delivered the opinion of the court.
The relator sued out of the Circuit Court of ,St. Louis county a writ of certiorari directed to the County Court, for the purpose of reviewing their action in assessing taxes upon property belonging to the estate represented by him. The proceedings were reviewed and the assessment set aside, whereupon the defendant appeals.
Counsel for appellant first contends that the writ will not lie to an action of this kind. The County Court of eаch county is directed (Wagn. Stat. 1174, § 51) to hear and determine allegations of erroneous assessment or mistakes in favor of those who have failed to go before the board of appeals, and the aсtion of the court in the matter is clearly judicial in its character, and has always been so considered. This writ will therefore lie to review its action. (Marion County v. Phillips,
The plaintiff showed to the County Court that the deceased was, at his death, a resident of Illinois; that he owned bonds due by the Masonic Hall Association of St. Louis, which were listed and taxed at his domicile in Illinois; that ancillary administration was taken out in St. Louis upon so much of the estate as is embraced in these bonds, and that the bonds were transferred to the possession of the St. Louis administrator for the purpose only of ancillary administration; yet the court held that these bonds, being actually in the hands of the St. Louis administrator, as belonging to the Missouri estate, were subject to taxation in St. Louis. The correctness of this decision is the only question for consideration.
Our statute makes no special mentiоn of this description of property, but provides (Wagn. Stat. 1159, ch. 11, § 1) that taxes shall be levied ££ on all property, real and personal, except,” etc. Sections 7 and 8 exempt certain classes of notеs
It is evident they should not be assessed in both States, though an erroneous assessment in one State will not exempt them from a correct one in the other. We have no statute specially subjecting to taxatiоn the bonds of our corporations wherever owned, and if they are liable at all, it is because they are here protected by our laws, and subject to the jurisdiction of our courts.
That the situs of personal proрerty is the domicile of its owner, is a fiction, though color is given to its truth by the law in relation to the distribution of personal estates. If a citizen and resident of St. Louis own a farm in Illinois, no one pretends that the farm has any differеnt location than if the owner lived upon it. But how with the cattle in its fields and stables, and the corn in its granaries ? On what principle can they be said to belong to Missouri, so long as they are upon the farm? There is this difference: they can be removed to Missouri, while the farm can not; but, until removed, their situs is the farm ; they help to swell the wealth of the locality; they are protected by its laws, and should be subject to its burdens. The same rule should be applied to bonds and notes, though from the different nature of the property their actual situs may be more doubtful. But, if it be established, although not the residence of their owner, the same result should follow as to them. Thus, if money bе left by a non-resident in the hands of an agent for investment and loan, the money itself, the instruments taken for it, and the various forms which it assumes, so long as they remain in the hands of such agent, are local property, and upon every principle should be subject to the public burdens imposed upon other local property of the same kind. What difference does it make in the benefits derived by the owner from the protection afforded this property by the administration of the law, whether he live
This view has been recognized by all the courts, but I will refer to only a few cases. In Catlin v. Hall,
The only question, thеn, to be determined is whether the bonds belonging to the relator as administrator are so located in Missouri as to be taxable here, or Avhether they should be assessed at the residence of deceased. Thе fact that they have been once
In regard to the law governing the disposition of the property of a deceased person, our statute provides (Wagn. Stat. 115, ch. 125, § 24) that real estate shall descend according to the laws of its situs, and that personal property shall be distributed according to the laws of the domicile of docеndent — thus embodying the existing law rather than declaring a new rule. This provision, it is claimed, should govern the location of the personal property of the estate for the purpose of taxation. If so, the rule shоuld apply to all kinds of personal property, so that cattle, horses, steamboats, and buildings upon leased ground that may never have been within the jurisdiction of the State containing the domicile of decendent, could be alone taxed at that place. But the law upon this subject has no application to the question under consideration. In fixing the rights of distributees of property whose situs is changeable, and may bе under one jurisdiction at one time and elsewhere at another, the law of some locality must be chosen, and it is very proper to govern its distribution by the law known to the deceased. But the principles governing thе question of taxation are, as we have seen, very different, and we are only required to ascertain the actual location of the property at the time of its assessment.
Administration of so much of the estate of a non-resident 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. Yet 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 has no right to inter-meddle. 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 evidеnce 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
Counsel for relator claims exemption of these bonds from local taxation because the law makes no special provision for taxing such securities, as is made by the Pennsylvania act under consideration in Maltby v. Reading & Col. R.R. Co., 52 Penn. St. 140, to which case we have been cited by appellant. In order to reach all the bonds of a corporation, if the policy were to assess them for taxаtion without reference to where they were held, a similar provision would be necessary. We have made such provision in relation to the stock of corporations, but leave bonds to be taxed like other property where they can be reached, except that if the owner resides within the State they shall be taxed in the county of his residence. (Gen. Stat. 1865, ch. 11, § 9 ; Wagn. Stat. 1161.)
The oath required of tax-payers by section 12, chapter 12, Gen. Stat. 1865 (Wagn. Stat. 1167), expressly requires the disclosure of property like that under consideration, “You do solemnly swear [or affirm] that you have given a true and correct list of all taxable property, including therein money, notes or bonds in hand or on deposit, owned by you, or under your charge or management,” etc. The fact that the property is held in trust creates no exemption, nor does it change its situs. We are referred to Stephens v. Mayor, etc.,
I am of opinion that that part of the estate of decedent in the hands of the Missouri administrator is properly subject to taxation in this State, and not elseAYhere, and that the judgment of the Circuit Court reversing the order of the County Court should be reversed.