
    
      In re Romaine's Estate.
    
      (Supreme Court, General Term, First Department.
    
    October 24, 1890.)
    Descent and Distribution—Inheritance and Legacy Taxes—Non-Residents.
    Laws N. Y. 1885, c. 483, as amended by Laws N. Y. 1887, c. 713, so as to provide that “all property which, shall pass by will or by the intestate laws of the state from any person who may die seised or possessed of the same while a resident of this state, 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, ” to any person other than certain relatives and others designated, shall be subject to tax. Held, that personal property within the state, of a non-resident decedent, is liable to the tax, notwithstanding the general rule that the situs of personal property is the domicile of the owner.
    Appeal from surrogate’s court, New York county.
    Application by the district attorney for the assessment of a tax on collateral inheritances in the estate of Worthington Romaine, deceased. From the orders of the surrogate making such assessment, the administrator and collateral next of kin of Romaine appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Robert L. Redfleld, for appellants. John R. Fellows, Dist. Atty., (Benj. F. Dos Passos, Asst. Dist. Atty., of counsel,) for respondent.
   Brady, J.

Romaine, the decedent, died intestate in Virginia in 1888. He left no wife or children. His domicile was in Virginia. 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 Stuy vesant Safe-Deposit Company in the city of New York. The tax was imposed under chapter 483 of the Laws of 1885, as amended by chapter-713 of the Laws 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 seised 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 Re Tulane, (who was a resident of the state of New Jersey,) 4 N. Y. Supp. 36, 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 ease not within the language nor the spirit of the statute. And it was subsequently held, in Re Enston, 113 N. Y. 174, 21 N. E. Rep. 87, that property within this state which passed by will or intestacy from a non-resident 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 seised 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 transferrer. 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 mandatory 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 Action, namely, that the property sought to be subjected to the tax attends the owner, and has its situs at his domicile, 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 non-resident thereof at the time of his death, seemed wholly opposed to this rule; and this view is regarded as unanswerable. In the concluding opinion of Andrews, J., in Re Enston, supra, he declared that the Laws of 1887 so amended the act of 1885 as to subject to its operation the property within this state of a nonresident 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 doubt, so far as expressed by the opinion of the court of last resort in Re 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 nonresident 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 $10 costs and disbursements. All concur.  