
    New York County.
    Hon. RASTUS S. RANSOM, Surrogate.
    January, 1890.
    Matter of Clark.
    
      In the matter of the estate of D. Lawrence Clark, deceased.
    
    Under the collateral inheritance tax act as amended in 1887 (Laws 1887, Ch. 713, § 1), money on deposit in this state and a bond secured by a mortgage on property here belonging to a non-resident decedent, is subject to the tax.
    Proceedings for the collection of the collateral inneritance tax on certain property belonging to D. Lawrence Clark, deceased.
    The facts appear in the opinion.
    John MacDonald, for William I. Clark, executor.
    
    Benj. E. Dos Fassos, Assistant District Attorney, for the comptroller.
    
   The Surrogate.

Decedent was a non-resident of this state, but left both real and personal property herein.

Counsel for the executor claims that the personal property, consisting of two bank accounts and a bond secured by mortgage on real estate within this county, is exempt because personal property follows the situs of the owner, and this personal property is intangible here.

Section 1 of chapter 713, Laws of 1887, reads as follows: “ After the passage of this act all property which shall pass by will.....or if such decedent was not a resident of this state at the time of death, which property or any part thereof shall be within this state.....shall be and is subject to a tax of five dollars on every hundred dollars.”

In the Matter of Enston, 113 N. Y. 174, the Court of Appeals, while holding that under the act of 1885, the property of a non-resident decedent was not subject to this tax, says: “By chapter 713 of the Laws of 1887, section 1 of the act of 1885 was so amended .as to subject to its operation the property within this state of a non-resident decedent.....”

In a recent case, State v. Dalrymple, 70 Md. 594, this question is discussed fully.

The Maryland statute says: “ All estates, real, personal and mixed, money, public or private securities for money of every kind, passing from any person who may die seized and possessed thereof, being in this state.....” and the Court of Appeals held that “ being in this state ” refers to the actual situation of the property and not to the constructive situation. The fact that the decedent was a non-resident did not affect the question.

Judge McSherry, in delivering the opinion of the court, says: The tax, we have said, is on the transmission of the property c being in the state,’ and no reason has been assigned or can be suggested why the broad language of statute and the evident design of the legislature should be so narrowed and restricted as to exempt from this tax the property of a nonresident actually here, notwithstanding that same property may, for other purposes, be treated as constructively elsewhere. If we adopt the view insisted on by the appellees, it would result in a discrimination in favor of the non-resident, and against our own citizens—a discrimination, too, which the legislature certainly never intended to make, and for which no warrant whatever can be found in the plain letter of the statute. In permitting property within the state, upon the death of its owner, to pass by devise, or descent, or distribution, the legislature has seen fit, where strangers or collateral kindred receive it, to exact as the condition upon which that privilege is granted, the tax in question. The imposition and collection of the tax cannot, therefore, depend upon the mere accidental residence of the owner.”

In the case of San Francisco v. Mackey, 22 Fed. Rep. 601, cited by counsel for the executor, Judge Swathe held “ that shares of stock in a corporation are intangible property, the situs of which follows that of the owner, and are tangible where the owner is tangible.” Such shares of stock are simply evidences of indebtedness not by any person or corporation within the commonwealth, and such a case is easily distinguishable from the case at bar.

In this case the personal property consists of money on deposit, and a bond secured by a mortgage on property here, and in any question arising out of these deposits or this bond, the aid of the courts of this state must be invoked. This property has enjoyed the protection afforded by the laws of this state, and must pay, as the condition upon which the privilege of allowing it to pass is granted, the tax imposed by the law.

Submit order confirming the report of the appraiser and assessing and fixing the tax.  