Constitutionality of the Act.

215. Constitutionality of the Act.

The constitutionality of the Succession or Transfer Tax Law of this State, so far as it relates to the right to tax the transfer of the property of a resident dece

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Constitutionality of the Act.

dent, has been fully and clearly established. (Ante, p. 3, and cases cited.) And the right includes the personal property of a resident decedent, although such property was not within this State at the time of the decedent's death (Matter of Swift, 137 N. Y. 77–88), for our courts will apply the maxim mobilia personam sequuntur, the effect of which is to make the legal situs of the property here at the domicile of the decedent.

But in the case of a nonresident decedent whose property within this State has received the protection of our laws and our courts, equally with the property of a resident decedent, the courts hold that the legal fiction must give way to the actual facts, and will refuse to apply the maxim, the effect of which would be to defeat the right of the State to impose a succession tax upon "property within the State," belonging to a nonresident decedent. Matter of Romaine, 127 N. Y. 80-87; Matter of Whiting, 150 N. Y. 27.

In Blackstone v. Miller, 188 U. S. 189, the validity of a tax upon the transfer of moneys left by a nonresident in a bank in New York city was upheld. Justice Holmes, writing the opinion, says:

Succession to a tangible chattel may be taxed wherever the property is found, and none the less that the law of the situs accepts its rules of succession from the law of domicile, or that by the law of domicile the chattel is a part of a universitas, and is taken into account again in the succession tax there.

No doubt this power on the part of two States to tax on different and more or less inconsistent principles leads to some hardship. It may be regretted, also, that one and the same State should be seen taxing on the one hand according to the fact of power, and, on the other hand, at the same time according to the fiction that, in succession after death, mobilia sequuntur personam and domicile governs the whole, but these inconsistencies infringe no rule of constitutional law.

Power over the person of the debtor confers jurisdiction, we repeat. And this being so, we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the State at the time of the death. The maxim mobilia sequuntur personam has no more truth in the one case than in the other. When logic and the policy of the State conflict with a fiction due to historical traditions the fiction must give way.

This tax did not impair the obligation of the contract, and does not deprive the plaintiff in error of any of the privileges and immunities of a citizen of New York.

216. History of the Law.

Chapter 483 of the Laws of 1885, in effect June 30th of that year, did not impose a tax upon the property of a nonresident within this State at the time of such decedent's death. Matter of Enston, 113 N. Y. 174.

By chapter 713 of the Laws of 1887, in effect June 25th of that year, section 1 of the Act of 1885 was amended so as to impose a tax upon the property of nonresident decedents within this State, and this amendment first came up for construction in the Matter of Romaine, 127 N. Y. 80. Worthington Romaine died September 27, 1888, intestate, and a resident of Virginia, his next of kin being a brother and sister, residing in this State, and two nephews and a niece. who were nonresidents. Decedent was lessee of a box in a safe-deposit company in New York at the time of his death and for several years prior thereto, in which he kept securities, etc. The part of his estate so invested and kept in this State to which the nephews and niece were entitled, being one-third of the whole amount, was appraised at $23,742.15.

Contention was made that this amendment did not apply to a nonresident intestate, because property

"which shall pass by the intestate laws of this State" is expressly mentioned to the implied exclusion of property passing by the intestate laws of other States, and that this act, in its present form, was designed to meet cases of succession by will, but not intestacy, unless the decedent was a resident.

The court held that the language of the act, as amended, did not support this contention when the entire section is read as a whole, and that property of the same kind situated in the same place, receiving the same protection from the law and administered upon in the same way would naturally be required to contribute toward the expenses of government upon the same basis regardless of whether the last owner died testate or intestate. The order assessing the tax was affirmed.

**

The application of the amendment of 1887 was, however, limited by the language of section 15, which provided that "the Surrogate's Court in the county in which the real property is situate of a decedent who was not a resident of the State shall have jurisdiction to hear and determine all questions in relation to the tax arising under the provision of this act," and the courts thereafter held that, although there might be personal property of a nonresident decedent within this State at the time of his death, which clearly came within the terms of the amendment, yet it could not be taxed unless there was real property also belonging to such decedent upon which the jurisdiction of the surrogate could be based. Matter of Embury, 19 App. Div. 214, 45 N. Y. S. 881; affd., 154 N. Y. 746. No opinion. (In the Romaine Case (supra), it did not appear whether the decedent also had real property within this State or not.)

Sec. 15, Chap. 713, Laws 1887, Is Constitutional.

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No attempt was made to remedy this jurisdictional provision until the repeal of the Collateral Inheritance Act in 1892, and the enactment of chapter 399, Laws of 1892, in effect May 1st of that year.

217. Section 15 of Chapter 713, Laws of 1887, Relating to the Jurisdiction of the Surrogate, Is Constitutional.

In the Matter of Lord, 111 App. Div. 152, affd., 186 N. Y. 549, affd., sub nom. Beers v. Glynn, 211 U. S. 477, it was claimed that chapter 713, Laws 1887, in so far as it applied to the property of nonresidents, was not capable of verbal separation as between provisions relating to the property of nonresidents who owned land in this State, and provisions relating to the property of nonresidents who did not own land in this State, nor can the Legislature have intended that it should apply to the former and not to the latter. Being unconstitutional under the Fourteenth Amendment as to the property of such nonresidents as did not own land in New York, in that it takes their property without due process of law, it was therefore unconstitutional as to the property of all nonresidents.

That the rule of separability requires that the remaining portion of the act, after the unconstitutional provisions have been eliminated, shall be such as it is clear that the legislature would have enacted without the eliminated portions. That the discrimination shown by the attempt to tax the bonds of decedent, while bonds of the same class belonging to the estate of her husband, who died only ten days before her, were not taxed, constitutes a violation of the rule requiring the equal protection of the laws.

The U. S. Supreme Court held that so far as the Federal Constitution is concerned, the power of the State