
    In the Matter of the Transfer Tax upon the Estate of James S. Gibbes, Deceased. Farmers’ Loan and Trust Company, as Trustee under the Last Will and Testament of James S. Gibbes, Deceased, and Others, Appellants ; The Comptroller of the State of New York, Respondent.
    
      Bonds of .foreign corporations, owned by a non-resident and at his death in 1888 on deposit in the State of New York and which pass to non-residents, are not subject to inheritance tax.
    
    Bonds of corporations foreign to the State of New York, owned by a resident of the State of South Carolina and which, at the time of his death in 1888, were on deposit at a bank in the city of New York and passed under his will or under statutes of distribution to non-residents of the State of New York, were not subject to a collateral inheritance tax under chapter 483 of the Laws of. 1888 or under chapter 713 of the Laws of 1887, which amended the act of 1885.
    Patterson and O’Brien, JJ., dissented.
    Appeal by the Farmers’ Loan and Trust 'Company, as trustee under the last will and testament of James S. Gibbes, deceased, and others, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the lltli day of. May, 1903, affirming an order' theretofore entered in said Surrogate’s Court on the ,18th day of March, 1903, and appraising the transfer tax upon the property transferred by the decedent’s will.
    
      
      James F. Horan, for the appellant Farmers’ Loan and Trust Company.
    
      Richard Reid Rogers, for the appellants Charles H. Simonton and another.
    
      H. R. Wesselman, for the respondent.
   Laughlin, J.:

The testator was a resident of Charleston, S. 0., and he died on the 26th day of April, 1888, leaving an estate of over $700,000, of which $300,000 was invested in bonds of corporations foreign to the State of New York, which were on deposit at the time of his death with the Bank of New York in the city of New York. He left a last will and testament which was admitted to probate in South Carolina. The testator devised his property in trust with life estates to his two sons and grandchild and remainders to their respective issue, or, in the event of the death of all lineal descendants, to certain individuals and corporations. On the 18th day of May, 1899, the testator’s son James, his last -surviving descendant, died and the remainders vested in the individuals and corporations as provided for in the will in that contingency, except the part as to which the testator died intestate, as held by this court in Farmers’ Loan & Trust Co. v. Ferris (67 App. Div. 2), they all being non-residents of the State of New York and none exempt from the collateral inheritance tax provided the property is subject to the provisions of that law. The heirs and next of kin of the testator were all non-residents of this State and likewise not exempt from the collateral inheritance tax provided it would be otherwise applicable. This property having been left in trust and it being uncertain whether it was transferred to persons or corporations liable for the collateral inheritance tax, its appraisal was postponed until the happening of the contingency which resolved the uncertainty. The sole question presented by the appeal is whether these bonds of foreign corporations left on deposit with the bank in this State at the time of the testator’s death, he being a non-resident, and transferred by his will or by statutes of distribution to non-residents are taxable under the provisions of the Collateral Inheritance Tax Law, so called. It is conceded that the question depends upon the constvuction of the provisions of chapter 483 of the Laws of-1885, as amended by chapter 713 of the Laws of 1887. The act of 1885 has been construed by the Court of Appeals on this precise point and - it was held that such bonds were not taxable thereunder. (Matter of Enston, 113 N. Y. 174.) In the opinion delivered in that case, concurred in by the court, Judge Andrews said: “The bonds of foreign corporations in the hands of the agents.of the decedent here were not, in a legal sense, property within.this State, and they were not, under the general laws or the policy of the State, taxable here.” The question is thus narrowed to a consideration of whether' by the amendments made in 1887 the general law or policy of the State was so changed as to render such bonds taxable. The 1st section of the amendatory act amends section 1 of the original act so as to read, so far as material,-as follows : “ After the passage of this act all property which shall pass by will * * * from any person who.may die seized 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 * *' * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market value of such property.” The only material change applicable to the1 question under consideration is shown in italics, and our attention is drawn to no other provision of the amendatory act having a material bearing upon the question and we find none. The purpose and effect of the amendment, so far as material upon this appeal, was to subject to taxation property within this State of a non-resident decedent whether he died testate or intestate, it having been' declared by the Court of Appeals in Matter of Ehston (supra) that such property was not taxable under the original act. (Matter of Romaine, 127 N. Y. 80.) In Matter of Romaine (supra). it was held that the personal property of a non-resident testator deposited or habitually kept within this State was subject to the Collateral inheritance tax. It appears in the statement of facts in that case that this property consisted, among other things, of stocks and bonds of different corporations, but it is expressly stated that it did not appear “ whether said stocks and bonds were issued by foreign or domestic corporations.” In the discussion in the .opinion no mention of corporate stock or bonds is made. There is no more reason for concluding that the Court of Appeals intended in that case to hold that the bonds of a foreign corporation left here by a non-resident' testator are taxable than that the stock of a foreign corporation left here by such testator is taxable, and it has been held under this amendatory act of 1887 that such stock of a foreign corporation is “ not property in the legal sense,” and is not taxable here. (Matter of James, 144 N. Y. 6.) It has also been held under the amendatory act of 1892 (Laws of 1892, chap. 399), which is much broader, that the stock of a domestic corporation owned by a non-resident and not within this State at the time of his death is taxable here, and it necessarily follows from the reasoning of this opinion also that the stock of a foreign corporation is not taxable "here. (Matter of Bronson, 150 N. Y. 1.) Under the amendatory act of 1892, construed in the light of the Statutory Construction Law (Laws of 1892, chap. 677), the Court of Appeals lias held that such bonds of a foreign corporation left within this State by a non-resident are now taxable. (Matter of Whiting, 150 N. Y. 27; Matter of Morgan, 150 id. 35.) It has also been held that money left on deposit by a non-resident within this State is also taxable (Matter of Houdayer, 150 N. Y. 37; Matter of Blackstone, 69 App. Div. 127; affd., 171 N. Y. 682; Blackstone v. Miller, 188 U. S. 189), but these decisions go upon the theory that the money upon deposit in the bank is the same in effect as if the testator had placed the money in a deposit vault, and that, therefore, it is property left by him within this State. In Matter of James (supra) the testator was a non-resident, but he left w-ithin this State stocks and bonds of domestic and foreign corporations. It appeared that the executors had elected to appropriate these stocks and bonds to the payment of legacies to parties not subject to the collateral inheritance tax. . The Court of Appeals held that on account of such election on the part of the executors none of the stock or bonds was taxable, but it then proceeded to consider the question whether in any event the stock of a foreign corporation would be taxable within this State and held that, as already stated, it would not. In this discussion, however, no mention is made of the bonds. Hone of these decisions, as we view them, is decisive of the question under consideration, but we are of opinion that neither under the amendatory act of 1887 any more than under the original act of 1885, are such bonds property left within this State and subject to the payment of the collateral inheritance tax.

It follows, therefore, that the Order should be reversed, with .ten dollars costs and disbursements.

Van Brunt, P. J., and McLaughlin, J.; concurred; Patterson and O’Brien, JJ., dissented.

Order reversed, with ten dollars costs and disbursements.  