28 N.Y.S. 330 | N.Y. Sup. Ct. | 1894
Elizabeth Fogg, a resident of this state, died on the 3d day of January, 1891, leaving a last will and testament, which was admitted to probate on the 15th of April, 1891. By her will, she gave and devised all her residuary estate,—some of which consisted of real estate, but where situated does not appear,—equally, to Hiram Fogg, of Bangor, Me., and John A. Phipps, of Boston, Mass. In January, 1892, Phipps died at said Boston, leaving a will, which, on February 1, 1892, was duly admitted to probate in the county of Suffolk, Mass.,—the domicile of the decedent at the time of his death. An exemplified copy of the will was on the 20th October, 1892, filed and recorded in the office of the surrogate of the county of Hew York, by whom ancillary letters testamentary were duly issued. The executors of Elizabeth Fogg’s will took proceedings under , the collateral inheritance acts for a determination of the value of the property, passing by her will, subject to taxation, and the fixing of said tax. The proceedings resulted in an order fixing the amount of her estate subject to tax, including the legacy to Phipps, which was taxed at the rate of 5 per cent. The tax was paid by the executors to the comptroller of the city and county of Hew York. The legacy to Phipps was never paid to him, nor was it in a con
The question involved upon this appeal depends upon the construction to be given to section 1 of chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, as amended by chapter 215 of the Laws of 1891; the last-named statute being the one which was in operation at the time of the death of the testator, Phipps. The provisions of this act, as far as they are necessary to lie considered in the disposition of this appeal, are as follows.
“After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state; or, if the decedent was not a resident of this state at the time of his death, which property or any part thereof shall be within this state; * * * shall be and is subject to a tax at the rate hereinafter specified.”
The determination of the question as to whether any tax can be imposed, under the facts above stated, therefore, involves the inquiry whether the decedent had any property within this state at the time of his death. If he had, then, under the principle announced in Re Romaine, 127 N. Y. 86, 27 N. E. 759, it is liable. If he had not, then, clearly, there is nothing upon which the tax cari operate. In the consideration of this question, it will not be necessary to note the difference between the law as it was originally enacted, in 1885, and as it existed at the death of the testator,, but simply to determine the question as to whether a right to a legacy given by the will of a resident of this state .can be considered property located within this state. It seems to us that the mere statement of the proposition carries its answer with it, when we consider that the residence of a debtor does not fix the situs of the debt, but, rather, the domicile of the creditor. It is a familiar principle that the situs of personal property is, presumptively, the domicile of its owner, and its disposition is controlled by the laws of such domicile. But for certain purposes of taxation a different rule has obtained, because of statutes passed to prevent nonresidents having the protection of our laws for their property which is invested and kept within this state without contributing to the expense of such protection, and it is in the same line of legislation that the statute of 1891 has been passed; and, consequently, where a resident of another state dies the owner of personal property which he has habitually kept and invested in this state, it is liable to taxation, as has been adjudicated in the Case of Romaine,