
    (37 Misc. Rep. 236.)
    In re PRESTON’S ESTATE.
    (Surrogate’s Court, Kings County.
    February, 1902.)
    Transfer Tax—Property of Nonresident.
    Mortgage bonds securing real estate in New York, kept by the owner, a resident of New Jersey, at her residence until her death, are .not subject to the transfer tax.
    In the matter of the appraisal of the estate of Mary Preston, deceased. Assessment vacated.
    Edward H. Fallows, for state comptroller.
    Joseph J. Hood, for executors and residuary legatees.
   CHURCH, S.

The decedent, a resident of New Jersey, owned certain bonds secured .by mortgages on real property in Kings county, which she kept at her residence. The appraiser has held these bonds all subject to the transfer tax. In Re Bronson, 150 N. Y. 1, 44 N. E. 707, 34 L. R. A. 238, 55 Am. St. Rep. 632, it was held that bonds of domestic corporations, owned and kept by a nonresident, were not the subject of the tax, the court saying (page 8, 150 N. Y., page 708, 44 N. E., 34 L. R. A. 238, 55 Am. St. Rep. 632):

“The legal situs of the indebtedness was at the creditor’s domicile and, as the actual situs of the bonds themselves was also there, upon no theory can it be held that the provisions of the transfer tax act could reach them in its operation.”

If this is so as to the bonds of a corporation, which presumably were secured by the usual corporation mortgage, then I see no reason why it should not also apply in the case of the bond of an individual. The counsel-for the state comptroller, however, insists that such a distinction should be made, and that the court of appeals has recognized this distinction by its decision in Re Romaine, 127 N. Y. 80, 27 N. E. 759, 12 L. R. A. 401. In that case the property of the nonresident decedent was kept in a safe deposit box in New York state. Among such property was a bond and mortgage on real estate in New York City. The court held that such property was subject to the tax, but seemed to base its decision upon the fact that this was property “within the state,” on account of its deposit in such safe deposit box, and no attempt was made to differentiate between the bond and mortgage and the other securities. Under these circumstances, I feel inclined to adopt the reasoning in Re Bronson, and am fortified in so doing by the decision of Judge Abbott in Re Moran, November 25, 1901, in which he held that bonds and mortgages on property in this state owned by a nonresident and kept by him without the state were not subject to the tax. An order may be submitted vacating the assessment, and remitting the matter to the appraiser.

Assessment vacated, and matter remitted to appraiser.  