tied down to this result by the very words of the act; nor is it repugnant to the reason and spirit of it. The title to the land in Minnesota passed directly under the will to the residuary devisees. It vested in them in fee. It cannot be pretended that if in the exercise of their proprietary right they had sold and the executors had released their power, that the proceeds in their hands, though brought into Pennsylvania, could be taxed under the law. Suppose the power of sale had been vested in a third person, not the executor. His receipt of the proceeds in this state would have been merely for the use of the residuary devisees : it would have been their money. Certainly the same result would have followed had the power been given to the executors nomination. It can make no difference that the executors as such are the donees of the power. It is after all a mere designatio personarum. The fund produced did not necessarily enter into the administration account. That the conversion did not relate back to the testator’s death is shown by the well-settled rule that the interest, right of possession and perception of rents and profits was in the devisees in the intermediate time: Lessee of Lindenberger v. Matlack, 4 Wash. C. C. 278" court="None" date_filed="1822-04-15" href="https://app.midpage.ai/document/lindenberger-v-matlack-9299258?utm_source=webapp" opinion_id="9299258">4 Wash. C. C. Rep. 278; Boshart v. Evans, 5 Whart. 551" court="Pa." date_filed="1840-05-02" href="https://app.midpage.ai/document/boshart-v-evans-6314177?utm_source=webapp" opinion_id="6314177">5 Whart. 551; Nagle’s Appeal, 1 Harris 260. Had the law of Minnesota so provided, it would have been liable to a collateral inheritance tax in that state. The executors could be compelled to prove the will, and take out letters testamentary there; and there also to have settled their account of the proceeds of sale. The land, and of course its proceeds when sold, were under the jurisdiction of that state. Immobilia statutis loci regantur ubi sita. Had the proceeds been distributed there as they might have been, it could not be thought that the law of Minnesota would have admitted the power of Pennsylvania to levy a tax upon it. If the distribution had been made there, to what fund could the executors look here for the tax ? We must consider the case as if this Minnesota land had been all the estate the testator had; and as if it had been sold under the power and the proceeds distributed abroad. Surely, the bringing them into this state and depositing them in the bank account of the executor along with other funds of the estate, can make no difference. The amount is certain, and they needed no ear-mark to distinguish them from the other moneys of the testator. Hood’s Estate, *1769 Harris 106, shows clearly that if the property is not liable to the tax at the death of the testator wherever it is, the bringing it into this state does not make it so. The personal estate left by Captain Drayton was ample to pay all the pecuniary legacies contained in his will. It is unnecessary to decide whether the case would have been altered if the real estate had been required for this purpose. The fact is, that the collateral inheritance tax has been paid on the entire personalty: on all the pecuniary legacies and on so much of the residuary legacy as consisted of personalty. We think that the part of the residuum consisting of the proceeds of the real estate in Minnesota was not subject to the tax.
Decree reversed — second exception to the auditor’s report sustained, and record remitted that the account as stated by the auditor may be corrected accordingly.
Thompson, C. J., dissented, and filed a dissenting opinion.