
    (60 Misc. Rep. 645.)
    In re GIBBS’ ESTATE.
    (Surrogate’s Court New York County.
    October, 1908.)
    1. Taxation (§ 867) — Property Subject — Lite Insurance Policies — Inheritance Tax.
    Policies of insurance on the life of a nonresident decedent are not taxable under Transfer Tax Law (Laws 1896, p. 868, c. 908) §§ 220-242, where they were enforceable in the state where the companies were incorporated, though they were in the state at the time of decedent’s death.
    [Ed. Note.—Eor other cases, see Taxation, Dec. Dig. § 867.*]
    
      2. Taxation (§ 867)—Property Subject—Inheritance Tax.
    A negotiable note or a bond secured by real estate in the state of which decedent was a resident at the time of his death is subject to the transfer tax, if located in New York.
    [Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 1681-1684; Dec. Dig. § 867.*]
    In the matter of the estate of William W. Gibbs. From an order fixing the tax, the administrator appeals.
    Reversed, and report remitted for correction.
    William W. Gibbs, Sr., and Murphy &- Fultz, for appellant.
    John S. Jenkins, for State Comptroller.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   BECKETT, S.

Appeal by the administrator from an order fixing tax upon the ground that the appraiser erred in including in the taxable assets of the estate (1) the proceeds of a policy of insurance in the Home Life Insurance Company, a policy of insurance in the Mutual Life Insurance Company, a policy of insurance in the Royal Arcanum, and a policy of insurance in the Mystic Circle; (2) a note payable to decedent, which note was located in New York at the time of his death. Decedent was a resident of Virginia. No evidence was adduced before the appraiser to show in what state either of the insurance companies was incorporated; but from an affidavit submitted (without opposition) after the filing of the notice of appeal it appears that both the Royal Arcanum and the Mystic Circle are foreign corporations, and as the decedent was a nonresident of the state the policies in these companies are not taxable.

The attorney for the respondent contends that, as the policies in the Mutual Life Insurance Company and the Home Life Insurance Company were in this state at the .time of decedent’s death, this matter is distinguishable from Matter of Gordon, 186 N. Y. 471, 79 N. E. 722, 10 L. R. A. (N. S.) 1089, where the policy in controversy was located outside the state. This contention, however, is untenable, as the point upon which the Gordon Case was decided by the Court of Appeals, and differentiated from the other cases decided by that court in which it had been held that an indebtedness due from a resident to a nonresident was taxable, was that in the Gordon Case it was not necessary for the creditor to come to this state and invoke the assistance of our courts for the purpose of enforcing his claim. In the matter under consideration the affidavit filed by the administrator shows that both the Home Life Insurance Company and the Mutual Life Insurance Company had sufficient property in the state of Virginia to satisfy the claims" of the decedent, and that a person upon whom process could be served had been designated in that state by each of these companies. Therefore the administrator could have enforced his claim against these companies without being obliged to seek the intervention of our courts.- These policies of insurance, therefore, come within the principle laid down in the Gordon Case and are not taxable. Matter of Gordon, 186 N. Y. 471, 79 N. E. 722, 10 L. R. A. (N. S.) 1089; Matter of Horn, 39 Misc. Rep. 133, 78 N. Y. Supp. 979.

In the affidavit submitted by the administrator the note payable to decedent is described as “mortgage on property in the state of Virginia,” while the appraiser in his report describes it as “note on property in the state of Virginia.” The papers do not contain a copy of •'the note, nor any description of it, which would enable the court to determine whether it is an ordinary promissory note or an obligation in the shape of a bond secured by real estate in Virginia. If it is to be regarded as a negotiable promissory note, it is taxable. Matter of Wall, N. Y. Law J., Jan. 17, 1905, affirmed without opinion, 105 App. Div. 643, 94 N. Y. Supp. 1166; Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct. 277, 47 L. Ed. 439. If it is to be regarded as a bond, the fact of its having been located here at the time of decedent’s death makes it taxable. Matter of Whiting, 150 N. Y. 27, 44 N. E. 715, 34 L. R. A. 232, 55 Am. St. Rep. 640; Matter of Morgan, 150 N. Y. 35, 44 N. E. 1126.

The order fixing tax should be reversed, and the report remitted to the appraiser for correction.

Order reversed, and report remitted to appraiser for correction.  