
    In the Matter of the Assessment of a Transfer Tax on the Estate of John Dingman, Deceased, The Comptroller of the State of New York, Appellant; Gilbert N. Harding, as Administrator, etc., of John Dingman, Deceased, and Others, Respondents.
    
      Transfer tax—on property of a resident of the State of New York, administered in and distributed to a resident of another State— appeal by the Comptroller from a surrogate’s oi'der deciding that it was not taxable.
    
    Property owned by a person, who resided and died within the State of New York, located in a foreign State, administered upon in that State and distributed to a resident thereof, is subject to a transfer tax under section 220 of the Tax Law " (Laws of 189(5, chap. 908).
    The Comptroller of the State of New York may appeal from an order of a Sm> rogate’s Court determining that a part of a, decedent’s estate was not subject to a transfer tax..
    Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Oswego, entered' in said Surrogate’s Court on the 3d day of December, 1900, assessing the transfer tax upon the estate of John Dingman, deceased, and holding.and determining that the personal property in the State of Iowa which was a part of such estate and was paid to George W, Dingman, a brother of the deceased, in the State of Idwa, who at the time was a resident of said State, is not subject to a transfér tax.
    
      James R. Sommers, for the appellant.
    
      N. B. Smith, for the respondents.
   McLennan, J.:

•As far as it is necessary to state the facts are as follows: John Dingman, who was a resident of this State, died intestate on the 15th day of May, 1894, at the town of Boylston, Oswego county, H. Y. The deceased at the. time of his death had personal property in the State of Iowa, or which afterwards went into said State, and letters of administration were issued upon the estate of the deceased out of the District Court of Monona county,- Iowa, on the 29th day of May, 1894. The brother of the deceased, George W. Dingman, was a citizen of and resided in said State, and the administrator appointed by the Iowa court paid to him his distributive share of said estate, which amounted, after deducting expenses, to $1,264.71. Administrators of said estate were also appointed by the. Surrogate’s Court of Oswego county on the 11th day of July, 1894, but none of the property paid by the Iowa administrator to George W. Dingman, the brother of the deceased, ever came into the hands of such administrators.

The sole question presented by this appeal is whether or not the distributive share of the estate which was paid to George W. Dingman, the brother of the deceased, in the State of Iowa, was subject to a transfer tax of one percentum. The question is not whether the Hew York administrators are chargeable with or should be required to pay the tax upon such distributive share, or even whether or not the Comptroller will ever be able to recover the amount of the tax so assessed from George W. Dingman, the distributee. Certainly it could not be contended that such tax should be accounted for or paid by the Hew York administrators, unless funds belonging to the brother, George W. Dingman, came into their hands and out of which such tax could be paid. They could not be required to pay the tax personally, nor out of the distributive shares of any of the other heirs or next of kin. Those considerations. are immaterial and foreign to the real question presented by this appeal, to wit, whether or - not personal .property, which is in a foreign State but is owned by a person who is a resident of and dies within this State, is subject to the transfer tax imposed by statute, notwithstanding such personal property is administered upon and distributed .pursuant to the laws of such foreign iState, and delivered within such State to a resident thereof.

Section 220 of the Tax Law (Laws of 1896, chap. 908, as amcl. by Laws' of 1897, chap. 284) provides as follows: “ A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations .not exempt by law from taxation oil real or personal property, in the following cases: 1. When the transfer is by will or by the intestate laws of this state, from any person dying seized or possessed of the property, while a resident of the state. * * * ”

Section 221 provides that in case the property passes to a brother,' the tax shall be at the rate of one percentum.

We think, upon the facts disclosed, that the property in question was liable to such tax of one percentum. It cannot be that it was the intention of the Legislature to so frame the law that a person in contemplation of death may place his entire estate, if it consists of personal property, in a foreign State, where it may be distributed to his heirs or'next of kin residing in such State, and thus relieve such property from the payment of the transfer tax imposed by the statute.

It cannot, however, be useful to enter upon a discussion of the reasonableness or propriety of the rule contended for by the counsel for the Comptroller, as we deem the question settled in accordance with his contention by the decision of ,the Court of Appeals in Matter of Estate of Swift (137 N. Y. 77). In that case it was said by the learned judge who wrote the opinion for the court; “But as to the personal property of a resident decedent, wheresoever situated, whether within or without the state, they (the majority of the court) are of the opinion that it is subject to the tax imposed by the act.”

In Matter of James (144 N. Y. 10) the court said: “If the property consisted in personalty, its legal situs, although it in fact existed elsewhere than in the state, would follow the domicile of its owner, and thus, if he were a resident of the state, become subject to taxation there.”

The personal property in question, although in a foreign State, was subject to the tax imposed by the statute,, and the tax should have been assessed, even though it was paid to George W. Dingman, the brother of the deceased, in such foreign State, and was never brought within this State. Whether or not the tax, when so ¡assessed, can be collected is a question in no manner presented by this appeal.

An appeal from the order of the surrogate was proper. (Morgan v. Warner, 45 App. Div. 424.)

The Comptroller was not a party to the proceeding in which the order was made, and, therefore, had three months from the time of the entry thereof in which to take an appeal, as provided by section 2572 of the Code of Civil Procedure.

The order appealed from should bé modified by assessing the tax of one percentum upon the distributive share of the estate of John Dingman, deceased, which went to George W. Dingman, to wit, upon the sum of $1,269, and the surrogate is directed to so assess the same.

As so modified the order is affirmed, without costs to either party. All concurred.

Order modified, and as thus modified affirmed, without costs to either party.  