175 Mass. 59 | Mass. | 1899
At the time of his death the testator was domiciled at Salem, in this Commonwealth, and his estate, except ' certain real estate situated here and appraised at $2,100, 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, bonds 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 petitioners have taken possession of all the property except the real estate, and have 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 petitioners 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; Kirtland v. Hotchkiss, 100 U. S. 491; State Tax on Foreign-Held Bonds, 15 Wall. 300; Cooley, Taxation, (2d ed.) 371; and the liability would have extended to and included the bonds secured by mortgage. Kirtland v. Hotchkiss and State Tax on Foreign-Held Bonds, ubi supra. Hale v. County Commissioners, 137 Mass. 111. It is true that the Public Statutes provide that personal property wherever situated, whether within or without
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. In that case the testator’s domicil 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 domicil 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’s Death
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 át the time of the testator’s death. See In re Swift, 137 N. Y. 77; Miller’s estate, 182 Penn. St. 157.
The petitioners further contend 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 domicil 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. 128, 144, 145. Fay v. Haven, 3 Met. 109. Wilkins v. Ellett, 9 Wall. 740; S. C. 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. D. 394. Sill v. Worswick, 1 H. Bl. 665, 690. Dicey, Confl. of Laws, 683. Story, Confl. of Laws, (7th ed.) §§ 380, 481.
If there are movables in a foreign country, the law of the domicil is given an extraterritorial 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 domicil. Accordingly, it has been held that legacy and succession duties as such were payable at the place of domicil in respect to movable property wherever situated, because in such cases the succession or legacy took effect by virtue of the law of domicil. Wallace v. Attorney General, L. R. 1 Ch. 1. Dicey, Confl. of Laws, 785. Hanson’s Death Duties, 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 domicil. Laidlay v. Lord Advocate, 15 App. Cas. 468, 483. Hanson’s 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
But whatever the form of the tax, the succession takes place and is governed by the law of the domicil; 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 domicil. Dammert v. Osborn, 141 N. Y. 564. In further illustration of the extent to which the law of the domicil operates, it is to be noted that the domicil 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. Elett and Stevens v. Gaylord, ubi supra. Hutchins v. State Bank, 12 Met. 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 administrator. 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 Commonwealth. 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 petitioners insist that the maxim mobilia sequuntur personam is when applied to matters of taxation.
The petitioners contend that in Callahan v. Woodbridge 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 and Moody v. Shaw, ubi supra, rest on the right of a State to impose a tax or duty in
So ordered.