In re James' Estate

• Decision Date: 27 November 1894
• Citation: 144 N.Y. 6,38 N.E. 961
• Parties: In re JAMES' ESTATE.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 6

38 N.E. 961

In re JAMES' ESTATE.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term, First department.

In the matter of the appraisal of the property of Frank Linsley James, deceased. From a judgment of the general term (28 N. Y. Supp. 351) reversing a decree confirming the appraiser's report (27 N. Y. Supp. 288), the appraiser appeals. Affirmed.

Edward S. Kaufman, for appellant.

Edward M. Shepard, for respondents.

GRAY, J.

At the time of his death in Africa, in April, 1890, the testator was a citizen of the kingdom of Great Britain, and was there domiciled. By his last will, which he had made at the place of his domicile, he disposed of a very large estate. He left property in Great Britain which was valued at $477,630, and property in this country which was valued at $2,303,472.53. He gave legacies to collateral relatives and to charities, which, in the aggregate, amounted to $236,810. The residue of his estate was given to his executors, upon trusts for the benefit of his two brothers. The charitable bequests were to foreign corporations, and the persons to whom legacies were given were residents of Great Britain, with the exception of two, who resided in this country, though where does not appear. He left no debts here. His will was proved in England in June, 1890, and, afterwards, as the result of an action brought in the courts of this state by the executors, was established here, and letters testamentary were issued thereon to John Arthur James, one of the executors named, and also a resident of Great Britain. He applied to the surrogate of the county of New York for the appointment of an appraiser for the purpose of an appraisement under the law of this state imposing a tax upon gifts, legacies, and collateral inheritances. Besides the facts which have been stated, it appeared that by the will all of the legacies were to be paid within three months of the testator's death, free of duty; that a portion of the amount given in legacies had already been paid in Great Britain, out of the estate there, together with the duties imposed on legacies by the law of that country; and that the property in this country consisted, among other things, in the stock and bonds of corporations of this and of other states, which securities were deposited in this state at the time of testator's death. The surrogate, finding that the value of the estate here amounted to .82825 per cent. of testator's whole estate, decided that the legacies given by the will were liable to taxation, under the law, on the basis of that percentage, and he also held that in valuing the assets of the estate here there should be included the stock and bonds of the foreign corporations. Upon appeal to the general term of the supreme court the decree of the surrogate was reversed in those respects, and the rulings referred to present the questions for our consideration upon this appeal.

The act in force at the time, which imposed a tax on gifts, legacies, and collateral inheritances, is contained in chapter 713 of the Laws of 1887. By the first section it was provided that ‘all property which shall pass by will, or by the intestate laws of this state, from any person who may die seized or possessed of the same while a resident of this state, or if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state, * * * shall be and is subject to a tax of five dollars on every hundred dollars of clear market value of such property,’ etc. The change in the existing law which the passage of this act effected was to impose a succession tax with respect to the property of nonresident decedents which should be within this state. As the law stood before, under the act of 1885, it could not be gathered from its language that the legislature intended to impose a tax upon property in this state passing from nonresident decedents, and the act of 1887 was undoubtedly passed in order to comprehend such cases. In re Enston's Will, 113 N. Y. 174, 21 N. E. 87. Under its provisions the question of the residence of the deceased owner and of the legatee or of the collateral kindred is, of course, of no materiality. It is the property of the decedent which is sought to be subjected to the tax. The right of the state to impose the tax is based upon its dominion over what property is situated within its territory. If the property consisted in personalty, its legal situs, although it in fact existed elsewhere than in the state, would follow the domicile of its owner, and thus, if he were a resident of the state, become subject to taxation there. Another clear inference from the language of the amending statute is, in our judgment, that the tax is laid only in the case where property of...