Peter Thourot died testate at Jarbridge, state of Nevada, on Jannary 23, 1915. He was at that date, and for a number of years prior thereto had been, a resident of that state. At no time did he reside within the state of Utah. On April 2,1915, his will was admitted to probate in Salt Lake county, this state. E. B. Wicks was appointed executor. The will was executed in Salt Lake county on January 19, 1908, and had remained continuously in the possession of said Wicks in Salt Lake county from the date of its execution. Mr. Wicks was named as executor by the terms of the will, without bond. It appears that the testator left a small estate in Nevada, but there is nothing in the record to indicate that the will was ever admitted to probate in that state. The proceedings here, therefore, are not ancillary.
An inventory and appraisement was filed with the clerk of the district court of Salt Lake county on September 30, 1915, showing personal property belonging to the estate in the sum of $21,844.87, all of which property consisted either of money on deposit in a Salt Lake City bank in the name of the testator or of certificates of deposit issued by a Salt Lake City bank, ] except the sum of $1,200, which was evidenced by two notes secured by mortgages on real property in Salt Lake county. It also appears that the testator, in or about the year 1907, deposited certain moneys in the McCornick bank at Salt Lake City, to be loaned on real estate mortgages in Salt Lake county*’ and that the said moneys were so loaned for a number of years and mortgages taken in the name of the deceased. It also appears that the moneys so deposited were subject to check whenever Mr. Wicks desired to make a loan, and that the checks were signed, “Peter Thourot, by E. B. Wicks, Agent;” that Mr. Wicks would make the loans and take mortgage securities without communicating with the testator. It further appears that Thourot notified Wicks later to make no more loans, but, as rapidly as could be done, to collect in money already loaned and place the same in the bank in such form as to enable him (Thourot) to withdraw the money whenever he should require
After the executor has been appointed, the assessor of Salt Lake county assessed the property in the hands of the executor for city, county, and state taxes for the year 1915. Such taxes were not paid, and on March 22, 1916, during the administration of the estate, Salt Lake county filed its petition, asking for an order from the district court to direct the executor to pay the amount of taxes so assessed against the property of the estate. Upon ■ a hearing the court entered judgment dismissing the petition, and ordered the assessment made by the assessor of Salt Lake county to be set aside. From that order or judgment the county appeals.
The provisions of the statutes of Utah, so far as material, respecting the authority for assessing and collecting taxes, are as follows:
Comp. Laws 1907, section 2506: “All taxable property must be assessed at its full cash value.”
. Section 2515: “All taxable property must be assessed in the county, city, town, or district in which it is situated.”
Section 2505: “The term ‘property’ includes moneys, credits, bonds, stocks, franchises, and all other matters and things, real, personal and mixed, capable of private ownership. * * • ”
Section 2501: “All property in this state, not exempt under the laws of the United States, or under the constitution of this state, shall be taxed. # * *”
Section 2613: “The district court must require every
Section 2516: “The assessor must, before the first Monday of May of each year, ascertain the names of all taxable inhabitants, and all property in the county subject to taxation, except such as is required to be assessed, by the state board of equalization, and must assess such property to the person by whom it is owned or claimed, or in whose possession or control it was at 12 o’clock m. of the second day of January next preceding, and its value on that date.”
Section 2529: “The undistributed or unpartitioned property of deceased persons may be assessed to their heirs, guardians, executors, or administrators, or any * * * of them. * * # ’ ’
Section 2677: “No assessment or act relating to assessment or collection of taxes is illegal on account of informality or because the same was not completed within the time required by law. ’ ’
Section 2545: “Any property discovered by the assessor to have escaped assessment may be assessed at any time, and when so assessed shall be reported by the assessor to the auditor, and the auditor shall charge the county treasurer with the taxes on such property, and the treasurer shall give notice to the party assessed therewith.”
Respondent contends that under the facts stated (and there is no dispute as to the facts appearing in the record) the ■property belonging to the estate is not taxable in Salt Lake county; that the property consists of intangible assets, and has not, and cannot have, a situs, except the domicile of the owner, and therefore cannot be taxed in this state, but can only be taxed at the home of the testator in the state of Nevada. On the other hand, it is the contention-appellant that, under the facts stated, the property had acquired in this state what is designated by the authorities as a “business situs”; that it was located here; that it was under the control of a resident agent, and had been left here originally for the purpose of investment, and had been so invested by such agent, and that, notwithstanding
We do not feel called upon to determine whether, under the facts as shown by the record, the property belonging to the estate was subject to taxation under the laws of this state by reason of it having acquired such a “business situs” here as to authorize the taxing power of this state to levy and collect taxes against it, as in our judgment the conclusion of the district court must be reversed on other grounds.
As will be seen, if the property in question belonged to a resident of this state, under the provisions of our statutes it would be subject to taxation. The term “property,” as defined by the statute, includes not only money, but credits, etc. While the mortgages, under the Constitution of this state, would not be subject to .tax, the remaining part of the estate undoubtedly would be. But, as indicated, we do not express an opinion as to whether, under the facts, the property in question here was located in this state, so as to make it subject to taxation.
The executor was appointed on April 2, 1915. From that date on, and prior thereto during that entire year, the assets of the estate had been in his possession and under his control. The inventory of the estate filed on September 30th of that year shows that the assets were still in his possession. The property never was, in any sense, in the hands of a foreign administration. On the contrary, it specifically appears from the record that on October 1,1915, a partial decree of distribution was made, distributing the estate direct to the sole beneficiary undér the will of the deceased, who was then a resident of the state of New York.
“Administration of so much, of the estate of a nonresident as is found within our jurisdiction is ancillary, in that it becomes the duty of the administrator to transmit to the representative of the estate of the domicile any balance remaining after full administration. Tet, so far as local creditors and local distributees are concerned, the administration is complete. Until such balance be transmitted, the local administrator has full possession of all the property, and the foreign administrator had no right to intermeddle. In no sense can it be said to be in the possession of the foreign administrator, and it does not matter whether or not it may have been transmitted, or rather the evidence and representation of it, in the shape of bonds and notes, from such administrator to the local one. When transmitted for the purpose of administration, it becomes a local estate, it comes within the jurisdiction of the tribunals of the domicile of the local administrator, it seeks thei protection of its laws and the enforcing process of its courts, and until| the closing up of the local administration it can have no other situs.”
See Commonwealth v. Camden, 142 Ky. 365, 134 S. W. 914.
It is true that by fiction of law all intangible property is presumed to have its situs at the domicile of the owner, but that fiction must give way, under all the authorities, in the face of contrary facts. • The property in question in
The fact that this property was or was not assessed at the domicile of the testator is immaterial, as the right of the authorities of one state to tax property in its.jurisdiction subject to taxation cannot, and does not, depend
Some objection is made to the method of the assessment; that is, that the property was assessed to the estate of Peter Thourot and not to the executor or the beneficiary under the will. By Comp. Laws 1907, section 2613, it is made the duty of the district court to require the executor or administrator to pay all taxes due from the estate. By section 3956, it is provided that before any decree of distribution is
The judgment is reversed, with directions to the district