
    In the Matter of the Application of Israel A. Haight, as Supervisor of the Town of New Castle, for an Order Directing the Payment of a Tax, and for Judgment against J. Wesley Barnes and Richard P. Barnes, as Administrators of the Estate of David W. Barnes, Deceased. J. Wesley Barnes, as Surviving Administrator of the Estate of David W. Barnes, Deceased, Appellant; Israel A. Haight, as Supervisor of the Town of New Castle, Respondent.
    
      Tax — assessment against two administrator's who have transferred, the control of the estate to a third administrator— a depositor in a savings hank is not exempt ■ from taxation on Ms deposit.
    
    'An assessment for taxation against two administrators of a decedent, made to the extent of two-thirds of his personal property by the assessors of the town in which they resided and in which the decedent resided at the time of his death, is proper, notwithstanding the fact that such• administrators have, .“for the sake of convenience and expediency, and to relieve themselves from the cares of management,” agreed with a third administrator, living in another town that the latter “should have sole control.and possession of the assets and estate” of said decedent, and that said third administrator actually took and assumed the sole control and possession of the property.
    A depositor of money in .a savings bank in the State of New York is not exempt from taxation thereon by subdivision 14 of section 4 of the Tax Law (Chap. 908, Laws of 1896).
    Appeal by J. Wesley Barnes, as surviving administrator of the estate of David W. Barnes, deceased, from an order of the Supreme Court, made at the Westchester Special Term and entered’ in the office of the clerk of the county of Westchester on the 21st day of . May, 1898, upon an application, made under section 16 of chapter 610 of the Laws of 1814, by the supervisor of the town of Hew Oastle, to enforce the payment of a tax upon personal property of the estate of the decedent," assessed upon the assessment roll of the town for 1896.
    
      Henry G. Griffin, for the appellant.
    
      A. J. Adams, for the respondent.
   Woodward, J.:

David W. Barnes, of the town of Hew Castle, died seized of a considerable estate, and left him surviving three brothers, next of kin, who e§ch qualified as administrators of 1ns estate. Two of these brothers, Richard Barnes, who is now deceased, and Wesley Barnes, resided in the town of New Castle, and Noah T. Barnes, since deceased, resided in the town of Ossining. In 1896, the assessors of the town of New Castle assessed two-thirds of the personal property of. said estate to J. Wesley Barnes and Richard Barnes as administrator’s, as provided by section 8 of the Tax Law (Chap. 908, Laws of 1896). On the day set apart for the review of the assessment rolls of the town of New Castle, J. Wesley Barnes appeared before the assessors and made an affidavit, in which he stated that the personal estate of said David W. Barnes consisted entirely of moneys on deposit in various savings banks in the State of New York, except household furniture, farming utensils and stock; that such personal estate of the said David W. Barnes was all appraised, and an inventory made and filed in the office of the surrogate of the county of Westchester, on the 23d day of March, 1896, and, as appears from such inventory, the amount of personal estate of the said David W. Barnes, other than moneys on deposit in savings banks, amounted to twelve hundred and forty-seven 80/100 dollars ; that the administrators, on the 16th day of May, 1896, paid to the county treasurer of the county of Westchester the sum of ■ eight hundred and twenty-five dollars and eighty cents, tax appraised and assessed against said estate of David W. Barnes by the surrogate of the county of Westchester, and an appraiser duly appointed under chapter 399 of the Laws of 18.92, and, as this deponent is informed and believes, the personal estate of the said David W. Barnes, consisting of money on deposit in savings banks, is not subject to assessment of taxation by the assessors of the town of New Castle; that the debts of the said David W. Barnes and the expenses of settling the estate will exceed the sum of twelve hundred and forty-seven dollars and eighty cents, the amount of the personal estate of the said David W. Barnes, other than the moneys on deposit in savings banks.

And deponent further says that a large part of the personal estate left by the said David W. Barnes was distributed among and paid over to the various parties entitled thereto on the eighth day of July, 1896, and that the remainder of the said personal estate is on deposit in savings banks in the State of Hew York, and, as deponent is.informed and advised by counsel, the administrators of David W. Barnes have no personal estate of the said David W. Barnes in their hands subject tobe assessed or taxed by the assessors or authorities of the town of Hew Oastle.”

The assessors, notwithstanding this affidavit, continued the assessment as originally made, and, on the administrators refusing to pay ■the tax, the supervisor of the town of Hew Oastle brings this proceeding to compel the payment of the tax. This court, at Special Term, after hearing argument, made an order directing the administrators to pay the tax which had been-levied and assessed against thém in their representative capacity, and from this order an appeal comes to this court'.

It is now urged, in addition to the claim made before the board of assessors of the town of' Hew Oastle, that the moneys on deposit in savings banks were exempt from taxation ; that, “ for the sake of convenience and expediency, and to relieve themselves from the cares of management, deponent (J. Wesley Barnes) and Richard P. Barnes, agreed with Noah T. Barnes that said Noah T. Barnes should have sole control and possession of the assets and estate of said David W. Barnes, and should take the. sole management of the estate property, deponent and Richard P. Barnes thereby ceasing to have any control or possession of the estate property or to participate in any way, except to .give advice, in the settlement of said estate; that, in pursuance of said agreement and prior to the first day of July, 1896, said Hoah T. Barnes actually took' and assumed the sole control and possession of the property of' the said David W. Barnes, deceased, depositing. the funds in banks in the name of Hoah T. Barnes, drawing checks in the name of Nnoah T. Barnes, receiving moneys and paying indebtedness and transacting all the. business of the estate in his own name, and by said agreement managing and controlling the entire estate to the exclusion of deponent and Richard Barnes, who participated in no part qf the control, possession or management of said estate property.

“Dejmnent further'says that on the said 1st day of July, 1896, he did not hold, nor has he since held- or controlled, any personal property, as administrator aforesaid, of any kind or nature.” An affidavit in the same language is made by Richard P. Barnes.

The language of the statute is that “ every person shall be taxed in the tax district • where he resides, when the assessment for taxation is made, for all personal property owned by him or under his control as agent, trustee, guardian, executor or administrator,” and “ where taxable personal property is in the possession or under the control of two or more agents, trustees, guardians, executors or administrators residing in different tax districts, each shall be taxed for an equal portion of the value of such property so held by them.” (§ 8, chap. 908, Laws of 1896.) The learned trial court say: “ In this case the defendants had control of the personal estate of their intestate within the meaning of the statute,” and in" this the court is entirely correct. The mere fact that one of the administrators, under an agreement, was permitted to transact the business of the estate, does not take it out of the control of the administrators; they were as much in control under the agreement as though they had in fact participated. The very fact that they made an agreement is evidence that the property of the estate was within their control, and it did not pass beyond this control so long as the property was administered within the limits of the contract or agreement between the administrators, no matter who may have had the personal possession of the property of the estate.

“ It must be regarded as a fair conclusion,” say the court in the "case of People ex rel. Campbell v. Commissioners of Taxes (38 Hun, 536), “ from the application of the relators, that the absent executors-failed only to have actual possession of the personal estate and that during their absence. There is no evidence of any transfer of it to any other place except what may he inferred from the circumstance that the foreign executor took possession. But this was a possession for the use of. the estate and its beneficiaries and in no sense deprived the other executors of that legal custody and possession resulting from their relation to it as executors and trustees. As said in Murray v. Blatchford (1 Wend, 616) by Chief Justice Savage : If a man appoints several executors they are esteemed in law but as one person representing the testator, and, therefore, the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release, of the testator’s goods, are deemed the acts of all, for they have a joint and entire authority.’

“It is contended, also, and. the contention is justifiable, that ‘ where the administration of the trust is vested in co-trustees, they all form, as it were, hut one collective trustee, and, therefore, must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee, but the court knows no such distinction j all who accept the office are, in the eye of the law, acting trustees.’ (Lewin on Trusts [7th ed.], 236, and cases cited; see, also, Ridgeley v. Johnson 11 Barb. 527 ; Thatcher v. Oandee, 33 How. Pr. 145; Brinckevhojf v. Wemple, 1 Wend. 470.)

In addition to this it must be said that the legal presumption is that the personal property of a decedent, during the settlement of the estate, is at the place where the decedent lived,- unless the contrary affirmatively appears. (Burrough on Taxation, p. 224; Desty on Taxation, § 68, p. 332.) Indeed, it is a natural presumption as well.”

That was a case in which two of the executors resided in this State, while the third was a resident of the State of Ohio. The two executors in this State, through ill-health or a pressure of business, were obliged to leave the State, leaving the property in the control of the foreign executor. In' the case at bar there was no relinquishment of the office of administrator •—no refusal to act — but a joint agreement under which one of the administrators undertook to discharge the duties of all of them, keeping the property within the' joint control of the three by means of an agreement bétween themselves, as to the manner in which the-estate should be managed.

In the case of. People ex rel. Caswell v. Commissioner of Taxes (17 Hun, 293) it appeared that the testator lived and died in Westchester county, and that his Will was admitted to probate there; that the personal property was located there; that four, of the executors resided in that county, and that the property was in their physical possession. The effort on the part of the tax commissioners of the city of Hew York to tax this personal estate in the hands of one of the executors who exercised no- active control over the property, was defeated. In the case at bar the assessors of the town in which the deceased lived and died have sought to levy a tax upon the proportion of the .estate represented by the local administrators, and .the facts do not warrant this court in deciding that the personal estate of the deceased was not within their control within the fair meaning of the statute.

This brings us to the consideration of the question whether the original representations of the appellant to the board of assessors of the town of Hew Castle were such as entitled him and his brother to have the assessment dropped from the rolls. It was contended that the personal estate of the deceased, being deposited in savings banks, was exempt from taxation, and this point is still urged upon the consideration of this court. We are unable to agree with this proposition. Section 3 of chapter 908 of the Laws of 1896 provides that “All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law.” Subdivision 14 of section 4, which deals with exceptions, says : “ The deposits in any bank for savings which are dtie depositors, the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now liable for taxation, and the accumulations of any incorporated co-operative loan association upon the shares of such association held by any person.”

Does this constitute an exemjfiion of the funds of individuals deposited in a savings bank ? If it does, then all that is necessary to escape taxation of money as jjersonal property is to deposit it in •a savings bank during the time that tíre assessors are at work, and when they have finished, withdraw it. Clearly this was never contemplated by the Legislature. The policy of the law is to reach and tax as much personal projrerty as possible, not to afford convenient hiding places for it during the time that the assessors are abroad, •and, in order that each community may have the benefits of the taxation arising from the personal property (including money) owned or controlled by the peojrle residing in the several tax districts, the aggregate dejDosits in savings banks which are due depositors, are ■exempted from taxation in the tax district in which such savings banks are located, and it is thus left to bear that portion of taxation which the local assessors may deem just and equitable as between the various members of the tax district.

“ There is,” say the court in the case of People ex rel. Savings Bank of New London v. Coleman (135 N. Y. 236), “ no language indicating that it was meant to exempt the depositors from taxation upon their deposits. If, as claimed by the relator, the banks are exempted from taxation under the Revised Statutes, and as claimed by others, the depositors are exempted from taxation on their .deposits under this section, then an increasing amount of personal property in this State, now amounting to more than $600,000,000,- will entirely escape taxation. There is certainly no public policy which dictates the entire exemption of this enormous amount of property, and the intention'to exempt it before the exemption can be allowed should be found plainly expressed in some statute, and we do not find it. The depositors are taxable upon their deposits as they are upon other personal property, and the banks are exempt to the extent specified in the section.” It is true, of course, that Judge Finch alone concurred in the opinion of Chief Judge Earl, the remaining judges concurring in the result on the ground that the shares of stock assessed were part of the bank’s surplus, and they expressed “ no opinion as to the taxation of depositors on account of' their deposits in savings banks.” But in the more recent case of People ex rel. Groton Savings Bank v. Barker (154 N. Y. 122), Judge O’Bbien, delivering the opinion of the court, says (at p. 125): By the fourth . section of chapter 456 of the Laws of 1857, ' the deposits in any bank for savings which are due to depositors, and the accumulations in any life insurance company organized under the laws of this State, so far as the said accumulations are held for the exclusive benefit of the assured, shall not be liable to taxation, other than the real estate and stocks which may be owned by such bank or company, and which are now liable.to taxation undér the laws of the State.’ Under this statute it was held in the ease referred to [People ex rel. Savings Bank of New London v. Coleman, supra] that the deposits in savings banks were exempt from taxation against the bank.” This being conceded, the reasoning of Chief Judge Earl, concurred in by Judge Finch, in the Goleman case becomes unanswerable, and while the question was not before the court for decision, it may be accepted with all of the deference due to the court from which it proceeds, and the incidental remark of Judge O’Brien in the Groton Savings Bank Case (supra), that the so-called surplus is, therefore, within the equity of the statute, exempting depositors of sav: ingsbanks from taxation” (the remark being made in reference toa Connecticut statute), cannot be accepted .as in any degree -indicating that the Court of Appeals is in conflict with the dictum in the Coleman case.

In 'the case at bar there is no question of the amount of property involved. It is practically conceded that the deceased left an estate, the personal property of which was equal to the amount assessed against it by the assessors of the township in which deceased lived at the time of his death, and in which two of Ms administrators still reside.

We are of opinion that the assessors acted within the scope of their powers, and that the judgment of the court below, sustaining the action of the assessors of the town of New Castle, and directing judgment against the administrators, should be affirmed, with costs.

All concurred, except Bartlett, J., absent.

Order affirmed, with ten dollars costs and disbursements.  