
    Matter of the Appraisal under the Acts in Relation to Taxable Transfers of Property of the Estate of Mary Preston, Deceased.
    
      (Surrogate's Court, Kings County,
    
    
      February, 1902.)
    Transfer Tax — Bonds of Non-Resident When Exempt.
    Bonds, securing mortgages on real property in Kings county in' the State of New York, which a resident of New Jersey kept at her residence until her death there, are not subject to the transfer tax as not only the legal situs of the indebtedness, but also the actual situs of the bonds was in New Jersey when she died.
    Affirmed, 75 App. Div. 250.
    Appraisal for transfer tax.
    Edward IT. Fallows, for State Comptroller.
    Joseph J. ITood, for executors and residuary legatees.
   Chubch, S.

— Tbe decedent, a resident of New- Jersey, owned certain bonds secured by mortgages on real property in Kings county, wbicb sbe kept at ber residence.

Tbe appraiser bas beld these bonds all subject to tbe transfer tax.

In Matter of Bronson, 150 N. Y. 1, it was beld that bonds of domestic corporations owned and kept by a nonresident were not tbe subject of tbe tax, tbe court saying (p. 8) : “ Tbe legal situs of tbe indebtedness was at tbe creditor’s, domicile and as tbe actual situs of tbe bonds themselves was, also, there, upon no theory can it be beld that tbe provisions of tbe Transfer Tax Act could reach them in its operation.”

If this is so as to tbe bonds of' a corporation (wbicb presumably were secured by tbe usual corporation mortgage), then- I see no reason why it should not also apply in tbe case of tbe bond of an individual. Tbe counsel for tbe State Comptroller, however, insists that such a distinction should be made and that the Court of Appeals has recognized this distinction by its decision. Matter of Romaine, 127 N. Y. 80.

In that case the property of the nonresident decedent was kept in a safe-deposit box in New York State. Among such property was a bond and mortgage on real estate in New York city. The court held that such property was subject to the tax, but seemed to base its decision upon the fact that this was property “ within the State,” on account of its deposit in such safe-deposit box, and no attempt was made to differentiate between the bond and mortgage and other securities.

Under these circumstances I feel inclined to adopt the reasoning in Matter of Bronson, and am fortified in so doing by the decision of Judge Abbott in Matter of Moran, November 25, 1901, in which he held that bonds and mortgages on property in this State owned by a nonresident and kept by him without the State were not subject to the tax.

An order may be submitted vacating the assessment and remitting the matter to the appraiser.

Assessment vacated and matter remitted to appraiser.  