
    In the Matter of the Appraisement of the Estate of Prank Linsly James, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 13, 1894.)
    
    1. Tax—Transfer—Non-resident.
    - A legacy under the will of a non-resident testator, who leaves assets in this state, is not taxable if not paid out of the assets here. !
    3. Same—Stock—Foreign.
    Shares of stock of a foreign corporation owned by a non-resident testator, the certificates of which are in this state, are not taxable.
    Appeal from a decree confirming the appraiser’s report, assessing a tax on certain legacies.
    
      D. B. Ogden, for app’lt; Edward S. Kaifman, for resp’t.
   Follett, J.

It seems to have been settled that in case a resident citizen of another state or country, and domiciled therein, dies, leaving personalty within this state, it, or the right to succeed to it, is taxable' under chapter 713 of the Laws of 1887, In re Romaine, 127 N. Y. 80; 38 St. Rep. 76, and in case a resident citizen of this state, and domiciled therein, dies, leaving personalty in another state' or country, it, or the right to succeed to it, is taxable under that act. In re Swift, 137 N. Y. 77 ; 50 St. Rep. 81. Under these decisions the property of the testator within this state, passing to foreign legatees, is taxable under the act above mentioned. It is alleged in the petition that the, foreign legatees have been paid out of the property of the testator in England ; but whether this allegation is true or false was not determined by the appraiser nor by the surrogate’s court, nor does it appear whether these legacies were paid before or after the will was established in this state. If the legacies bequeathed to the foreign legatees were paid out of the property in England, those legatees have not succeeded to any property in this state, nor has any property passed, to them by virtue of the laws of this state, aa’d their right of succession is not taxable under this act. This does not affect the amount of revenue derivable from the property within this state, because the residue is increased. It has been held, In re Swift, supra, that the right to succeed to personalty situate in another state, and owned by a resident citizen of this state at the time of his death, is taxable under the act; but, so far as we know, it has never been held that the right to succeed to personalty situate ip. another state, and owned by a decedent who never resided nor had been domiciled in this state, is taxable under the act. It appears from the facts found by the appraiser that a considerable portion (the amount not stated) of the testator’s personalty found to have been within this state at the date of his death consists of shares in corporations incorporated under the laws of other states, the value of-which was included in the total valuation of $2,250,979.64. Under the evidence, presumably, the certificates representing these shares were in this state when the testator died, though it was not so expressly found. These certificates are not shares or property under the laws relating to taxation, nor under the sections of the Code relating to attachments. They are merely evidence of title to the shares. In re Will of Enston, 113 N. Y. 174, 181; 22 St. Rep. 569 ; Plimpton v. Bigelow, 93 N. Y. 592, 600 ; Burr v. Wilcox, 22 N.Y. 551; Van Allen v. Assessors, 3 Wall. 573, 598, 599 ; Winslow v. Fletcher, 53 Conn. 390 ; 4 Atl. 250; Hawley v. Brumagim, 33 Cal. 394, 399 ; Cook, Stockh. & Corp. Law, § 10. The testator not being a citizen of this state, and the property represented by the certificates not being therein at the time of his death, it is not, nor is the right to succeed to such property, taxable under chapter 713 of the Laws of 1887, and the surrogate’s court erred in including it in the amount from which the ratio was found. The decree of the surrogate’s court should be reversed, with costs to the appellant, and a new hearing granted in that court.

All concur.  