
    In the Matter of the Estate of Worthington Romaine, Dec’d.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Collateral inheritance tax—Non-resident decedent.
    The collateral inheritance tax act, as amended in 1887, applies to property within this state of a non-resident decedent and subjects it to a tax.
    Appeal from order of the surrogate assessing collateral inheritance tax.
    
      B. L. Bedfield, for appl’t; B. F. Dos Passos, for resp’t.
   Brady, J.

Romaine, the decedent, died intestate in Yirginia in 1888. He left no wife or children. His domicil was in Yirginia. He left property in this state which was claimed to be subject to taxation and upon which a tax was imposed and assessed. Part of the property consisted of bonds and stocks and was contained in a safe or deposit box and vault rented by the decedent from the Stuyvesant Safe Deposit Company in the city of New York.

The tax was imposed under chap. 483 of the Laws of 1885, as amended by chap. 713, of the act of 1887. The act of 1885, presenting the question herein to be discussed, is as follows :

“ After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state, or which property shall be within this state, etc.”

The alteration made by the act of 1887, to which reference has been made, was accomplished by the insertion of a clause after the words “while a resident of this state or ” as follows: “If such decedent was not a resident of this state at the time of his death.”

Under the act of 1885, which was considered in this department in the Matter of Tulane (who was a resident of the state of New Jersey), 51 Hun, 213; 21 N. Y. State Rep., 191. and which is a kindred case, it was determined that the property of the deceased was not subject to the tax provided for, inasmuch as it had neither passed by will nor by the intestate laws of this state, and had not been transferred by deed, grant, sale or gift, but had passed by the intestate laws of the state of New Jersey although situated in this state; a case not within the language nor the spirit of the statute. And it was subsequently held in the Matter of Enston, 113 N. Y., 174; 22 N. Y. State Rep., 569, that property within this state which passed by will or intestacy from a nonresident decedent to collateral relatives or strangers, was not taxable under the act of 1885; and it would seem prior to its amendment in 1887 that the act of 1885 applied only to property so passing from any person who may die seized or possessed of the same while being a resident of the state, and to property within the state owned by a resident and transferred inter vivas, to take effect after the death of the transferor. This decision was made by a divided court. Judge Finch concurred with Judge Danforth who wrote the dissenting opinion, and in which the learned dissenting judge insisted that the manifest purpose of the act of 1885 was that property within this state belonging to a decedent who was a non-resident at the time, should be taxed under its provisions; and it is said in the dissenting- opinion : “ It is conceded by the learned counsel for the appellant that the confusion thought to be apparent in the words of this act is cured by the amendatory act of 1887, already mentioned.” The learned judge then refers to the corresponding features contained in that statute, and particularly to the words, “ if such decedent was not a resident of this state at the time of death,” and says that they supply by explicit designation what was implied in the former act, and facilitate the interpretation of other clauses; although he thought them superfluous.

The learned surrogate in deciding this case regarded the foundation of the argument of the learned counsel for the administrator as a legal fiction, namely, that the property sought to be subjected to the tax attends the owner, and has its situs at his domicil, and expressed the view that the general rule as to the situs of personal property could not be disputed, but must give way in all cases where, as said by the court of Appeals In re Enston, supra, there is something in the policy of the statute or its language which shows a different legislative intent; and then suggests that the policy of the statute of this state imposing a succession tax upon property -which was within the state of a person resident or nonresident thereof, at the time of his death, seemed wholly opposed to this rule. And this view is regarded as unanswerable. In the concluding portion of the opinion of Andrews, J., in the Matter of Enston, supra, he declared that the Law of 1887 so amended the act of 1885 as to subject to its operation the property within this state of a non-resident decedent, and that the amendment furnished some evidence that prior thereto the proper construction of the section, according to the understanding of the legislature, did not include within its operation such property.

Whatever may have been the view entertained by the courts of the provisions of the act of 1885, there is no donbt, so far as expressed by the opinion of the court of last resort in the Matter of Enston, that the amendment of 1887 subjected property within the state of a non-resident decedent to the tax provided for by the acts under consideration. The fiction to which the learned surrogate made reference in his opinion, was one discussed by Judge Andrews. It was looked upon as one subject to the policy of the statute or its language, which showed a legislative intent to destroy it, which was clearly done in that statute. The language of the act of 1887 seems so clearly to embrace the property of a non-resident decedent in this state at the time of his (death, that no controversy can be well maintained with regard to it. It, therefore, applies to property within this state of a non-resident decedent and subjects it to a tax.

For this reason the order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J., concur.  