
    In the Matter of the Transfer Tax upon the Estate of Harriette Willmer, Deceased. The Comptroller of the State of New York, Appellant; Florence Wheeler, as Executrix, etc., of Harriette Willmer, Deceased, Respondent.
    First Department,
    December 6, 1912.
    Taxation — transfer tax upon shares of a joint stock association owned by a non-resident.
    Where a resident of New. Jersey dies owning shares of a joint stock association having its principal place of business in the city of New York, the shares represent property within this State and are subject to a transfer tax upon that proportion of them value which the property within the State bore to the entire property of the association at the time of the owner’s death.
    Appeal by the Comptroller of the State of New York from so much of an order of the Surrogate’s Court of New York county, entered in the said Surrogate’s Court on the 1st day of December, 1911, as sustains the fourth ground of appeal of the executrix herein from an order assessing a transfer tax.
    
      Henry A. Miller, for the appellant.
    
      Louis Dean Speir, for the respondent.
   Miller, J.:

The decedent, a resident of New Jersey, owned 1,448 shares of the American News Company, a joint stock association having its head office or principal place of business in the city of New York. The learned surrogate held that said shares represent property within the State of New York, subject to the transfer tax to the extent only that the association owned property within the State, i. e., that they were taxable upon that proportion of their value which the property within the State bore to the entire property of the association at the time of the decedent’s death.

The appellant relies upon Matter of Jones (172 N. Y. 575), and it is only necessary for us to supplement the able opinion of the learned surrogate (75 Misc. Rep. 62) by distinguishing that case, which was not referred to by him. In that case the decedent was a resident of the State, and the point decided was that the shares of the joint stock association owned by him were personal property and taxable to their full value, notwithstanding a part of the assets of the association consisted of real estate which, if it had descended to the heirs of the deceased, would have been exempt. The point now raised was not involved in that case or considered by the court, and what was said in the opinion as to the similarity between a joint stock association and a corporation must be considered with reference to the precise point before the court, i. e., the right of succession. The distinction between a corporation and a joint stock association, as concerns the point for decision, is that a corporation is an artificial entity, existing in contemplation of. law in the State of its creation. It can have no existence elsewhere and is recognized in other jurisdictions only by comity. It is a citizen within the meaning of certain provisions of the Federal Constitution. Whereas, a joint stock association, though it have some of the rights of a corporation and may sue and be sued in the name of its president, still does not exist as an entity distinct from its members. (See Chapman v. Barney, 129 U. S. 677.) Even if, unlike a partnership which it really is, it can be said to exist as an artificial being, it owes its existence not' to the State but to the contract of its members and may, therefore, be said to exist wherever it does business or owns property. In that sense its analogy to a corporation is to one organized under the laws of two or more States.. (See Matter of Cooley, 186 N. Y. 220.)

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Laughlin, Clarke and Soott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  