
    In the Matter of the Appraisal of the Property of Henry Bronson, Deceased, Under the Act in Relation to Taxable Transfers of Property. Samuel L. Bronson and Nathan S. Bronson, as Executors of the Will of Henry Bronson, Deceased, and as Beneficiaries Thereunder, Appellants; Ashbel P. Fitch, Comptroller of the City of New York, Respondent.
    
      Transfer tax—stocks and bonds of New York corporations in possession of a nonresident at his domicile—not taxable under the laws of New York.
    
    In a proceeding taken to compel the payment of a transfer tax, it appeared that the domicile of the decedent was in the State of Connecticut; that at the time of his death he owned bonds issued by railroad corporations incorporated under the laws of New York, and stocks of various corporations incorporated under the laws of New York; that all the bonds and the certificates for all the stock in question had been, and at the time of the decedent’s death were, in his possession at his domicile; that he left a will by which all these were bequeathed to residents of the State of Connecticut and that all had been transferred, before the institution of this proceeding, by the executors to the residtiary legatees.
    
      Held, that neither the stocks nor bonds were taxable in the State of New York;
    That while they were property, they were property in the hands of the holders and not property of the corporations, and that, in so far as they were held by non-residents of the State, they were property beyond its jurisdiction.
    Appeal by Samuel L. Bronson and another, as executors of the will of Henry Bronson, deceased, and as beneficiaries thereunder, from an order of the Surrogate’s Court of the county of New York, bearing date the 21st day of January, 1896, and entered in said Surrogate’s Court affirming an order, bearing date the 17th day. of January, 1896, and entered in said Surrogate’s Court affirming an appraisement of the property of their testator, claimed to be subject to taxation under the Collateral Inheritance Law (Chap. 399 of 1892), and a determination of the amount of such tax.
    
      Howard Mansfield, for the appellants.
    
      Emmet R. Oleott, for the respondent.
   Van Brunt, P. J.:

The decedent, Henry Bronson, prior to his death, had his domicile in the city of New Haven, in the State of Connecticut, where he died on the 26th of November, 1893. At the time of his death he owned bonds issued by railroad corporations incorporated under the laws of New York, and stocks of various corporations incorporated under the laws of New York. All the bonds and the certificates for all the stock in question had been, and at the time of the decedent’s death were, in his possession at his domicile. He left a will by which he bequeathed these bonds and stock to residents of the State of Connecticut; and all the bonds and stock in question were formally transferred before the initiation of these proceedings to the residuary legatees by the executors. This proceeding was begun to compel the payment of a transfer tax on all the property in question under the provisions of chapter 399 of the Laws of 1892. The imposition of the tax was contested by the executors and residuary legatees on the ground that none of said bonds and stocks was properly subject to a transfer tax in the State of New York, since the bonds and certificates of stock were all, at the time of the decedent’s death, and for some time prior thereto, had been, in the State of Connecticut, where the decedent had his domicile. The appraiser appointed by the surrogate to appraise the property in question made his report appraising the value of the stock and bonds, and by a subsequent order the interest of each of the beneficiaries was determined and the tax fixed. From this order the executors and residuary legatees appealed to the surrogate, and the surrogate affirmed the order fixing the tax, and from the order thereupon entered this appeal is taken.

The statute above referred to, imposes a tax upon the transfer of any property, real or personal, beyond a certain value, first, 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; and, second, when the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death.

The want of power in this State to tax personal property under the circumstances above mentioned, so far as the bonds are concerned, does not seem open to question since the decision of the United States Supreme Court in the case of The State Tax on Foreign Held Bonds (15 Wall. 300-308). It was there held that the bonds issued by a railroad company are undoubtedly property, but property in the hands of the holders, not property of the obligors, and that, so far as they are held by non-residents of the State, they are property beyond the jurisdiction of the State.

It is urged, however, upon the part of the respondent, that there may be a difference in character between property in bonds and that in certificates of stock; and that it was held in The Matter of James (144 N. Y. 12) that the share certificates which a testator holds represent the interest which he possesses in the corporation which issued them, and that the legal situs of that species of personal property is where the corporation exists, or where the testator has his domicile. It was not necessary in the case cited to determine which was the legal situs of the personal property, because the testator was a native of Great Britain, and the stocks and bonds in question were stocks and bonds of foreign corporations. The court recognized the fact that the situs of property, such as certificates of stock and bonds, was not governed by the fact that such certificates and bonds were physically within this State. In that case the certificates and bonds were, at the time of the death of the testator, in this State; and it was held that they were not property in this State within the meaning of the act, and could not properly be included in the testator’s estate here, for the purpose of taxation under the act. In the case of Enston (113 N. Y. 174) this rule was recognized, the court saying that such property as stocks, bonds and other dioses in action attends the owner and has its situs at his domicile, unless there is something in the policy of the statute or its language which shows a different legislative intent. In The Matter of Romaine (127 N. Y. 80) it was held that the personal property of a non-resident invested or habitually kept by him in this State is subject to taxation under the Collateral Inheritance Tax Law. In the case of Swift (137 N. Y. 77) and in The Matter of Merriam (141 id. 479) the testator was a resident of the State, and it was held that certain personal chattels without the State in one case, and stocks of foreign corporations in the other case, should be included in the appraisement of the estate for the purpose of taxation. “ The decision in each case,” the court said in The Matter of James, above cited, “ of course, rested upon the theory that the legal situs of the personalty could be regarded as at the owner's domicile

A consideration of the rules laid down by the court in the cases cited indicates clearly that no distinction is made between the stocks of corporations and the bonds of such corporations in respect to the rule that the domicile of the owner fixes the place of taxation, where the securities are kept at the domicile by the owner.

We are of opinion, therefore, that the orders appealed from should be reversed, with costs and disbursements.

Barrett, Rtjmsey, Williams and Patterson, JJ., concurred.

Order reversed, with costs and disbursements.  